What Should Be The State’s Role In Marriage?

by Mario Rizzo 

I suggest that it should be the same as in contract law. In other words, the State should not define the terms of the relationship. It should allow the parties to do that for themselves and then simply enforce it. The current one-size-fits-all civil marriage should be abolished except as a default option for those who do not want to build their own contract.  

In addition, it will probably be the case that individuals will find a number of standard forms of relationship also convenient. The State need do nothing about this. Just as in the case of wills and other common documents, the market would no doubt provide books or software that enable people to use some typical “marriage” contract templates.   

Furthermore, it does not seem appropriate for the State to impose penalties or benefits on individuals on the grounds of their private contractual relations. Churches and other institutions of civil society should be free to approve or disapprove of any of these contractual relationships. They may ratify (or not) relationships in ceremonies as they have for a long time. In their eyes, some people’s civil unions would not constitute a valid “marriage.” Today, the Catholic Church, for example, does not recognize subsequent marriages of divorced Catholics. These Catholics are denied the Sacraments, including Holy Communion.  

However, the State today recognizes such people as validly married. For the sake of clarity, it might be a good idea for the State to cease using the term marriage (with its religious connotations) and to use the term “civil unions” for everyone. Notice I have not said a word about gay marriage, polygamy, etc. In the same way if I were writing at a high level of generalization about contract law I would not say anything about the specific goods transacted.  

No doubt certain kinds of contracts should not be enforced or perhaps even permitted. For example, a civil union with an animal is impossible because the animal cannot give valid consent. A similar conclusion would follow for children, the profoundly retarded, et al. The contract law has dealt with such problems for a very long time.  

Problems of external effects on parties (such as children) whose moral or derivative legal rights are infringed can also be protected without abrogating the freedoms of the contracting parties. All contractual relations are subject to these limitations. Of course, the objections of third parties who are simply offended, however deeply, by particular kinds of relationships should count for nothing, legally speaking.  

Some cultural conservatives may argue that the State has an important function in strengthening the institutions of civil society including the family. I do not think so. For many centuries the State was not involved in restricting the nature of “marriage.” The terms of marriage were the domain of the Church. In addition, the traditional form of marriage is already significantly weakened by the ease of no-fault divorce in most states.  

The most important fact, however, is that we are in the process of rapid cultural and moral evolution. People are engaging in what J.S. Mill called “experiments in living.” Many do not find that traditional structures suit their needs or aspirations. Is it better to give them no alternatives in law with the consequence of driving them into a form whose real meaning is gone and about which they make a mockery? Or to deprive them of the ability to give legal protection to their de facto relationships?  

Institutions serve specific functions at specific times and in specific places. It is not the role of the State to determine and enforce some universal divine plan in our lives. Its role is to stand aside as individuals work out their purposes and fulfill their potential as they see it. Anything more is playing God.

22 thoughts on “What Should Be The State’s Role In Marriage?

  1. Good post, Dr. Rizzo. In case you hadn’t read it, you might be interested in taking a look at Dr. Koppl’s post on this subject from earlier this year (including the comments section, which I understandably found very helpful).

  2. I am aware of Roger Koppl’s post since I am the editor here. I just wanted to add my two cents. After all, the half-life of a post in the blogosphere is about a day. Expect some repetition.

  3. The worst part of this debate has been the implicit belief on both sides that the state’s moral sanction in any way affects the value of marriage.

    Why have marriage or civil union contracts with legal standing at all? I honestly don’t know. Is it just easier than pre-specifying a specific bundle of rights over jointly held property and how I may use my spouse’s property?

  4. I sometimes think that one of the reasons the issue of state recognition of gay marriages has become such a “hot button” issue in recent years has its cause in the modern welfare state.

    As the redistributive policies have expanded (Social Security, state-funded health care and health insurance, etc.) it has become a legal imperative for gay couples to have their relationship sanctioned by the state.

    Otherwise, one’s “partner,” will not be eligible for all these State programs.

    I am not saying that this is “the” reason, but I find it difficult to believe that it is not related to it.

    Richard Ebeling

  5. Ah; my apologies! I just thought the earlier post (and subsequent discussion) was really great and figured it might be worth taking a look at. I certainly didn’t mean to dismiss what you had to say or to suggest that you had negligently overlooked Dr. Koppl’s thoughts!

    The main reason I posted the link was that I argued along similar lines in the comments section of that post as you seemed to do here, and I thought Dr. Koppl did a good job of proving me wrong. Among the more compelling arguments I thought he offered was this:

    Marriage is a contract. We have long recognized secular marriages. *Some people* give it an additional religious overlay. Bully. No problem. They can do it. But the religious meaning given by many has not prevented those who attach no such meaning to the union from getting married. Ordinary people know what marriage means, the law knows what marriage means, and we have no compelling reason to allow some religious conservatives to restrict the word’s meaning in the innovative way you suggest. I’m certainly not willing to do so in order to protect their delicate sensibilities, particularly given the fact that they never objected to secular unions or calling such secular unions marriages. They are not defending marriage. They are expressing their (supposed!) moral objections to homosexuality. Why should we cow to that? Again, to protect their delicate sensibilities? No way! Certainly not given their failure to object to secular unions or the legal recognition of secular unions.

    Marriage is a contract. Why not, you ask, just let folks write up their own contracts and stop calling any particular name in the legal system? Because all contracts, including marriage contracts, are incomplete. We can’t write down all the possible contingencies and say what happens in each of them. That’s why we have jurists. Thus, again, you line of approach to the problem would introduce legal uncertainty needlessly.

    Later on, Dr. Horwitz added some thoughts of his own that I thought really crystalized Dr. Koppl’s points:

    What’s interesting about Roger’s point about the religious conservatives using the word “marriage” for secular unions is that it parallels the argument Stephanie Coontz has made that the real revolution in marriage is not extending it to same-sex couples, but when it became about love and romance rather than economic/political partnership. Once THAT revolution happened, the demand for same-sex couples to be included was evolutionary not revolutionary. Your argument is parallel: once organized religion granted the term “marriage” to legal unions made outside of the church, THAT was the real revolution. The demand for same-sex inclusion is not.

    In taking part in that discussion, I found these arguments compelling. Evidently, you don’t see things quite the same way, and appear to support a position at least somewhat similar to what I was defending then. How would you respond, then, to these criticisms (if they are even criticisms of your position and I have not simply misunderstood your argument)?

    I apologize for the verbosity; thanks so much for your time!

  6. Danny, Mario scrutinizes each and every one of our posts scrupulously, looking for the least shakiness of thought and eradicating it with a steel hammer, before our posts see the light of day.

  7. None of this changes the fact that few if any libertarians were calling for the abolition of civil marriage until it was gays who wanted to get married.

    The sad truth is that many rather unlibertarian people are disingenuously using libertarian arguments as a front to defend their anti-gay bigotry.

  8. Mario,

    I still hold to the position Danny Shahar has graciously laid out. How do you respond to the point about incomplete contracts? You know: If I have a contract with you that somehow makes us partners, does that mean you can tell the doctors when to pull the plug on me? When does a contractual partner have such a right? What if I had previously married a woman in the Catholic Church? Which partner counts in the medical emergency? As heir? In the event of my death, who gets custody of my natural child, whose natural mother has meanwhile died? And so on. It seems to me that the body of accumulated law on these points all (well largely) concerns “marriage.” Thus, we need the law on marriage whether we eschew the word or not. If all that is about right, isn’t it a bit churlish to deny the label to homosexuals?

  9. Danny and Roger, as I understand Mario’s point, he is just recommending dropping the term ‘marriage’ from legal discourse, and assigning to ‘civil unions’ all of the legal implications that ‘marriage’ now has, rather than continuing to use the legal term ‘marriage’ for heterosexual unions while adopting a new term for homosexual unions. If I am right, then the problems you cite do not arise: the new term ‘civil union’, applied uniformly to hetero- or homo-sexual couplings, would carry with it all of the legal implications of the current term ‘marriage’. And if such a shift in terminology can mollify the objections of the (very large) portion of our citizens who hold a more traditional view of marriage, then wouldn’t this shift in terminology be a step forward? Politics is, after all, the art of the possible — why eschew a possible step forward because it does not conform to a utopian step forward that you dream of?

  10. Gene,

    I would not view it as step forward at all. If your intepretation is right, then we are dropping the word “marriage” because some bigots cannot bear the horrible idea of gay marriage. I cannot imagine why we should cow to such bigotry.

    You remind us that politics is the art of the possible. Sure, but in the case at hand, gay marriage is perfectly possible. Indeed, IMHO it is just a matter of time. No less “conservative” a figure (in one sense of that word!) than Dick Cheney has come out for gay marriage, though not as a federal mandate. Mario’s proposal may be a smaller change in some logical sense, but it is less likely to be realized as a matter of current political reality. Thus, that consideration favors gay marriage over Mario’s suggestion. Anyway, college professors and public intellectuals should defend to right of gay marriage even if it is not politically feasible. We must always speak the truth as we see it.

  11. “If your intepretation is right, then we are dropping the word ‘marriage’ because some bigots cannot bear the horrible idea of gay marriage.”

    As Alasdair MacIntyre notes, liberal “tolerance” has no room for tolerating the religious, does it?

  12. What I am recommending is not very complicated.

    In the world of contracts there are those which are finely-tuned in many details to the wishes of the parties. Lawyers are generally needed to work out the details. Then there are contracts with mostly “boilerplate” provisions (that is, standard ones that have proven useful in similar kinds of circumstances over time) with some unique provisions added. Then there are standard “contracts of adhesion” that are all boilerplate.

    We can apply this to the marriage (or “civil union”) contract. If you want what the standard thing, then that is what you sign up for. If you want a little tweaking then you go online or buy a book with sample alternative contracts and get one of those notarized or certified by some office. In you want something very creative and you have some money, you hire a lawyer.

    The incompleteness of contracts affects all contracts. So when there is something unclear in a civil union contract, two things will happen. First, the contract itself may specify a body of law (interpretative schemes, defaults) that will be applied. Second, if that is somehow absent there can be a default law — even provided by the state. But it would be a law of trying to determine contractual meaning, etc. Our contract law deals with this daily.

    It seems fairly straightforward to me as a matter of general policy, although specific cases might get complicated as they do now in both contract law and marriage/divorce law.

  13. Richard,

    It is true that some of the political pressure for same-sex marriage has to do with the welfare state — eg, Social Security survivor benefits. However, then there are spousal benefits from government employment (sort of welfare state, but a bit different). But also there are issues like the taxability of estates that are bequeathed to same-sex partners (while legal spouses are not taxed), hospital visitation rights, freedom from challenges by relatives to wills granting money/property to same sex partners.So even in the absence of the welfare state there are issues.

  14. Mario,

    I think your answer comes to what I said above as quoted by Gene: “then we are dropping the word ‘marriage’ because some bigots cannot bear the horrible idea of gay marriage.” I just don’t see where that’s reasonable. Indeed, wan’t that pretty much the idea of “civil union”? But civil unions are not marriages and do not provide the full rights thereof, so it is not so easy to create a right of marriage without the word “marriage.”

    I also think your answer neglects the difficulty it would pose for some of our fellow citizens. Well educated and affluent citizens can easy consult a lawyer to “contract out” of this and “contract in” to that. But such matters are difficult, even unimaginable, to some of out fellow citizens who, of course, deserve equal rights as surely as the rich and famous. Lawyers can be intimidating. To understand marriage without marriage is too much for some. Not every young couple understands that marriage creates certain vital rights and duties. And so on. Even our most disadvantaged fellow citizens know what “marriage” is. It is unlikely we can really protect the right to marry for our less educated and affluent citizens without preserving the ancient, socially sanctioned word “marriage.”

    Gene: I’m not sure I understand your comment. Are you saying that I am expressing intolerance for religion? Forgive me your meaning was different. How is it intolerant of me to reject the bigotry of some against others who are made to suffer because of an unchosen condition?

  15. My first reaction is that many people go into the standard marriage contract without knowing what they are doing. They can continue to do the same.It is very easy to tie this knot. Of course, then they are surprised at how hard it may be to get out and what the consequences of divorce are.

    For those who are willing to get some advice (it needn’t be expensive; self-help books are cheap) they may be able to find a better way. On the whole, why should this make matters worse? Some people will make mistakes but some people will make their lives much better. Over time, cultural practices will evolve and incorporate a certain social learning.

    (I have no substantial objection to people the standard civil union contract “marriage” just as they call “Avenue of the Americas” in NYC “Sixth Avenue.” However, it would be good to call it “civil union” in technical legal terms to show the continuity with other forms of civil union.)

    I am opposed to paternalism when it comes to adults. It infantalizes us all. J. S. Mill’s idea of “experiments in living” requires that we let people make mistakes. However, I believe that standard marriage is, for many people, the mistake that dare not speak its name.

  16. Just to jump in…

    Dr. Rizzo, you wrote:

    (I have no substantial objection to people the standard civil union contract “marriage” just as they call “Avenue of the Americas” in NYC “Sixth Avenue.” However, it would be good to call it “civil union” in technical legal terms to show the continuity with other forms of civil union.)

    I would ask, though, why we can’t just call it “marriage” in technical legal terms to show the continuity with the longstanding legal institution of secular marriage. As should be clear, I’m not a legal expert by any means and have not myself been party to any marriage or civil union. But if Dr. Koppl is correct in saying that “…civil unions are not marriages and do not provide the full rights thereof…” then it seems like it would actually be technically incorrect to use the term “civil union” in the way you propose without fundamentally redefining what “civil unions” actually are.

    If a) the contractual relationships in question have the same terms as secular marriages, and different terms than civil unions, and if b) secular marriages have been a relatively uncontroversial part of our world for a long time, then I don’t see why homosexuals should be denied the right to enter into a secular marriage contract. Am I still missing something important?

  17. I have no problem with ANYBODY entering a contract that duplicates the characteristics of standard marriage (aka “secular marriage”) or “sacramental marriage.” I don’t care if in common parlance it is called “marriage.” However, the FORM is a civil union, the CONTENT may be standard marriage. My insistence on getting away from the term marriage when it comes to the *law* is to convey the idea that people can break with tradition and vary the terms if they wish. Religions can continue to call the traditional relationship marriage if they want and perform appropriate ceremonies.

  18. Your idea is excellent. I doubt it has much chance of being adopted. In addition to the usual difficulties inherent in making major changes, I see another hurdle. Two groups will oppose such a change to the status quo: 1) women and 2) the divorce bar.

    Your plan will probably allow the option of creating a civil union that does not provide for the common large-scale redistribution of wealth upon divorce. This takes the form of alimony, child support (which every decade or so is pushed higher), etc. Women are the major beneficiaries of this redistribution of wealth. They realize this and will fight any move to change it. I realize that not all men pay alimony and some women pay it, but the general rule is that men pay and women receive.

    The divorce bar will fight any plan to change a set of laws that rewards them handsomely. They are good at lobbying their fellow lawyers who serve in state legislatures.

    It’s sort of a “Bootleggers and Baptists dynamic.” The lawyers and women who profit from the existing system fight any changes to it. The lawyers don’t argue that the change takes money from them. They argue that it would be unfair to women.

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