To this general rush to embrace choice, there is one significant exception. Suppose instead of trying to limit your liability in divorce, you want to give more of yourself in marriage than the standard unilateral divorce contract allows. Say -- just say, mind you -- you want to sign an agreement with your fiance to make a traditional Catholic marriage, where divorce is not allowed and the most a court can do is order separation of bed and board: child support and property division, sure, but no right to remarriage. Or suppose you want an old-fashioned Protestant marriage covenant, where divorce is permissible only for serious cause like adultery or physical cruelty. What do we think of people such as that?
No, no, no, legal elites have heretofore maintained: People should be free to make virtually any kind of family they want, except any kind of traditional marriage. Where once prenuptial agreements that contemplated divorce were viewed as a violation of public policy, the trend nowadays is to strike down any attempt to limit the right to divorce, no matter how devoutly desired, as a violation of public policy. The good of divorce deserves more protection than the right to marry.
What if Kentucky of all places starts a trend? What if more and more traditional religious people -- Jews, Protestants, Catholics, Hindus -- try to draw up more binding marriage contracts? What if people really, really want to say, for better or worse, until death do us part? Will the law let us?
It will be interesting to find out.
Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.