Jason Kuznicki recently argued that the institution of marriage is in some sense “a defense against the state.” That is, it is an institution which provides for default rules governing risks which, were it not for marriage, would be filled by state-organized institutions. With marriage, decisions about children or life-and-death or property, can be made without much intervention by the authorities, whereas in the absence of marriage, those decisions are made by the state. The same can be said for wills: without a will, an estate is handled through probate, which is much more intrusive in terms of government intervening in private affairs; with a will, these decisions are made on a much more private level. In fact, the same can really be said of all contracts, which exist against a background of default rules which a person should usually be free to escape. See generally Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 Va. L. Rev. 821 (1992).
To this sensible point, Mark Olson responds that “Marriage has been, historically and socially perhaps even ‘humanly’, been regarded as more than a contractual matter. A sacramental, liturgical, and eternal significance has almost universally been attached to this event.” Moreover, “Marriage is not just of interest to individuals, it is a crucial linchpin in retaining civilization.” Therefore it is to be expected that the church and the state would “have an abiding interest in marriage,” and that tensions would arise in a political society that embraces a separation of church and state. “The state enforcement of standards of behavior and putting its intrusive fingers in marriage is not merely an annoyance,” writes Olson. “It is likely a necessary evil.”
I think Olson’s point is absurd and arbitrary.
To begin with, it is not true that marriage has historically been regarded as a sacred matter. Marriage was not even a Christian sacrament for the first thousand years of Christian history. Before them, the ancient Greeks employed various religious ceremonies with regard to marriages (as they did with regard to everything else) but priests did not officiate, and divorce was legal and easy. And the less said about the Roman attitude toward marriage, the better. Although it’s hard to generalize, it appears in fact that marriage has been regarded as a sacred institution about as much and as often as sex has been regarded as a sacred institution. Many people take it very seriously, but many also do not, and it is simply not true that “sacramental, liturgical, and eternal significance” has “almost universally” been ascribed to marriage.
But even if it were true, it would be irrelevant, since at least the Anglo-American common law has always regarded marriage as a contract. Blackstone wrote in the 1760s that “our law considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience…. [T]aking it in this civil light, the law treats it as it does all other contracts.” In American law, where religion and the state are separated (not a common law principle) the alleged sacredness of marriage is even further removed from relevancy.
Of course you could argue that the state has an “abiding interest” in marriage as a contract because marriage contracts are affected with a public interest. This is the argument conservatives tend to make, and just as happened with business contracts after Munn v. Illinois, such a principle would ultimately destroy the private nature of the marriage contract. If the attenuated effects that an agreement between two (or more) people has on third parties in sufficient to entitle those third parties to interfere, then all privacy is ultimately erased, because there is nothing that a person does that has no effect on anyone. The same argument, in fact, was routinely made for restricting religious freedom. After all, people who doubt the existence of God are likely to undermine other people’s faith in God; their failure to attend church, or to raise their children in the faith, is going to have social ramifications. The fact that a person’s religious views are affected with a public interest entitles us to force that person to conform to our religious practices.
Olson, I think, reveals this major flaw in the conservative view when he says that “one of the problems for the gay couples in our community is that, while the individuals find some measure of protection in marriage, the state itself has much less to gain from protecting them.” But of course the state stands to gain that one thing which is the only gain any state has any right to expect: the gain of protecting the right of individuals to pursue happiness. It is where the state is conceived of as having a legitimate “interest”* in anything other than this that we run into problems.
Kuznicki has his own response to Olson here.
*--I hate this word. The word “interest” is used—most commonly among lawyers—to sneak around the words and concepts of rights. The question is not whether the state has an interest in one social institution or another, which no doubt we all do, but whether the state—that is, the individuals who comprise it—have a right to interfere in the private decisions at issue.
Comments policy