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.