Should married people be NFL-like 'free agents'?

It was not long after our country saw the first same-sex marriages that we saw our first same-sex divorces. Whatever the truth of the argument that same-sex marriage threatens traditional (heterosexual) marriage, the legalization of same-sex marriages, including the recent legalization by the Iowa Supreme Court and the Vermont legislature, certainly do nothing to strengthen marriage.

Because I am a lawyer, when I hear people argue that “we” need to “strengthen marriage,” I consider first how the law might provide such a tool. One type of law that could strengthen marriage has been the subject of state legislation, state court decisions, and law review articles over the past 70 years. Nonetheless, there has never been much public debate. To the extent that there was been public debate over this type of law, the law has been derided and I maintain wrongly so.

Under what is called “the common law,” spouses had two different causes of action available to them to protect their marriages. One was called “criminal conversation” which required an act of adultery but did not require knowledge by the defendant of the marital status of the married party or breakdown of the marriage. The other was called “alienation of affections” which did not require adultery but did require knowledge by the defendant of the marital status and breakdown of the marriage. These causes of action have been derided as “heart balm” torts, that is, they are brought by jilted parties to soothe their broken hearts.

During the past year, opponents of Proposition 8 in California claimed that rights once granted could not be abolished. That is plainly not so since state supreme courts and state legislatures in 40 of our states have abolished the right of spouses to call upon the law to protect their marriages. One example is the Supreme Court of Missouri’s action in the 2003 case of Helsel v. Noellsch, 107 S.W.3d 231.

The courts and the legislatures that have abolished these marital rights have done so on various grounds. As I repeat them, I will refute them, using arguments made by judges and law review authors. At the same time, I will describe some ways in which our legislatures, rather than scuttling these rights, could modernize them by establishing a cause of action labeled “interference with marital relations.”

1) These causes of action originated in previous centuries when a wife was regarded as a property interest of the husband and the husband utilized these causes of action to protect his property. This is true, but there has been no question that, in modern times, a woman has had as much right as a man to utilize these causes of action. Certainly, the legislature can modernize these rights to ensure that both husbands and wives could bring suit.

2) These causes of action are able to be used only against the rich because lawyers will not represent a plaintiff unless the prospective defendant has a deep pocket. This has also been true, but this argument could be used against a host of causes of action. Again, our legislatures could ensure that suits against defendants of modest means would be financially viable. For example, they could ensure that the loser pays the winner’s attorneys’ fees.

3) These causes of action are vindictive because they are brought only after the marriage has been destroyed and cannot be restored. Several responses. First, given the description above of the two types of causes of action, this argument would only be true for “alienation of affections” not “criminal conversation.”

Second, modern legislation providing for “interference with marital relations” could allow for suits prior to the breakdown of the marriage by providing for injunctive relief in the form of protective orders against interlopers -- just as our legislatures have provided for the issuance of protective orders against abusive spouses and stalkers.

Third, it is not generally thought that the vindication of one’s rights in a court of law is being vindictive. Fourth, this argument could be used against a host of causes of action in which money damages are sought. Lawsuits alleging breach of contract are brought after the contract has been breached and most likely cannot be restored. Fifth, this argument fails to consider the deterrent value of the right to sue. For example, the ability to sue for breach of contract is not successful in deterring all breaches of contract. Law is not a cure-all, but an aid.

4) The amount of money damages cannot be ascertained by a jury. What is a marriage worth? The courts and legislatures in the 40 states which have deprived spouses of a right to sue interlopers have set a value on marriage -- at zero. In fact, it would be an easy thing for legislatures to specify damages in various ways. For example, since the interloper is a home-wrecker, damages could be the price of a median existing home in the area. If we can determine a monetary value in the case of the wrongful death of a spouse, we should be able to determine the monetary value of the wrongful death of a marriage.

5) Only weak marriages are susceptible to interlopers and the weak marriages would have failed for some reason anyway. Should the law not be used to help weak marriages? In so many fields of law, our laws come to the aid of the vulnerable. Our society should encourage the strengthening of weak marriages – not deprive the weak marriages of the aid of the law and let predators exploit the situation. Besides, even strong marriages have their weak times and their lifelong weaknesses.

Since the arguments to abolish these rights have been and can be so easily be refuted, there must be a deeper, unstated, reason why 40 of our courts and legislatures have abolished them. There is.

The courts and legislatures that have abolished these rights have assumed that the cases brought by the wronged spouse have all involved sex. They believe that the law should not stand in the way of married persons, grown-ups, finding happiness.

But the courts and legislatures do not think this in a host of other contexts. One such context is sports. The courts and legislatures do not tell the football and basketball leagues that players are grown-ups who must be able to find happiness if it means playing for another team with a better chance of more playing time, better coaches, better facilities, a better chance of winning a national championship (and more money).

The National Football League draft was April 25 and 26. College football players, and others, who have “entered” this draft can be selected by one of the professional football teams. Once a player is drafted, the player and the team negotiate a contract. There is a difference between a player under contract and a “free agent.” A player under contract is not free to leave his team for another. Nor is another team free to take him. Only players who are “free agents” can negotiate with other teams.

The same is true of athletes in other sports. Some readers might recall the 1970’s litigation in which Atlanta Braves owner Ted Turner was embroiled for alleged “tampering” concerning player Gary Matthews.

Another such context is musical entertainment. The courts and legislatures do not tell tour arrangers that entertainers are grown-ups who must be free to find happiness by having the option of quitting their tours. Nor do they tell product manufacturers that celebrities who endorse their products are grown-ups who must be free to find happiness by endorsing competitors’ products.

Indeed, all business in this country is conducted under similar rules. Businesses of every type and size can avail themselves of the cause of action known as “interference with advantageous relations.” A business can bring suit if: (1) there is a business relationship or contemplated contract of economic benefit; (2) the defendant knew of such relationship; (3) the defendant interfered with it through improper motive or means; and (4) the plaintiff's loss of advantage directly resulting from the defendant's conduct.

Moreover, there are areas outside business where the law prohibits alienation. Thus, separation agreements and divorce decrees typically prohibit each parent from alienating the affections of a child for the other parent. Parents can bring actions to prohibit people from interfering with the relations between them and their children. Our criminal laws prohibit people from enticing members of the armed services to desert, even during peacetime (18 U.S.C. § 1381).

So, it looks like the unstated reason for abolishing the right to protect a marriage is that some courts and legislatures do not believe that law should enforce personal (that is, sexual) morality.

Yet, the right of a spouse to protect his or her marriage is not about personal morality simply. Marriage is a public institution. Persons marry publicly; if the marriage is not publicly witnessed and publicly recorded, there is no marriage. Married persons hold themselves out to the public as married. What are the two things the gay community want in marriage? The tangible benefits offered by various levels of government and governmental and public recognition.

Even if it were a question about personal morality, it would not be the morality of the person married to the plaintiff. Rather, these causes of action are directed at the actions of the third party -- the stranger, the interloper, the predator. And the courts and legislatures which may have thought that lawsuits for alienation of affections (unlike “criminal conversation” which required adultery) were all about sex and sexual fulfillment were wrong. “Alienation of affections” has no requirement concerning sex.

In Norton v. Macfarlane, 818 P.2d 8, a 1991 decision that retained alienation of affections as a cause of action, the Supreme Court of Utah cited the fact that fully 22 of the 41 published cases in Iowa involved interlopers who had no sexual interest in destroying the marriages. And it cited a 1986 Idaho case that also did not involve sexual attraction; in that case third parties (notice the plural) had used extreme psychological and religious pressures to alienate a married woman’s affections for her husband.

Would the right of a married person to sue for “interference with marital relations” extend to those who interfered with a marriage to gain commercial advantage? Yes, the legislation could specifically provide that liability extends to prostitutes and their pimps, mistresses and gigolos, pornography websites, and dating websites that do not screen out married persons. The wife of former Governor Eliot Spitzer should be entitled to sue his prostitutes and their pimps to recover at least the $80,000 he reportedly paid them. Like minors, married persons cannot lawfully consent to sex with third parties. We require liquor stores to conduct due diligence as to the age of their customers and we can require prostitutes and porn sites to conduct due diligence as to the marital status of their customer. After all, marriage records are all public records that could be publicly and instantaneously available.

Let me add here the benefit to a spouse’s health and to the public health by allowing a spouse to turn to the law for help in ensuring that third parties contaminated with sexually transmitted diseases do not infect their spouses.

But again, interference with marital relations is not just about sex. A wife should be able to hold persons liable for interfering with marital relations for selling drugs to her husband or for feeding his gambling addiction if this deprives her of his care, comfort, society, consortium – even if the husband “consented” to buying the drugs or the gambling.

When we attend a wedding, we are customarily invited to support the marriage. Let us, let our laws, give married couples space and time to grow. Let us allow them to have their trials and tribulations, their ups and downs, their joys and pains. Let us give them a wide berth so they can learn from their mistakes and can learn how to forgive – without having bystanders swooping in. Let them have time and space to embrace the true, the good, the eternal. If a marriage is to die, no outsider should be the cause.

If we can be required by law to respect the bond between player and team for the love of the game, then we can be required by law to respect the vowed bond between spouses for the love of their human dignity and God.

Married persons constitute two-person teams and all of us should respect the existence of these teams. Married persons are not “free agents.”

James M. Thunder is a Washington D.C-based attorney.