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Column: Contract Approach To (same-sex) Marriage

This story was written by Brendan Mahan, Cornell Daily Sun


As someone who supports broad civil liberties, I find the recent passage of state constitutional amendments banning same-sex marriage deeply disturbing. I find our continued reliance on the government to control marriage somewhat bizarre. I see no reason to think that marriage is an area where the government has particular competence or where individuals particularly lack it. People are perfectly capable of defining the terms of their relationships in other contexts, and the fact that marriage is a relationship of great personal significance suggests it should have less governmental control, not more.

Perhaps, then, we should consider replacing governmental control of marriage with private control of marriage through contract. Under a contract approach, couples that wish to craft the terms of their marriage to their particular needs could freely do so, just as they can craft the terms of their other contractual relationships. For example, couples could define their obligations to each other and their children, the conditions of divorce, the allocation of finances upon divorce, and even responsibilities for chores and errands. They could also place term limits on their marriage or define them as open. If couples wished to add religious or ceremonial terms to the contract, they would be free to do so. For couples that are happy with the status quo and couples that find negotiating over the terms of marriage offensive, the government could provide a default contract.

Existing legal doctrines could protect children and married persons in appropriate cases. The government could set minimum obligations towards children, such as child support, just as the government sets minimum obligations to third parties in other contexts. Children could use the third-party beneficiary doctrine, which allows non-parties to contracts to enforce terms intended to benefit them, to enforce their own rights. Likewise, courts could protect married persons with the contract law doctrine of unconscionability. The doctrine of unconscionability allows courts to strike terms in contracts if the bargaining process was deficient and if the terms are grossly unfair or oppressive. For example, a court would strike a term calling for corporal punishment for adultery. Additionally, the legal concept of mutual rescission (which generally allows parties to end a contract by agreeing to end it) would allow couples to modify the terms of their marriage upon mutual agreement, providing a flexible framework.

Supporters of so-called traditional marriage could find comfort in the contract approach, given that the history of marriage reveals that it was often contractual. For example, in Ancient Greece, couples had to sign a witnessed contract before the wedding ceremony. Under medieval Germanic law, marriage was a business arrangement between the bridegroom and the brides father: The bridegroom made a down payment (a ring for the bride) and completed his payment on delivery (the wedding). Perhaps the most untraditional feature of a modern contract approach is that today bargaining power would usually be balanced.

Modern marriage is already contractual in many respects. The centerpiece of any wedding is the vows a mutual exchange of promises. Prenuptial agreements are enforced in every U.S. jurisdiction. A few states even allow couples to choose the conditions of divorce. For example, in Louisiana, couples can choose between a traditional marriage, which includes a no-fault divorce clause, and a covenant marriage, which allows divorce only under specific conditions such as adultery, abuse, or abandonment. Practically speaking, couples negotiate the terms of their relationship when they are dating, they negotiate their vows when they get married, and they likely renegotiate their vows throughout their marriage. That all these ters are negotiated with deep love, care, and intimacy does not deprive marriage of its contract-like features. The contract approach may not be as extreme as it seems at first.

The contract approach would have several advantages to governmentally controlled marriage. The most obvious advantage is that it would enhance civil liberty by allowing people to define their marriages as they please. One of the most frequently mentioned benefits is that it seems to make same-sex marriage a non-issue. We all agree that persons of the same sex have the right to make contracts with each other. If marriage is a type of contract, it follows that persons of the same sex have the right to get married.

Still, the contract approach alone cannot provide identical rights to same-sex couples. The most apparent problem is that many benefits of marriage, such as social security and tax breaks, are federal entitlements. This means that the federal government would still have to decide what sorts of contractual relationships qualify for these entitlements. The federal Defense of Marriage Act, signed by Bill Clinton in 1996, defines marriage as a union between one man and one woman, and it defines spouse as a person in an opposite-sex marriage. As a result, identical marriage rights for same-sex couples would require explicitly redefining marriage in federal law.

To the extent that affirmative, governmental recognition of same-sex marriage would be a signal that could partially correct prior exclusion from identical rights for same-sex couples, the contract approach is even more inadequate. Governmental recognition of same-sex marriage would do much more than private contracts to signal that homosexuality deserves equal status to heterosexuality in our society. Adopting the contract approach without first having governmental recognition of same-sex marriage would deny gay rights supporters that victory.

But perhaps the biggest fault of the contract approach is that it ignores the primary problem for same-sex couples: religious intolerance. The movement against same-sex marriage is largely an effort to keep certain religious views enacted as law. Promoting marriage as a contract cannot defeat that effort. Instead, we need to take the separation of church and state a bit more seriously.

In short, even though the contract approach to marriage could enhance civil liberties in many respects, it regrettably seems inadequate at providing identical rights to same-sex couples.

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