Alienation of Affections: Using Tort Law to Protect Marriage
I take the institution of marriage very seriously. It pains me to see people treat marriage casually, as something to be jumped in and out of. It pains me even more to see marriages where one partner takes the marriage seriously and the other treats it as a disposable commodity. It hurts me even more to see someone deliberately trying to interfere with a marriage. So wouldn't it be a good thing to make it illegal to interfere with marriage? How about letting a jilted spouse sue whomever interfered with the marriage? What's wrong with that?
Well, Eugene Volokh discussed that very topic over at The Volokh Conspiracy earlier this week.
The statute would literally apply to someone who urges a friend to leave an abusive -- or unfaithful or just unsuitable -- spouse, or (say) a mother who effectively badmouths her son-in-law to her daughter.
And of course let's not forget the obvious problems of proof and risk of perjury. Was there an act of adultery? Should the defendant have known the other person was married? Much of the time this will depend on what was said and done behind closed doors, and who seems more trustworthy and appealing to the jury. And this is even more so today than in the past, given that men and women have innocent friendships more often than decades ago; evidence of dinners together will no longer be particularly probative, and it will be all a swearing match among three people who may have all sorts of financial and emotional motives to lie. That's in fact one reason the alienation of affections tort has mostly been abolished.
As I said, you can love marriage and hate adultery without thinking that more tort liability will make things better.
In between those two examples is a host of other problems. As somewhat of a social conservative, I'm interested in using the law to protect what people hold dear. On the other hand, the law needs to be used wisely. This is a tricky area that requires very well thought out legislation.