Responding to Steve Hays' Argument for Divorce Grounded in "Domestic Violence"

Steve Hays recently published a post (link to post) in which he argued in favor of the notion that domestic violence is a legitimate ground of divorce.  I provided some comments in the comment box of that post, which led to Steve posting two new posts addressing some of my comments (link to Steve's second post)(link to Steve's third post).

Steve's posts raise a lot of issues, no doubt.  But it seems that Steve's major argument for his position is this one:

c) There is also an argument from analogy. A battered slave could be manumitted (Exod 21:26-27). A fortiori, a battered wife can divorce her husband. What’s true in the lesser case of a slave is true in the greater case of a wife, for a wife has greater rights than a slave.

This argument is invalid.  Just because something leads to the release of slavery does not imply that it leads to the release of a marriage.  A Hebrew slave was released from bondage upon reaching a seventh year of service.  But no serious person would suggest that a Hebrew spouse was released from marriage upon reaching a seventh year.  Thus, the fact that something led to the release of a slave does not imply that the something should lead to the release of a spouse.

Likewise, it's worth noting that the provisions that warrant a divorce (adultery/fornication and actual desertion by an unbelieving spouse) are not things that warrant the release of a slave.  Indeed, it is absurd to suppose that if a slave's master commits adultery, the slave is free to leave.  Likewise, in the law Hebrews were not commanded to let unbelieving slaves go free if they wished to go free.  Furthermore, while death of a spouse liberate the other from the marriage, the death of a master does not liberate a slave.

Thus, there is no good reason to suppose that this argument from analogy is valid.  The two things are non-analogous precisely on the point that the analogy aims to press.

There are also further problems with this argument.  First, the use of the "rights" framework is anachronistic.  The Scriptures don't speak of "rights" and specifically in this instance the release of the slave was retributive justice against the master, not a "right" of the slave.

Second, it is not clear that a wife had "greater rights" than every slave in Hebrew law.  In this case, for example, if we call what the slave has a "right," the law does not provide for similar or greater rights for wives.

Steve tried to argue that wives did have greater rights because they had higher social status.  But actually, social status is something of a fluid concept.  For example, in second temple Judaism, the temple apparently included a "court of the women," between the court of the Gentiles and the court of the men.  Thus, at least in the temple, a male Hebrew slave would have higher social status - he could get closer to the symbol of the presence of God than she could.  Of course, I recognize that in other aspects the social status of a wife was higher - in the home, the slaves would be expected to generally obey the wife.

Moreover, higher social status is not convertible into greater "rights."  Whether one characterizes the mechanisms of Hebrew law in terms of "rights," "legal protections," "privileges," or "prerogatives," there was not some kind of general pattern of providing those with higher social status greater rights, protections, privileges, etc.  Indeed, the law called for a general principle of equality despite social status differences:

Leviticus 19:15
Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honor the person of the mighty: but in righteousness shalt thou judge thy neighbour.
Deuteronomy 1:17
Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's: and the cause that is too hard for you, bring it unto me, and I will hear it.

There's another problem with Steve's analogy, which we could call the "two dimensional" problem.  Let's suppose that married women were of higher social rank than male slaves.  That's one dimension.  At the same time, though, marriage is a more binding bond than slavery.  "They twain shall be one flesh" is a bond that is greater than the highest degree of binding in slavery, the ear bored slave who wishes to serve his master perpetually (Exodus 21:6). Husbands have a duty to sacrifice themselves for their wives in a way that no master is called upon to act toward a slave.  That's another dimension.

So, even if wives have greater rights than male slaves, the bonds of marriage are stronger.  So, Steve's argument doesn't establish what he wants it to, for at least that further reason.  It's not really a proper a fortiori argument.

And the problems don't stop there.  It is not mere battery of a slave that gives the slave freedom.  The slave gets freedom in the case of significant permanent physical injury.  Specifically, the slave gets his freedom for the loss of an eye or a tooth.

Exodus 21:26-27
And if a man smite the eye of his servant, or the eye of his maid, that it perish; he shall let him go free for his eye's sake. And if he smite out his manservant's tooth, or his maidservant's tooth; he shall let him go free for his tooth's sake.

But Steve's move in his argument is from permanent physical injury to mere battery.  That's a move from greater injury to lesser injury.  Even if permanent physical injury could justify breaking the marriage bond, Steve would still need to find some justification for something less than permanent physical injury breaking the marriage bond.

There's an even more fundamental framing problem with Steve's argument.  Why focus on a wife?  If a wife has high social status, surely in Hebrew law a husband has even higher social status.  And surely a free husband would have higher social status than a female slave.

But, of course, a "battered husband" isn't nearly sympathetic enough for Steve's argument.  Moreover, if "social status" were a determiner of degree of divorce rights, Steve's argument would imply that men in general should have more divorce rights than women, and that rich men should have more divorce rights than poor men.  But one cannot imagine Steve seriously advocating such an absurd position.  Therefore, Steve's argument should be rejected, to avoid the reduction to absurdity.

Although there are these plethora of problems with Steve's argument, Steve may point out that I've addressed his third argument, argument c, but not his first two arguments, arguments a and b.  So, let's briefly address them.

Steve argues:

a) Domestic violence is a travesty of what marriage represents, in terms of companionship as well as the emblematic significance of marriage (i.e. to illustrate God’s devotion to the redeemed). It’s the antithesis of how marriage is supposed to function (e.g. Eph 5:22-33).

b) Breach of covenant can nullify a covenant if one party fails to honor the terms of the covenant. And this isn’t the case of a spouse who makes a good faith effort, but falls short due to sin. Rather, this is acting in bad faith.

Let's take for granted that "domestic violence is a travesty of what marriage represents," as to the two aspects identified.  Let's even assume that it is the "antithesis of how marriage is supposed to function."  However, even if those statements are true, they fall short of justifying "domestic violence" as a ground of divorce.  These would just be legitimate complaints about sin, or arguments that this sin is severe ("travesty" has that connotation).  So, this is the weakest of Steve's three arguments.  He doesn't even include a step in the argument that leads to a conclusion in the form of "and thus divorce is justified based on domestic violence."

Steve's second argument also has problems.  One problem is the idea that marriage is a covenant.  While it is popular these days to speak of marriage covenants or "covenantal marriage," these are not Biblical descriptions of the marriage between a man and a woman.   Nevertheless, Malachi and Jeremiah both intermix covenantal language with the description of marriage:

Jeremiah 31:32Not according to the covenant that I made with their fathers in the day that I took them by the hand to bring them out of the land of Egypt; which my covenant they brake, although I was an husband unto them, saith the LORD:
Malachi 2:10-16Have we not all one father? hath not one God created us? why do we deal treacherously every man against his brother, by profaning the covenant of our fathers? Judah hath dealt treacherously, and an abomination is committed in Israel and in Jerusalem; for Judah hath profaned the holiness of the Lord which he loved, and hath married the daughter of a strange god. The Lord will cut off the man that doeth this, the master and the scholar, out of the tabernacles of Jacob, and him that offereth an offering unto the Lord of hosts.
And this have ye done again, covering the altar of the Lord with tears, with weeping, and with crying out, insomuch that he regardeth not the offering any more, or receiveth it with good will at your hand.
Yet ye say, Wherefore?
Because the Lord hath been witness between thee and the wife of thy youth, against whom thou hast dealt treacherously: yet is she thy companion, and the wife of thy covenant.
And did not he make one? Yet had he the residue of the spirit.
And wherefore one? That he might seek a godly seed.
Therefore take heed to your spirit, and let none deal treacherously against the wife of his youth. For the Lord, the God of Israel, saith that he hateth putting away: for one covereth violence with his garment, saith the Lord of hosts: therefore take heed to your spirit, that ye deal not treacherously.

My own view is that this is a blending of various aspects of God's relationship with Israel - they were in a covenant with him, and their relationship to him was also illustrated as a marriage (usually with God as the husband, although note that he's the bride in one part of Malachi's argument).  Nevertheless, to avoid being contentious, let us assume that on some level or other a marriage is a covenant.

Steve's argument refers to the "terms of the covenant."  That would be fine if Steve could point us to terms of the covenant that support his position.  The problem is that there aren't any such terms of the covenant for Steve to point to.  Rather, if any, the terms of the covenant are those specified in my previous post, namely that the parties must not engage in adultery/fornication.

Furthermore, a spouse who makes a "good faith effort" but falls into the sin of adultery doesn't get a pass. So, "good faith effort" isn't really the Biblical standard.  Granted that it is more heinous when a person does not make a good faith effort at their marriage than when they do make such an effort, but that effort is not the measure of the marriage bond.

Likewise, there can be all kinds of bad faith.  A husband can, in bad faith, wear his shoes in bed, knowing that his wife hates the fact that it muddies the sheets.  He might even do this because he's a mean person, and not for any even remotely legitimate reason.  But one would be hard pressed to argue that if he does that once, she's free to divorce and remarry - or even that she would be free to divorce and remarry if he often did it.

Of course, one difference between making the house a pig sty and physical abuse is the severity of the absence of love of neighbor that the man is exhibiting.  Indeed, there can be many violations of a husband's duties to his wife or a wife's duties to her husband.  In a sense any violation of any of the duties is "breaking the covenant."

Presumably, though, Steve would argue that divorce is justified only when those violations are sufficiently severe.  The muddy sheets is not severe enough but "domestic violence" is severe enough.  But why does Steve get to decide what is severe enough?  After all, the Bible identifies adultery/fornication as the only example of what's ordinarily severe enough (with desertion by an unbelieving spouse being an exclusion).

Indeed, Jesus' way of describing the grounds of divorce is exclusive, not illustrative.  Jesus doesn't say "unless it be for something like adultery" but rather limits it to sexual sin ("except it be for adultery"). So, while a heinous sin like spousal abuse may in a sense "break covenant" does not mean that it rises to the level where Biblical divorce is the solution.

-TurretinFan