‘Til Death Do Us Part: The End of Government Regulation of Marriage and the Emergence of Domestic Partnership Contracts

Introduction

The debate over same-sex marriage in the United States has brought into question how the government should interact with the institution of marriage, if at all. The North Carolina legislature, in fact, is currently waiting to vote on a constitutional amendment that would ban gay marriage, making it the 31st state to do so (Bonner). Yet, as more and more states address the issue of gay marriage, one must ask: how and why are governments and marriage so strongly intertwined?

In America, marriage and government have coalesced for centuries. However, most legal scholars agree that the relationship between the two has shifted. What began as a government that endorsed a religious institution has now become a government that supports the idea of two individuals in a union, but does not necessarily support the religious aspects of the marriage. At one time, the judicial government upheld religious arguments that prohibited individuals from entering into a marriage, or that dictated the behavior within that union. However, Supreme Court cases have overturned many of those restrictions to marriage.[1] Even though most legal scholars agree that the institution of marriage has changed, they differ in their public policy suggestions. I concur with a handful of legal scholars, such as sociology expert Andrew Cherlin of Johns Hopkins University, who argue for the deinstitutionalization of marriage. With the government moving farther and farther away from the religious aspects of marriage, it no longer makes sense to involve the government with the religious institution of marriage. In this paper, I argue that government entanglement with marriage should come to an end; marriage should be replaced with domestic partnership contracts, which would better reflect current societal values. If a couple wishes to obtain a religious marriage, then that becomes the act of a church or another strictly religious institution, rather than the government. To support this argument, I will first delve into the history of marriage in order to highlight the original purposes of marriage and its social implications. Next, I will examine modern developments and court cases pertaining to marriage that demonstrate how and why marriage has evolved. Finally, I will explain the concept of domestic partnership contracts as well as why these contracts better facilitate the government’s current policy towards marriage.

History of Marriage

In order to fully understand the debates over the role of marriage in today’s American society, it is important to examine the history of the institution as well as its interaction with the U.S. government. Marriage is inherently a religious institution. Charles Kindregan, expert in family law and a professor at Suffolk University Law School, explains that Western society’s notions of marriage derived from Judeo-Christian theology (24). Kindregan asserts that, “Christian churches taught that God [was] the author of marriage,” and in order to be recognized by the Church, and consequently by God, there must be a marital rite with a blessing from a priest (26). According to Kindregan, marriage issues previously fell under the jurisdiction of English ecclesiastical courts, but in 1857 jurisdiction transferred over to American civil courts (27). Accordingly, as Kindregan notes, aspects of substantive marriage law from the English ecclesiastical courts also transferred over to the United States (27). It can thus be concluded that marriage originated as a religious institution and worked its way into the legal framework of the United States.

When the original European settlers voyaged to America, they brought marital traditions with them. A professor specializing in the analysis of family systems, Stephanie Coontz explains that for centuries, marriage was not necessarily a union of love; it was a way to secure one’s social status and ensure a stable financial future (977). As Coontz reveals, marriage revolved around political, social, and economic factors (977). Due to this cultural environment, earlier European and American societies considered it an anathema to marry solely for love or to marry someone of a different race or lower economic status. These societies also deemed procreation to be an important aspect of marriage. Since the husband and wife were the central building blocks of a family unit, as Coontz points out, these societies considered marriage to correlate with childbearing (977). Only a husband and wife were deemed appropriate to raise a successful child (Cherlin 851). Therefore, marriage was the only socially acceptable gateway to childbearing.

Throughout American history, the government transformed these religious and societal traditions into law, creating the field of marriage law. In addition, the 1888 Supreme Court case of Maynard v. Hill declared marriage to be “the foundation of the family and of society, without which there would be neither civilization nor progress” (211). However, I will demonstrate in the next section that more recently American society has called for these laws concerning marriage to diverge from some of their original religious and social impetuses. Many Americans believe that laws still serve as guidelines to communal living, but those guidelines should mirror the social era in a more secular nature, in order to reflect the widely accepted principle of “separation of church and state.” The arguments in favor of governmental oversight of marriage are no longer substantial enough to prevent the deregulation of marriage. In the following section, I will examine how marriage and government have disentangled themselves over the years in order to demonstrate that American laws concerning marriage are no longer logically sound enough to govern modern partnerships.

Evolution of Marriage in U.S. Law

The first and arguably most important case to the current outlook on marriage is the Supreme Court case of Loving v. Virginia (1967). Before 1967, the state of Virginia prohibited Caucasians and African-Americans from marrying. When Richard Loving married Mildred Jeter, of white and black racial backgrounds respectively, the state of Virginia offered to suspend jail time if the couple left the state for a minimum of 25 years (Loving 3). The couple took the issue to court, arguing that the anti-miscegenation law violated the Fourteenth Amendment (Loving 3). The case eventually made its way to the Supreme Court where the Court held that “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State” (12). Chief Justice Warren articulated a policy where individual choice is more important than the American government’s right to regulate someone’s personal decisions. As Howard University Law Professor Laurence Nolan explains, the Loving decision declared that marriage is a choice, and “the choice is that of the individual, not the state” (267). Loving thus provides the foundation for an argument justifying the deinstitutionalization of marriage. Even though Loving did not sever all ties between marriage and government, it marked a point of departure from their traditionally entwined roles.

The next major evolution in marriage revolved around divorce. The recent dramatic increase in divorce suggests that people expect to have the authority to decide whether or not to end their marriage. Elizabeth Scott, a family law professor at Columbia Law School, asserts that contemporary divorce law resulted from the societal belief that the government’s enforcement of “’til death do us part” did not correlate with broader societal views (1952). Strict government regulation of divorce reflected “the notion of a coercive state dictating that marriage be a lifelong commitment, without regard to personal fulfillment [which as a result] violated contemporary norms” (1952). Since Loving had already highlighted a growing desire for individual choice concerning marriage, the increased demand for divorce indicated that many felt the government should not be able to lock an individual into a marriage. Scott suggests that the emergence of no-fault divorce law in the 1970s and 1980s marked yet another stepping-stone towards the deinstitutionalization of marriage (1954). Now individuals could terminate a marriage simply because neither individual was happy in the marriage. This concept of no-fault divorce expressed a departure from the traditional political, societal, and economic purposes for marriage and a strong movement towards valuing personal desires. The American government thus distanced itself from yet another aspect of marriage.

While individuals have fought to gain more control over beginning and ending their marriages, they have also made significant gains in controlling the various decisions that arise during marriage. In the 1946 Supreme Court case of Cleveland Board of Education v. La-Fleur, the Supreme Court overruled a statute requiring pregnant public school teachers in Ohio to take maternity leave without pay (632). If a couple could not afford to be without that income, they might be compelled into not having children. This regulation unconstitutionally infringed upon a married couple’s right to make decisions regarding their married life – such as whether or not to have children (640). The court recognized “that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment” (639). Once again the government distanced itself from the institution of marriage, in this case by removing a statute that strongly influenced the decision to have children, asserting that it was not the government’s responsibility to dictate or strongly influence how people acted within their marriage. This principle was again articulated in the famous 1965 Supreme Court case of Griswold v. Connecticut. In this case, it was illegal for married couples to use any form of contraceptive (479). However, the Court held this regulation to be unconstitutional because it violated the right of marital privacy within the penumbra of the Bill of Rights (479). The right of marital privacy gave married couples increased authority over the actions and decisions within their marriage. Having constitutional protection for individualized marital conduct moved the government even further away from its original ties to marriage.

Another important shift regarding the original aspects of marriage involves the change in procreation norms. While marriage was once the pathway to parenthood, as mentioned above, this is no longer necessarily true. As Cherlin indicates, it is now increasingly socially acceptable to have children out of wedlock and to even be a single parent (852). Cherlin adds that marriage no longer automatically necessitates procreation (849). Many couples that are married use birth control because they do not want to have children. Therefore, the age-old correlation between marriage and parenting is no longer absolute.

While the U.S. government has distanced itself from regulating various aspects of marriage, recent debates regarding same-sex marriage, such as the current amendment before the North Carolina legislature, have caused a backlash in an attempt for the government to regain control. Even though previous government action has set a precedent for non-intervention, some government officials now not only seek to intervene, but aim to invoke religious rhetoric to do so. Gaston County, N.C. Senator Jim Forrester proposed an amendment to the state constitution limiting marriage to a man and a woman “as it has always been stated in the Bible” (qtd. in Barrett). Religiously speaking, the Bible implies that marriage should only be between one man and one woman (ESV, Rom. 1.26-27). However, these exclusive religious arguments no longer seem applicable in modern society. Simply put, the current drive to increase the religious aspects of civil marriage does not logically follow from recent progression of American history. In fact, the government chooses to interact so little with the institution of marriage that it no longer makes sense to continue to link them together. The attempted prevention of same sex marriage is, in this sense, a movement backwards. Rather than trying to reregulate marriage, a more fitting solution to the current state of affairs would be further movement forwards, towards deregulation of marriage. As an alternative to marriage, in the final section I argue that the best policy for the current era involves the implementation of domestic partnership contracts.

The Future of Companionship: Domestic Partnership Contracts

While I support the deinstitutionalization of marriage, it would be too extreme to argue the government should not recognize partnerships at all. As an alternative, the government should shift to a policy of domestic partnership contracts, which recognize partnerships and family units while still providing a buffer zone that puts the authority in the hands of the couple.

The concept of contracts, in lieu of civil marriages, is not a new one. Barbara Stark, Professor of Law at Hofstra University, agrees with the notion of contracts in place of the current system of marriage. She refers to these contracts as “marriage proposals” and suggests that they should be renewable five-year contracts that outline the responsibilities of the marriage and conditions in case of divorce (1526-27). Taking an even broader position, Lenore Weitzman, a former George Mason University Law Professor, argues that such contracts should be available to every cohabitation style: homosexual couples, extended families living together, communes and group marriages (1249). While I certainly agree with the concept of contracts in replacement of civil marriage, I disagree with many scholars such as Stark and Weitzman regarding the content and implementation of such contracts. In order to analyze the utility of domestic partnership contracts, I will first outline how exactly these contracts work, then examine some of the imperfections of this system, and finally discuss the benefits.

First, it is necessary to understand how these domestic partnership contracts would work. When a couple decides to commit to living together, they can apply for a domestic partnership license regardless of sexuality, race, gender, or religion. These licenses would ensure that a couple would have government recognition of their partnership so that (in case of an emergency, for example) one partner would have the legal right to make decisions regarding the welfare of the other partner. In order to obtain the license, the couple must create a domestic partnership contract. This contract would outline what the couple expects from the marriage, the roles each individual will take, any actions that would violate the contract, and the resulting conditions should the marriage be dissolved. The contract would clearly outline how that specific couple defines their legal partnership. If the couple wished to obtain a marriage in their own respective religious customs, then that becomes a matter to address with their religious organization. A marriage in the religious sense would have no correlation to the government. If a couple chose to marry religiously, they would still need to apply for a domestic partnership contract if they wanted government recognition for their union.

Admittedly, the concept of domestic partnership contracts is not perfect. Creating a unique contract for every couple is burdensome. The financial impact would be higher than the current system due to this customization, which may in turn discourage couples from seeking such a contract. Critics might also argue domestic partnership contracts make it easier for people to enter into fraudulent contracts for the purpose of gaining government benefits, such as tax breaks, for example. However, the additional financial burdens, as mentioned, may temper this risk. Additionally, in response to critics who argue this system would allow more people to “marry” and thus decrease the value of “marriage,” I argue it is not the government’s responsibility to determine the worth or value of a couple’s union. Defining the worth of one’s relationship should be the responsibility of the couple.

For domestic partnership contracts, the benefits far outweigh any potential drawbacks. With this system, the government can still exercise its interest in maintaining and enriching the American social structure through recognizing family units, but no longer needs to rely on an incompatible institution founded on religious principles to do so. Furthermore, even though the government would be separating itself from “marriage,” couples who obtain a domestic partnership license would still enjoy the rights and protections the government currently provides with marital licenses. All the current policies set up for married individuals, such as tax benefits, would simply be shifted to domestic partnerships. Couples would gain more independence and still benefit from pre-established benefits for partnerships. At first glance, this approach might not seem like a large shift from government intervention, because contracts in general invoke the involvement of the government. However, domestic partnership contracts would actually limit government interference. Unless there is an aspect of a domestic partnership contract that is illegal, the judicial system would be obligated to uphold the decisions outlined in these contracts. For example, in case of a divorce, the contract would already outline how family resources would be reallocated, removing the responsibility from the judge regarding how to split up these resources. In these ways, domestic partnership contracts would provide more liberty for individuals to make decisions on the various important aspects of their union, which would in turn better reflect the modern emphasis on individualism and on a lack of government intrusion into the private sphere.

Conclusion

The relationship between the U.S. government and the institution of marriage has been a long and complicated one. Originating as a religious institution backed by law, marriage has become a government institution that has shed much of its religious affiliations and instead shifted towards a principle of minimal government intrusion. The recent same-sex marriage debate has caused a backlash from traditional marriage supporters seeking to return to outdated policies of government regulation. However, the historical and societal flow concerning the institutionalization of marriage points in the other direction, towards deinstitutionalization. Americans should continue down this path, but with certain changes outlined in this article that would preserve and expand the rights given to family units. The best method to facilitate such change is the implementation of domestic partnership contracts. These contracts would distance the government from its current religious entanglement in marriage while also accounting for societal changes such as increasing acceptance of same-sex relationships. The institution of marriage, as it was originally intended to be in early America, no longer fits our modern society. It is therefore time for a change, and that change is a shift to domestic partnership contracts.

[1] See Loving v. Virginia (1967), Griswold v. Connecticut (1965), and Cleveland Board of Education v. LaFleur (1974).