Conservatives Are Coming for No-Fault Divorce

After the fall of Roe, right-wing media have been ratcheting up their rhetoric against no-fault divorce. Expect policy to follow.

In Depth
Conservatives Are Coming for No-Fault Divorce

Now that Roe v. Wade has been overturned, Republicans are already looking ahead to their next moral crusades, and it sure looks like they’ve found one in… divorce. A new report from Media Matters for America shows a rising trend of right-wing influencers and Republican leaders and politicians, including U.S. Senate candidate J.D. Vance, advocating for the end of no-fault divorce—a policy that allows people to end a marriage without being required to prove wrongdoing by their partner, including adultery, abuse, or desertion.

No-fault divorce, which was first enacted in California in 1969, has always been a feminist issue. It’s allowed domestic abuse victims to leave a bad marriage without onerous barriers, and it certainly empowers women and all people to escape legally binding situations with someone they don’t love. One would think no-fault divorce is a no-brainer—a completely non-controversial issue decided half a century ago.

But Justice Clarence Thomas’ concurring opinion in the Supreme Court’s decision overturning Roe very clearly opened the door for further rights, particularly around marriage, to be reversed. “We have a duty to correct the error established in those precedents,” he wrote, while specifically calling the Griswold v. Connecticut (1965, birth control), Lawrence v. Texas (2003, same-sex intimacy), and Obergefell v. Hodges (2015, same-sex marriage) decisions “demonstrably erroneous.” And already, the Texas Republican Party—the same people currently suing the Biden administration for the right to let pregnant people die—includes a proposal “to rescind unilateral no-fault divorce laws and support covenant marriage and to pass legislation extending the period of time in which a divorce may occur to six months after the date of filing for divorce” in its 2022 party platform.

Last month, Jezebel’s Caitlin Cruz reported that Ohio’s J.D. Vance had suggested people stick it out in “unhappy” or “maybe even violent” marriages for their kids’ sake, as if abusive intimate partners aren’t a safety risk to children. His full remarks on the matter:

“This is one of the great tricks that I think the sexual revolution pulled on the American populace, which is the idea that like, ‘Well, OK, these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy.’ And so getting rid of them and making it easier for people to shift spouses like they change their underwear, that’s going to make people happier in the long term.”

Vance reportedly made these comments last September at a Christian high school in California.

In June, Vance’s arguments were echoed by popular conservative influencer Tim Pool in a segment on his show that was delightfully titled “No-Fault Divorce Has DESTROYED Men’s Confidence In Marriage, Men Don’t Want To Get Married Anymore.” According to Pool, we have no-fault divorce laws to blame for the rise of prenuptial agreements, which allegedly place men at risk of being robbed by gold-digging, thieving Jezebels. Willfully ignoring how the court system has a long history of retraumatizing and destroying the lives of rape and domestic violence victims—certainly including those with children—Pool says, “The courts are heavily biased in favor of women to an insane degree, especially with children.” (Notably, one woman in Louisiana briefly lost custody of her daughter to her rapist, and was forced to pay him child support earlier this year.)

In the same episode on Pool’s show, conservative commentator Ian Crossland adds, “We live in this culture where no-fault divorce is the law of the land… If young folks know they’re in an environment where divorce is not an option, I firmly believe they’re going to be more careful about who they choose to marry.”

“in many of these states if a woman cheats on you, she leaves, she takes half. So it’s not no-fault, it’s the fault of the man.”

Steven Crowder, another conservative YouTube star, responded to the overturning of Roe in June by calling for same-sex marriage to be overturned as well and naturally segued into a rant about how no-fault divorce is sexist toward men. “Oh, it’s no-fault divorce, which, by the way, means that in many of these states if a woman cheats on you, she leaves, she takes half. So it’s not no-fault, it’s the fault of the man,” he said, adding, “There need to be changes to marital laws, and I’m not even talking about same-sex marriage. … I’m talking about divorce laws, talking about alimony laws, talking about child support laws.

“If you’re a woman that comes from meager means, and you want to get wealthy—you’ve never worked, you didn’t get a degree, you have no skill set, but you’re good-looking—your best path to victory is simply to marry a man, leave him, and take half. … We need to reform divorce laws in this country.” It’s tempting to write off Crowder’s words as an obvious projection of his own insecurities that no woman would ever marry him for love, but unfortunately, there’s something more sinister afoot. Men like Crowder could go to therapy for their anxieties, but instead, they see the solution as legally entrapping and holding women hostage. It’s terrifying.

And now the conservative National Review has piled on. In a tweet sharing an article about the supposed decline of marriage, which cites lower marriage rates in recent years, Dan McLaughlin, a senior writer at the magazine, wrote: “Time to check in on how well the institution of marriage is holding up after people told us over multiple rounds of sexual revolution (no-fault divorce, gay marriage) that none of this would change anything & it would be fine.”

Conservative pundit Matt Walsh went so far as to defend Kanye West’s threatening behaviors toward estranged wife Kim Kardashian after she filed for divorce. “Hot take: it’s actually totally normal and healthy for Kanye West to be extremely, even obsessively, angry about the fact that his wife is shacking up with another man. It is in fact the most normal thing about him,” Walsh tweeted in March.

Just last May, Daily Wire commentator Michael Knowles responded to Bill and Melinda Gates’ announced separation with a bizarre rant about no-fault divorce: “We see the weakening of marriage through no-fault divorce. This is a very bad turn of events,” he said. Knowles then posed a series of questions: “Do you think society has gotten much better since the social and sexual revolutions of the 1960s? Or has it gotten a little bit worse? Are we in a period of ascendancy or a period of decline?”

Right now, attacks on divorce are primarily coming in the form of right-wing media talking points, rather than policy. But John Knefel, senior writer at Media Matters for America and author of the aforementioned report, notes that conservative lawmakers take their cues from right-wing media. “What’s crucial to remember about these sometimes fringe, sometimes more mainstream conservative shows, is that this is where a lot of right-wing ideas incubate and begin to take hold,” Knefel said. “It’s important to counteract these patterns early on, because if they become another conservative talking point, they’re much more likely to make a jump from people running their mouths on streams to serious policy that can put people in direct harm.”

“If the overturning of Roe taught us anything, it’s to take conservatives at their word when they say they want to take our freedoms.”

As Knefel has pointed out in his reporting, women are granted sole custody of children more often, owing to “men historically having higher incomes and sexist ideas about mothers being natural caregivers.” But sexist assumptions about women as children’s sole caretakers have harmed mothers in other ways. When women’s abusive partners or other adults harm their children, laws in some states criminalize the mother—there have been several recent high-profile cases of this, including Rebecca Hogue in Oklahoma and Melissa Lucio in Texas.

It’s important, Knefel says, to not write off these claims about no-fault divorce as a fringe far-right fad. After all, for years, women and pregnant people’s fears about abortion rights were ignored or even mocked by conservative politicians, and we all saw what happened in June. “Ultimately, although it might seem outlandish now, that doesn’t mean it’s going to seem outlandish two or three years from now,” Knefel said. “If the overturning of Roe taught us anything, it’s to take conservatives at their word when they say they want to take our freedoms.”

Banning divorce—like banning abortion—is, if not a recipe for trauma and abuse, at the very least a recipe for extreme unhappiness and state denial of people’s agency and personal freedoms. Yet, frighteningly enough, if right-wingers are already talking about it, history tells us it won’t be long before they start legislating it.

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