After Roe, conservatives set their sights on ending no-fault divorce laws
Much has been made about the risks to marriage equality and contraception after the Dobbs ruling, but the right also wants to make it harder for women to leave marriages
Following the Supreme Court’s elimination of the federal right to abortion in June, conservatives have taken aim at other fundamental protections, such as same-sex marriage and access to contraception. But some on the right are resurfacing a different, long-simmering project: stigmatizing divorce, including, in some instances, attacking no-fault divorce laws.
No-fault divorce in the U.S. was first adopted in California in 1969, and New York was the last state in the country to pass a no-fault divorce law, which it did in 2010. Although state laws differ, in general no-fault divorce means that one party can successfully dissolve a marriage without needing to first prove wrongdoing by the other partner – including adultery, abuse, or desertion.
Ohio Republican Senate nominee J.D. Vance praised the idea of staying in violent marriages in remarks to high school students in southern California last September. Vance argued “all of us should be honest” about how “making it easier for people to shift spouses like they change their underwear” by leaving marriages that were “maybe even violent” had negative effects on the children, according to Vice, which first reported the comments.
Although Vance’s comments were made before the overturning of Roe v. Wade, they’ve taken on a new salience amid a conservative movement that sees formerly out-of-reach goals as newly attainable. And Vance has lots of company in right-wing media.
Reactionary YouTuber Tim Pool recently discussed no-fault divorce laws on his show, titling the clipped segment: “No-Fault Divorce Has DESTROYED Men's Confidence In Marriage, Men Don't Want To Get Married Anymore.” The discussion focused on how no-fault divorce laws were to blame for what the panel perceived to be a rise in prenuptial agreements, which segued into a meandering discussion lamenting divorce in general.
“The courts are heavily biased in favor of women to an insane degree, especially with children,” Pool said, parroting a cliche often espoused by so-called men’s rights activists, an anti-feminist movement that claims men are structurally disadvantaged in divorce proceedings and family court. (Although it is true that women are generally granted sole custody more frequently than men, the reasons for that are complicated and have to do with men historically having higher incomes and sexist ideas about mothers being natural caregivers.)
Fellow conservative YouTuber Steven Crowder has also argued that no-fault divorce laws are disincentivizing young men to get married. In an unfocused June 24 rant calling for the Supreme Court to now overturn marriage equality rights conferred in Obergefell v. Hodges, Crowder said no-fault divorce laws are “a raw deal for a lot” of 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,” Crowder said. “So it’s not no-fault, it’s the fault of the man.”
“There need to be changes to marital laws, and I’m not even talking about same-sex marriage,” he added. “Talking about divorce laws, talking about alimony laws, talking about child support laws.”
That wasn’t the first time Crowder has made the argument. After referring to “no-fault divorce states” using air quotes in an April 22 segment, he said, “It’s the only contract that I know of where one side is financially incentivized to break it.”
“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,” Crowder added. He later reiterated that “we need to reform divorce laws in this country.”
Some of the loudest anti-LGBTQ conservative voices are also the biggest critics of no-fault divorce, in both cases making an appeal to tradition and what they see as a God-given natural order while defending nakedly patriarchal power relations. Patriarchy depends on a rigid gender binary, with clearly defined roles and expectations; conservatives believe LGBTQ identities subvert this dynamic. Similarly, no-fault divorce laws upended patriarchal power, freeing women from de facto second-class status and dependence on men.
No one encapsulates this tendency more than the virulently anti-trans conservative pundit Matt Walsh. In defending Kanye West’s harassment and threatening behavior in March toward his estranged wife Kim Kardashian, who had recently filed for divorce, Walsh also argued that it should be more arduous to dissolve marriages.
Walsh has made versions of this argument dating back to at least 2015, explicitly in the context of the supposed threat that same-sex marriage posed to heterosexual couples.
Walsh’s Daily Wire colleague Michael Knowles made the same point last year.
“We see the weakening of marriage through no-fault divorce," Knowles said. “This is a very bad turn of events.”
“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?” Knowles asked. “Are we in a period of ascendancy or a period of decline?”
Knowles’ line is increasingly common on the right. Senior writer at National Review Online Dan McLaughlin also sees the liberation movements of the second half of the 20th century as a locus of social disintegration, recently linking gay marriage rights and no-fault divorce as twin aspects of a singular problem.
Some conservatives are even more overt in their playbook. The right’s successful campaign to overturn Roe should serve as a “path by which campaigns for social change must be patterned,” Katy Faust and Stacy Manning write at The Federalist. “That’s especially true for those still willing to fight the battle for marriage.”
Faust and Manning run Them Before Us, which describes itself as “a global movement defending children’s right to their mother and father.”
In their piece, they present a hypothetical back-and-forth that activists can use to field questions, such as:
“If you really think family is so important then you must be against divorce.”
- Correct, no-fault divorce is the original re-definition of marriage and it has devastated the American family.
(The two also oppose same-sex marriage on the grounds that “children of gay couples lose maternal or paternal love and half their heritage.”)
Others on the right downplay this trend.
“As for no-fault divorce, it’s not entirely clear that the policy — while a tragic mistake, from the social-conservative perspective—actually features prominently in the mainstream Right’s priorities. (Which Republican is campaigning on repealing no-fault divorce?)” writes Nate Hochman at National Review. To answer the rhetorical question: the Texas Republican Party, for one, which includes in its 2022 platform 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.”
Justice Clarence Thomas’ concurring opinion in the Supreme Court’s recent Dobbs decision, which overturned Roe, made it clear that aspects of the right are interested in rolling back marriage equality and contraception rights. “We have a duty to ‘correct the error’ established in those precedents," Thomas wrote. It’s not difficult to imagine a movement built on patriarchy targeting divorce laws next.