May 23, 2008

The State, Marriage, and Contract Law

We’re asked quite predictably by proponents of gay marriage, “Why is the state in the marriage business anyway?” (Well, truth be told, because the state kicked the Church out of the marriage business in the name of secularism in the 18th and 19th Centuries, but here we are.) Even with church-sanctioned marriages, the state has authority and a duty to support civil society, moral life, the disposition of property, the care of children, and the maintenance of social order. The threats a people faces come both from within and without; that’s why states, under laws, have almost always concerned themselves with some bare minimum of rules limiting who can get married, when they can leave the marriage, and what their duties were to one another within marriage, i.e., not to abandon one’s wife, the care of one’s children, etc.

The state (as in NY, FL, etc.) should be in the marriage business because marriage is primarily about taming heterosexual men, whose passions and bad behavior create real problems without a norm (supported by laws) in favor of marriage. Men are biologically disposed to promiscuity. Without direction by chaste women and their stern fathers, this passion can create a glut of uncared for and poorly raised bastard children. States rightfully make marriage attractive through various legal blandishments in order to create a financially and socially viable institution for rearing children. Socially, we honor men who enter it as ?adult? and ?responsible? to counter-balance the inherent trade-offs naturally promiscuous men face:  the legal renunciation of the right to have sex (and children) with others.

Stable marriages create public benefits. Divorce has public consequences. Polygamous or otherwise self-styled marriage duties also have third party consequences, most of them not good. Marriage is an “off the rack” set of rights and responsibilities based on long experience with marriage, including its self-help and child-rearing purposes. The content of those rights, including the ability to leave a marriage and financial results of the same, has significant consequences on third parties with no choice in the matter, such as children and other married couples (whose marriages are threatened by easy divorce).

The state’s recognition of marriage and its promulgation of eligibility rules and duties for married couples is hardly a major encroachment on human liberty. After all, no one is forced to get married. The state’s very limited control over marriage is little different than the law providing “off the rack” terms for a landlord-tenant relationship that is not reduced to a written contract. The difference here is that the terms are not alterable; but this is also familiar in the law. For example, you can’t contract away the statute of frauds, conspire to create a price floor, or contract away your rights in bankruptcy. To say the state’s approach to marriage should be like other contracts obscures the fact that the state through the common law restricts a great number of contracts and contract provisions with effects on third parties under the rubric of them being “against public policy.”

Since the state must enforce contracts (and deal with the consequences of bastard children), it has every interest in channeling and restricting marriage to the extent individual marriages or classes of marriage may affect the public realm.

Gay marriage advocates have taken one of the accouterments of marriage?-romantic love and partnership-?and turned it into marriage’s primary purpose. I am suggesting that societies have instead long recognized, rewarded, and sanctioned marriage for the more prosaic reasons I list above. The fact that we allow old people and the infertile to marry is merely ancillary to this primary social end.

If you redefine marriage and the state?s recognition of it as simply a means to giveaway health and other legal and employeement benefits, then the liberal-libertarian position makes sense. If you think these benefits exist primarily to make marriage a more pro-children-rearing institution, then the gay marriage position breaks down or at least is not quite so obviously persuasive. It should be plain, though, that while family law is unique, the state’s restriction on marriage are well within the mainstream of contract law in other areas.  The state has as much interest in marriage as it does in laws requiring mandatory child support, forbidding child abuse, and limiting other contracts that go “against public policy.” The state rightfully does not allow and will not enforce contracts subjecting innocent third parties to harm as a consequence of contracts that these third parties have no opportunity to sign on to or opt out of.

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