Whose Fault Is It That You Can’t Get Laid? by KTK

In my own case, surveys report, it’s apparently mine. But that’s not important right now.

Super-winger Chip Pickering (last seen giving anti-evolution prayers at a speaking-in-tongues Pentacostal rally in Borat) was a prominent member of the conspicuously holy, organizationally secretive, Congressional Christian group known as “The Family”. He retired from Congress this year to “spend more time with his [real] family”. He then almost immediately filed for divorce. He has now become the third resident of The Family’s financially shady “C Street House” in the last few weeks revealed to have been dipping his scepter in the wrong font while simultaneously aggressively legislating everyone else’s moral values.

This would be no more than we expected, of course. What’s unexpected is that his ex-wife is now suing his girlfriend for “alienation of affection”: basically, the claim that it constitutes a tort – a legally-actionable harm for which she would have to pay damages – to entice someone else’s spouse to give you all the good, good, right-wing queasy religious anti-sex lovin’ that that spouse has a prior legal claim on by way of marriage. Bangin’ someone’s lawfully-wedded is like bangin’ someone’s car: you have to pay damages. Or such is the legal theory behind this long-recognized, but little-used, tort claim. (Interestingly, it appears she is not suing for “loss of consortium”, suggesting that, until the divorce, she herself was still getting whatever she used to be getting from the burnin’ hunkaman that is Chip Pickering. She’s only suing for luring his tender heart away. How sweet. [Apparently also, Pickering was, to one degree or another, Mackin' it with at least two pretty hot women at the same time. Which hurts me very much, but never mind . . .])

Normally, I would figure that Pickering’s humiliation was only the least that he deserved, for a variety of reasons, and that his wife’s and girlfriend[']s['] travails are what they get for dallying with this tool in the first place. But this lawsuit opens another question that’s worth spending a moment on.

Why do you get to sue the other involved party for bad behavior on the part of your spouse? If your spouse is an idiot and buys an uninhabitable tract of land, sight unseen, off eBay*, do you get to sue the person who sold it to them? If your spouse is a creepy moron and converts to a repressive, misogynist religion and devotes his life to making everyone else miserable, do you get to sue the quack who talked them into it? Third-party individuals have no direct agreement with you not to let your spouse do wrong, and no specific obligation to make your spouse keep his/her agreements with you; they are not responsible for the bad decisions one party to a marriage makes, even if the other party disagrees or can claim a prior agreement with the spouse not to do that. Why then do you get to sue someone who merely participates in voluntary behavior by your spouse that violates that spouse’s agreement with you, if and only if that behavior involves sex?

Allowing suits of this kind harks back to the notion of marriage as a contract – a commitment that was not merely consensual but legally binding on both parties, and entailed obligations and claims between the parties that could be enforced by courts. Historically, this concept was also tied to legal structures that invalidated women’s standing entirely (as famously captured in Blackstone’s Commentaries: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband . . . .”; he also notes that women cannot control their own property, sue or be sued in court in their own names, or leave property to their husbands [he already owns it], that men have a legal right to beat their wives because the wives are like children under their authority, and that pre-nuptial agreements are invalid because the woman, as a party to the agreement, ceases to exist upon marriage). It was the reason for the impossibly stringent divorce laws prior to “no-fault” reforms, and for the longstanding legal doctrine that men may legally rape their wives (because the marriage contract includes an expectation of sexual satisfaction, and an obligation upon women to provide it). This country’s rabid aversion to the sex they’re rabidly addicted to having is also a big part of the issue.

Luckily – or, not luckily, but through the grinding efforts of generations of feminist reformers – we’ve outgrown most of that bullshit. In almost all states, you cannot now force someone to be married to you against their will by contesting a divorce (naturally, the religious wingers brought it back with a vengeance, through “covenant marriage”, which is harder to dissolve than even an old-fashioned marriage; luckily, it’s only a problem for them, and even the wingers avoid covenant marriage like the plague). Marital rape is now illegal in all states, though only after bitterly-contested legal campaigns to make it so. Pre-nup agreements are commonplace and legally enforceable. And mere sex in and of itself is no longer illegal, even for gays.

But there remains this archaic legal principle by which the fact that someone finds greater happiness outside a marriage than in it is, by itself, grounds for a tort suit. The controlling principle is that once you’ve got your hooks in someone, that creates a legal obligation on the part of the entire rest of society to stay away. A wedding ring becomes, not merely figuratively, but in an enforceable legal sense, a “NO TRESPASSING” sign – it is not just bad form to get involved with someone else’s spouse, but can land you in a court of law.

It’s time for spousal property fences to go the way of spousal rape and forced marriage. If you can’t hold your marriage together yourself, it is archaic and intrusive to claim the power of the courts to punish the person your spouse likes better. And it shifts responsibility from the spouse themselves, acting as a responsible independent adult in a voluntary relationship, to outside parties who have an involuntary obligation imposed on them not to enter into voluntary relations with that willing adult.

There is no ground in a mature and free society for the law to impose contractual chastity belts on adult citizens against their will – in or outside the “bonds” of matrimony. When marriage is seen rightly as a willing partnership, and not as a form of sexual servitude dictated to – or withheld from – unwilling parties by the state (acting out its least mature and most overbearing citizens’ whims), then free adult citizens will be able to form relationships based upon voluntary and willing commitments, which they themselves are responsible to define and maintain.

The court should reject this suit as unconstitutional under the 14th Amendment (equal protection), if not the 13th (anti-slavery), as well as the 9th (retained rights) and possibly the 8th (cruel and unusual punishment!). It’s time for the country to take another step away from infantilizing its citizens under medieval concepts of sexual prudery. A good start would be to eliminate all forms of involuntary marriage constraints (other than caring for children), whether imposed by the state upon couples, or by spouses upon each other.

* Not a hypothetical.**

** Never mind “who?”.