When you get accustomed to something, you tend to feel like you own it, but usually you don’t. No one feels entitled to a job they just started, but if you’ve been working for the same company for 20 years and suddenly get laid off, you feel like your rights have been violated, even though they probably haven’t been. Conversely, you probably don’t feel as “entitled” to the house you just bought as you do to the one you’ve been living in for half your life, even though your legal entitlement is the same in either case. So when, and under what circumstances, is being accustomed to something actually a factor in deciding if you are entitled to it? As a former President might say, it depends upon what the meaning of the word “it” is. Here’s a table:

Doing nothing while married to someone who does something can pay big dividends. For Lorna Wendt, doing nothing paid $20 million. Nice work if you can get it.

One fundamental problem with family law over the years, particularly here in the Bible belt, is the paternalistic notion that family law should aim to keep the divorce rate low, rather than accepting divorce as a reality and trying to smooth the process as much as possible when it happens. The theory seems to be that happy, perfectly functional marriages end abruptly because one partner wakes up on the wrong side of the bed one day and gets a divorce on a whim. Of course few if any couples actually divorce that way. Getting married on a whim, that’s another matter, so if we really are going to go the paternalistic route, perhaps we should stop worrying about the divorce rate, as such, and worry instead about the crappy-marriage rate that feeds into it. As Clemmons dentist Kirk Turner infamously told his late wife Jennifer, there is “more than one way to end a marriage,” only one of which impacts that dreaded divorce rate. So if we’re going to play the paternalism card, we should do so with an aim to prevent bad marriages from happening in the first place.

Needless to say, few states adopt this brand of paternalism at the front end. Individuals don’t (when was the last time you stood up and objected at a wedding when the preacher invited you to?) so it should come as no surprise that democratically elected governments don’t, either. Per About.com, no state requires couples to wait more than five days to marry after applying for a marriage license, and only six (Alabama, Kansas, Massachusetts, Nebraska, Texas and Wisconsin) even limit one’s ability to remarry within the first six months following a divorce. By contrast, North Carolina requires a full year of physical separation before either party can even file for divorce, and another month or two after that before a divorce will actually be granted. Despite this, our divorce rate has held steady at 4.5 per 1,000 in 2001 and 4.4 in 2004, well above the national average in both years. More recently, our rate has increased even as the national rate declined. While inter-state comparisons are always tricky, it seems clear that our long waiting period for divorces is certainly not helping matters, and may even make the marriage failure rate worse.

While lengthy waiting periods do little or nothing to prevent divorce, it does plenty to make the process uglier and more expensive than it needs to be. Not only does requiring one spouse to move out create an unnecessary financial burden for both in the short term, it also sets up the spouse who doesn’t move to cry “abandonment,” which should be irrelevant in a no-fault environment but which does wonders to privilege the spouse who drove the other away over the one who had the cojones to leave. The law shouldn’t favor either spouse over the other. Whoever files has to pay the filing fee, and in return, they get to choose the venue (if more than one is available) and most importantly, they get the warm and fuzzy feeling of having filed an official court document stating that they hereby “complain of” the estranged spouse who for years has been complaining of them. That’s the only difference it ought to make.

As you’ve probably noticed, I don’t post here much anymore. These days, most of the links and snarky remarkies that would have have gone to the blog end up on Twitter or Facebook rather than here. However, I do still think there’s a place for the blog, particularly when it comes to lengthy, often link-ridden discussions that don’t play well on Facebook or come anywhere close to the 140-character limit. This post is the first of several such entries.

Re the heading, no, I didn’t turn gay, but yes, I have mostly flipped on the issue of gay marriage. I still believe, as I did before, that the issue ought to be decided by the democratic law-making process, and not by judges straining to give the Equal Protection Clause a meaning none of its proponents or even opponents anticipated, and which almost certainly would have been worded differently if they had. Cf. Phyllis Schafly, who almost singlehandedly killed the Equal Rights Amendment in the 1970s, in part by arguing that a comparably worded clause in that amendment would be construed to cover gay marriage. Most thought her argument a stretch but we now know it was prescient. So while I don’t want judges getting involved in this, I do think that allowing same-sex marriage is a legislative decision that voters or legislatures, depending on the law of the particular state, should seriously consider.

The reason for my change is simple. In my heavy blogging days, when Mrs. Ex was Mrs. X and divorce was unthinkable, I naïvely assumed that our existing family law was brilliantly developed over the millennia to make the laws specific to traditional marriages as absolutely perfect as they possibly could be. Well maybe not quite so absolutely, but in that direction. I did not oppose civil unions as an alternative to same-sex marriage, but did reason that the concept of a permanent same-sex union – something most gays themselves didn’t want as recently as a generation ago – was an experiment that should be conducted separately from traditional marriage for at least a generation, with each legislature considering changes to each law separately. Maybe certain blood tests are needed for straight marriages, but not gay, or vice versa. Maybe some are needed for male-male unions but not female-female ones. Maybe no-fault marriage was a terrible idea for straights that should be rescinded someday, but for reasons having nothing to do with gays (and maybe in fact a reason gays didn’t want marriage at all in the bad old days). Too many variables that needed to be experimented with separately for a generation or so. After that period, if our Legislature’s best ideas for male-male unions, female-female unions and male-female unions all just happened to be exactly the same, we could merge the legal concepts then. In the meantime, let’s not corrupt almost a thousand years of common law genius with a brand new experiment. Baby, bathwater, etc.

My new view, after having recently gone through a divorce, is that family law is FUBAR. If you are one of those fortunate ones whose marriages go swimmingly from the day you say “I do” until one of you is dead, good for you. Family law is technically just as bad for you as anyone else, but that won’t matter since none of those crappy laws will ever be applied in your case. But those of us who they do apply to know firsthand just how bassackwards and, in some cases, downright ugly, the laws can be. North Carolina in particular is a judicial hellhole in this regard. In an ideal world, are the best rules for gay unions the same as the best rules for lesbians, let alone straights? Who knows? But I do know that both should be written on a clean slate, and if adding gays to the mix is the political catalyst we need to get the debate going, so be it. The next few posts are going to explain why I think family law is messed up, and what I think ought to be done about it. As always, comments are welcome.

It’s official: Chicago voters will get the government they deserve. The only thing they didn’t deserve was for two unelected judges to deny them that choice because “resident” means one thing and “reside” means something totally different. Good on the IL Supreme Court for straightening that out.

Patterico asks whether it was proper for a gay judge to rule on the constitutionality of gay marriage. My take is that to the extent you agree with Judge Walker’s substantive ruling that allowing gays to marry in no way diminishes the value of a traditional marriage, while it obviously makes a huge difference to gays, you should oppose his decision to take the case to begin with. On the flip side, to the extent you think his ruling was substantively wrong, and that gay marriages really do undermine the value of straight ones, then it follows that straights and gays are equally conflicted on the issue and therefore, there was no more reason for a gay judge to recuse himself than there would have been for a straight one to have done so. Discuss.

Lindsey Graham seems intent on shedding his nickname “Grahamnesty” and is hinting he may soon introduce a constitutional amendment denying citizenship to children of illegal aliens born as a result of their illegal presence in the U.S.  It seems like a reasonable enough idea, but of course President Obama will veto it.^*  Kudos to Graham and Kyl for going the constitutional route rather than making funny business over the “subject to the jurisdiction thereof” language of the 14th Amendment, which is basically the conservative equivalent of liberals arguing that “well-regulated militia” means “kindly ignore the following clause in its entirety” and “freedom of the press” means “let’s prohibit all corporations that don’t own newspapers from expressing political views at any time when voters are in any danger of acting on those views.”  Not all bad ideas are unconstitutional, and not all good ideas are constitutional.  A ban on anchor babies is a good idea, but it’s unconstitutional.  So let’s amend the Constitution to fix that – or force all of the allegedly blue dogs in Congress to explain to voters why they won’t.

^*Yes, I realize that the President has no power to veto a constitutional amendment.  Since when has that stopped him from doing anything else?

If you are straight, unmarried (or separated) and living in North Carolina, I’ve got some bad news for you: getting laid is illegal. North Carolina General Statute 14-184 provides that:

§ 14‑184. Fornication and adultery.
If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.

If you are gay, however, no problem. Two men or two women are, after all, not “any man and woman,” and are therefore incapable of violating NCGS § 14‑184 even if they wanted to. Granted, they would violate NCGS 14-177, which provides that:

If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

but as long as the “crime against nature” is committed with mankind rather than beast, it’s clearly protected under Lawrence v. Texas. So if you are married and feel like doing anyone other than your spouse, or if you’re an unmarried and feel like doing anyone at all, just remember this. If either you or your partner has got a schlong, the other had better have one, too.

UPDATE: Commenter Robert notes that this law is probably unconstitutional. I say probably because a judge so ruled in 2006, but the ruling was never appealed so its precedential value is debatable. Then again, it does appear to enjoin everyone who could ever enforce the law, so if you have a law no one can enforce, is it really a law? If a tree falls in the forest, etc.

NK asks, I presume rhetorically, if every stupid law is unconstitutional. This brings me to a topic I’ve been meaning to blog about since the McDonald decision: was the reasoning of the Alito plurality really that bad, or even all that different from Justice Thomas’s position? In other words, is a law forbidding law-abiding residents to exercise one of their constitutionally protected liberties really any more consistent with this:

No State shall …. deprive any person of life, liberty, or property, without due process of law[.]

Than it is with this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]

And if so, why? Because it would seem to me that any law that arbitrarily deprives citizens of their freedom, without so much as the pretense that they’ve committed any crime (let alone due process to determine whether or not they have) is every bit as problematic under the Due Process Clause as it is under the Privileges or Immunities Clause – unless you think there’s some reason why freedoms secured by the Constitution are properly described as “privileges or immunities” but not simply as “liberty.”

Tell me why I’m wrong.

Gaston County is considering a 30-day waiting period on marriages performed by magistrates, unless the couple can show they’ve received premarital counseling. That strikes me as a very reasonable idea, particularly if Kinston Free Press’s editorial against it is the best its opponents can do:

The proposal originated from a pro-marriage advocacy group in Gaston County and is based on the premise that counseling will help couples, when faced with marital struggles, work through their differences rather than take them to divorce court. Fewer divorces will mean fewer single-parent families, and two-parent families are generally good for raising children.

Ah, it’s intended as a pro-marriage measure, rather than a deterrent to the same (think waiting periods on guns?). In that case, surely it’s the duty of every good newspaper to oppose the measure vociferously. Oh wait, there’s more:

It’s important to note that while the idea has been floated, no such bill has been introduced in the General Assembly. And the idea that’s floating around would have the program initially operate as a pilot program in Gaston County.

However, pilot programs have a way of spreading like wildfire. Once they catch on in one county, they tend to spread across the state.

Translation: the real problem with this proposal is that it might actually, like, work.

We’re not here to argue against couples getting counseling or lots of advice before getting hitched. But we don’t think it’s wise for the government to make such counseling a stipulation for getting married by a magistrate.

Ah yes, the old “don’t let big government go paternalistic on you” argument against government imposing its own restrictions on a government institution. In a state that requires divorcing couples to wait an entire year before they can get out of a bad marriage, is it that much to ask that they obtain counseling or wait 30 days before rushing into one in the first place?

The waiting period wouldn’t apply to weddings officiated by ministers. The thinking there, legislators say, is that ministers won’t join a couple in matrimony unless he or she has counseled the couple first.

While some ministers do make premarital counseling a practice, not all do.

OK, then. Let’s make the requirement apply to religious and non-religious weddings alike.

Having such a requirement could put kinks in couples’ wedding plans.

Correction: having such a requirement could put kinks in foolish and immature couples’ impulsive wedding plans. It imposes no kinks whatsoever on the plan of any couple wishing to remain engaged for one whole month – or even on those who don’t but are willing to obtain premarital counseling.

Making getting married more complicated could likely lead to more couples going to other states — states with less-restrictive marriage laws — to get married.

Here we find the limits to the domino theory. What gets tried on a pilot basis in one NC county will spread like wildfire to the other 99 counties within the state, but will stop in its tracks as soon as it hits a state line. If there’s one thing worse than slippery slope logic, it’s the “slippery to a point, after which it will magically cease slipping at all” logic employed here. Besides, if the real problem is other states’ laws not being restrictive enough for our tastes, the answer is to change our marriage law so as not to recognize out of state marriages between NC residents that do not comport to our standards. We don’t let residents get divorced in other states or countries, so why should marriage be any different?

Good intentions are behind the idea to impose the waiting period for people getting married by magistrates. But good intentions don’t always make good law.

No, but last time I checked, they didn’t automatically make bad law, either. If the worst thing its opponents can say against this proposal is that it is motivated by good intentions, I think it’s well worth a try.

Me no like gun shows. Gun shows legal. Loophole!