Somewhat off my normal beat, but here’s a rough draft for an article on civil marriage:
With marriage rights now extended to same-sex couples, a new chorus of voices has been asking why governments should have anything to do with marriage. Some claim that marriage is essentially a religious institution, others, more libertarian, think that governments simply have no business in our personal lives.
But both of these positions seem to misunderstand what marriage is. Both historically and currently, marriage is and has been a contract. Some of the earliest written documents we have are marriage contracts from ancient Sumeria. And understanding marriage as a contract makes it clear why it is the business of government.
There doesn’t need to be any government agency involved in two people deciding to cohabit, to swear their love to each other, or to take religious vows of fidelity. And one version of marriage could be simply these informal arrangements.
But a contract, as such, is among the most central areas of governmental agency. Without a government to enforce them, contracts lose their value. Even libertarian minimalists understand that it is the business of government to make sure that those who violate contracts are punished, and that contracts that ask that people engage in illegal actions be unenforceable.
It’s a problem of contracts that written language is open to many interpretations, and that’s one reason why there are certain standardized contracts. Wills, for example, have a long history of case law that clarifies what can and cannot be enforced in such documents, and establishes how terms are to be understood. Similarly, adoption and incorporation, understood as contractual relations, are given force and shape by the legislative, judiciary and executive functions of government in establishing types of contracts, interpreting their entailments, and enforcing their terms.
A feature of contracts is that they not only affect those who sign on to them, but can clarify how others interact with the contracted individuals. For example, if an agent of an LLC commits a tort against someone outside of the LLC, but while acting specifically in the business of the LLC, the wronged party can sue the LLC. A partnership agreement can include language that allows the partnership to take on debt, such that a debtor would not see recompense from one member of the partnership, but from the partnership and its assets.
It’s in the government’s interests to make sure that only certain people sign on to contracts. A person with limited capacity to understand the meaning of a contract cannot legally sign on. An adoption contract can be entered into only by parties deemed to be capable of fulfilling its terms.
All of the above applies to marriage contracts and is part of what makes them so valuable. Only parties capable of understanding the contract may enter into it. Some parties are deemed, by statute, as too immature for the contract. And, as in many contracts, parties who are not signed on to the contract are guided in their behavior towards contracted parties. For example, it makes sense that if someone is gravely injured, a hospital should not allow just anyone to ender the injured person’s presence, especially without supervision. A marriage contract is a way of selecting someone who may make decisions for, and enter the company of, an unconscious or diminished person. The hospital is enjoined by the contract, though they did not sign it, just as someone who loans money to an LLC is enjoined by certain aspects of the terms of the LLC.
Most contracts contain many elements, provisions, rights and transferences. A strong body of case law is helpful in creating a consistent set of standards for incorporations, partnerships, mortgages, etc. A marriage contract, similarly has many elements. These can include property sharing, protection against being compelled to testify against a marriage partner; the right to reside in the country of citizenship of either marriage party member; the right to share in certain employment benefits, such as healthcare; presumption of parenthood over a child born or adopted into the marriage; priority of conservatorship; military spousal benefits; automatic renewal of leases signed by one spouse even if that spouse is deceased; the right to sue for wrongful death of a spouse; visiting rights towards a jailed spouse; etc.
This contract cannot exist without an executive to enforce it. There are obvious benefits to this contract for those who wish to enter into a particular kind of partnership with another person. None of this precludes informal arrangements, such as living together or purely religious marriages. It merely establishes a well-reviewed set of case law for those willing to make the commitment to legal marriage.
One response among some libertarians has been to call for the complete privatization of marriage, but this misunderstands the nature of a contract. There is no purely private contract, since contract enforcement still depends upon the existence of a judiciary to interpret in the case of dispute and an executive to enforce the contract in case of breach. Further, the existing marriage contract has been widely vetted and accepted, whereas a new contract will still have to be tested. This could create problems if a couple signed a contract and found, upon judicial review, that it was invalid. Finally, the way a contract enjoins third-parties in their relations with the contracted parties, and the fact that the marriage contract can grant rights such as citizenship, make it irreplaceable with any novel contract which would necessarily lack these benefits.
Of course, with the benefits of the contract come responsibilities. A spouse may cause debt that both parties must bear, for example. And this list of contractual elements has been refined over the years: at one time, in some jurisdictions, a woman lost all property rights during a marriage. In California, during the 19th century, a woman could not be found guilty of a non-capital offense if she committed it in the presence of her husband.
Rightly, these elements of the marriage contract have been jettisoned. It seems likely that the contract will continue to evolve. It’s certainly worthwhile to review this contract. As with incorporation, debt, employment and housing contracts, critical review of existing benefits, protections and responsibilities incurred by the contract can be helpful in refining it.
But to say that marriage is not something for government to be involved in is to misunderstood one important element of what marriage is: a legal relationship that is necessarily mediated by existing laws, and which is reinforced by a long history of judicial review. Romantic, religious and spiritual connections may not require this, but marriage is a more complex partnership than that, and the practical needs of many couples will be best served by this contract.