This action might not be possible to undo. Are you sure you want to continue?
times marriage was both a sacrament and an institution of the church.1 For a millennium or more, the ecclesiastical courts, to the complete exclusion of the civil courts, had jurisdiction over the determination of the existence of marriage and the rights and duties of the spouses.2 Based on Biblical pronouncements,3 marriage was regarded by the church to be indissoluble.4 The Christian institution of marriage focusing on lifetime monogamy, displaced marital forms of the Roman Empire and barbarian lands, as well, that allowed the taking of multiple spouses in some cultures by permitting polygamy and in other cultures by tolerating quick and unrestricted divorce and remarriage.5 The first intrusion of temporal authority into the regulation of marriage may have been during the reign of Henry VIII, when statutes modified the permissible degrees of
Joseph R. Long, A Treatise on the Law of Domestic Relations 4, n. 5 (1905).
“The holiness of the matrimonial estate is left entirely to ecclesiastical law.” 1 Bl. Comm. 433. Accord, II Kent Commentaries on American Law 87. William the Conqueror separated jurisdiction of the English church from that of the secular courts in 1085 and gave the former exclusive jurisdiction over matrimonial issues. Franklin C. Setavo, A History of English Ecclesiastical Law (Part I), 18 B.U.L. Rev. 102, 104-107 (1938). During the High Middle Ages, marriage constituted one of the main objects of papal legislative activity, as well as academic studies at Paris and Bologna. American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations 89 (2002).
3 4 5
Genesis 2:24, Genesis 1:27 ff, Matthew 19:4 ff, 1 Corinthians 6:16, Ephesians 5:31 ff. American Law Institute, n. 2 supra at 90.
American Law Institute, n. 2 supra at 63. Indissolubility was also scripturally mandated. Matthew 19:9, 1 Corinthians 7:10-11, 39.
consanguinity from those found in the 18th chapter of Leviticus.6 While marriages were typically solemnized in church ceremonies, formless marriages, those in which the spouses simply had declared their intention to be married and had begun living together, were legally recognized.7 The Council of Trent in 1563 imposed the requirement for the validation of marriage by solemnization in a ceremony before a priest.8 In Protestant countries formless marriages remained valid.9 It was not until 1753 that England enacted a statute, Lord Hardwicke’s Act, requiring priestly solemnization;10 this law was judicially construed to reject the validity of a marriage before a Presbyterian minister in Scotland.11 Also formless marriages continued to be valid in Scotland.12 The American states unanimously refused to accept Lord Hardwicke’s Act as part of the common law and most of the states initially
25 Henry VIII, ch. 22, § 3, and ch. 38, allowing marriages based on the relationship of uncle/niece and aunt/nephew. “That marriage might be validly contracted by mutual premises alone . . . without the presence of benediction of a priest, was an established principle of civil and canon law antecedent to the Council of Trent.” Hallett v. Collins, 10 How. (U.S.) 181 (1850). Cohabitation under marriage-like conditions was regarded by the medieval church to be a lawful marriage. American Law Institute, n. 2 supra, at 95. Geoffrey May, Marriage Laws and Decisions in the United States 11 (1929). c. 1, Trid. Sess. XXIV, De reformations matrimonii, Canons et Decreta Sacrosanti Oecumenici Concilii Tridenti sub Paulo III, Julio III, et Pio IV (1903). Göran Lind, Common Law Marriage 122, n. 126 (2002); II Frederick Pollock and Frederic W. Maitland, History of the English Law 368 (2d ed. 1898).
10 11 12 9 8 7
26 Geo. II, c. 33. Regina v. Millis, 10 Cl. & Fin. 534 (1844). Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 161 Eng. Rep. 665 (1811). 2
validated the formless marriage, requiring for its existence only that the couple declared their intention to be married and lived together as husband and wife, consistent with Scottish law.13 These non-ceremonial marriages came to be known as common law marriages.14 Even in those jurisdictions maintaining the requirement of ceremonial marriage,15 there was wide acceptance of varying wedding forms and persons authorized to perform weddings.16 Of course, in all jurisdictions, couples have always had the right to choose between church and civil wedding ceremonies.17 Understandably, widespread dissatisfaction arose over the formless common law marriage. Absent any public record, immense evidentiary problems occurred, frequently in the context of multiple claimants fighting over marital shares of deceaseds’ estates.18
Göran Lind, n. 9 supra, at 135, n. 16, 137, 140-149; George Elliott Howard, A History of Matrimonial Institutions II 125-327, III 170-185 (1904). The term itself is traceable to I Kent, Commentaries on American Law 2 (1826). Some American courts regarded common law marriage to have become part of the common law. E.g., Rose v. Clark, 8 Paige (N.Y.) 574 (1841). E.g., Milford v. Worchester, 7 Mass. 48 (1810). It is not clear that the enactments of marriage form requirements were always deemed mandatory. W. J. Brockelbank, La Formation du marriage dans le Droit des Etas-Unis 250 (1935); Göran Lind, n. 9 supra, at 155-157, nn. 105-109. Michael Grossberg, Governing the Heart; Law and the Family in Nineteenth Century America 75-79 (1985). E.g., Ala. Code §§ 8996, 8997 (pastor of any religious society may perform marriage according to the rule or custom of the society; Mennonites, Quakers and other societies may solemnize marriages according to their forms).
17 18 16 15 14
Göran Lind, n. 9 supra, at 957.
Michael Grossberg, n. 16 supra, at 211-212. Motivations to abolish common law marriage in many states included the avoidance of disputes and uncertainty. Göran Lind, n. 9 supra, at 176. See Duncan v. Duncan, 16 Ohio St. 181, 188 (1859). 3
Also early justifications for common law marriages, that of remoteness and unavailability of celebrants, witnesses and registry offices,19 disappeared with increasing population density and community organization, as well as better transportation.20 Consequently, many states began rejecting or repealing authority from common law marriage, a process that began in the Nineteenth Century and extended into the early Twentieth Century.21 Finally, only thirteen states permitted common law marriage.22 While the governing authorities labored to put an end to formless marriages, couples continued to cohabit without matrimonial ceremonies.23 As non-marital
cohabitation became more commonplace, criminal penalties for this conduct fell away, and
Michael Grossberg, n. 16 supra, at 158-159, 956-957; Chambery v. Dickson, 2 5.&R. (Pa.) 475, 476 ff (1816). “[C]overed wagon days are over . . . [;] no person lives, who cannot in some manner easily reach the county court house.” In re Estate of Soeder, 7 Ohio App. 271, 220 N.E.2d 547, 562 (1966). As of 1900, two-thirds of the states recognized common law marriage. Michael Grossberg, n. 16 supra, at 176, 781.
22 23 21 20
Plus the District of Columbia. Michael Grossberg, n. 16 supra, at 781.
Between 1970 and 2004 marriage rates per 1000 persons declined in the United States (11% to 8%), Europe (8% to 5%), and Australia/New Zealand (9% to 5%). Göran Lind, n. 9 supra, at 784. Bishop, an early commentator on domestic law, referred to form requirements for marriage as cumbersome and artificial barriers. Joel Prentiss Bishop, I New Commentaries on Marriage, Divorce and Separation § 457 (1891). Presently marriage is in decline because of high rates of divorce, delayed marriage, cohabitation and unwed parenthood. Judith Stacey, Toward Equal Regard for Marriage and other Implied Intimate Affiliations, 32 Hofstra L. Rev. 331 (2003). 4
by the end of the Twentieth Century, cohabitation was universally de-criminalized.24 Couples’ relationships, when they ended by separation or by death, brought about demands for rights, particularly of property division and inheritance.25 At first these claims were rejected by the courts.26 Eventually, following the leading case of Marvin v. Marvin,27 many, but not all, jurisdictions began adjudicating these claims on their merits by means of doctrines such as partnership, implied contract, and unjust enrichment.28 In Europe, Canada, Australia and New Zealand, similar developments occurred in recent years.29 As noted above, under early English law, all matters relating to marriage were determined by the ecclesiastical courts.30 The church tribunals thus exercised what we would now regard to be governmental authority. As statutes relating to marriage came to be enacted,31 secular courts began to adjudicate certain marital issues. For instance,
Göran Lind, n. 9 supra, at 957.
The state interest in imposing duties of support and property allocation, that is, controlling the dissolution of marriage, also weighed heavily in states’ decisions to recognize formless marriages in the early days of our country. Michael Grossberg, n. 16 supra, at 160-161. These courts reasoned that to allow relief would be to damage the institution of marriage and reintroduce common law marriage. E.g., Hewitt v. Hewitt, 77 Ill.2d 49, 394 N.E.2d 1204 (1979); Marone v. Marone, 50 N.Y.S.2d 481, 407 N.E.2d 438 (1980).
27 28 29 26
18 Cal.3d 660, 557 P.2d 106 (1976). Göran Lind, n. 9 supra, at 800-812.
Beginning in Sweden with case law in the 1970's and legislation enacted in 1987. Göran Lind, n. 9 supra, at 800-820.
See text at n. 2, supra. See text at n. 6, supra. 5
proceedings to set aside marriages based on consanguinity and impotence, were adjudicated by the canonical courts,32 whereas those dependent to prior marriages, unsoundness of mind, and want of sufficient age, were within the jurisdiction of the civil courts.33 The American states never accepted the authority of ecclesiastical courts to determine the lawful existence of marriage and to decide about marital rights, because church jurisdiction over marriage would have plainly violated the separation of church and state.34 The former indissolubility of marriage35 over time was altogether swept away, and at present divorce on demand is available in every American jurisdiction.36 The preceding discussion makes it plain that changing family practices change the law, but the law ultimately is not successful in changing the family. The cultural reality of the family can be transformative or subversive of the law. Law is an ineffective instrument to accomplish change of the family. The law may facilitate change or support it, but the law cannot force change or stop it.37 With this reality in mind, we can consider and
Joseph R. Long, n. 1 supra, at 12, 130-131; Epaphroditus Peck, The Law of Persons and of Domestic Relations 20-22 (2d ed. 1920); Geoffrey May, n. 7 supra, at 8-10. Joseph R. Long, n. 1 supra, at 12, 22-25; Epaphroditus Peck, n. 32 supra, at 134135; Geoffrey May, n. 37 supra, at 8-10. The American society had no state church. Many emigrated here under state confessional oppression. Göran Lind, n. 9 supra, at 152.
35 36 34 33
See text at nn. 3, 4.
No-fault divorce was adopted first in California in 1970. By 1985 it had spread to half the states, and it became universal before the turn of the century. Göran Lind, n. 9 supra, at 882. See L. J. Weitzman, The Divorce Revolution 15, 41-43 (1985). N. E. Dowd, Law, Culture and Family: The Transformative Power of Culture and the Limits of the Law, 78 Chi-Kent L. Rev. 785, 789 (2003). 6
determine what should be the reasonable response of the law to current demands for samesex marriage. But before doing so, we must consider the constitutional limits that apply. The right of a heterosexual couple to marry is a firmly established constitutional right.38 The right of homosexuals to engage in physical sexual activities in private was established, at least in those jurisdictions where heterosexual sodomy is not criminalized, in Lawrence v. Texas,39 a 2003 decision that overruled the 1986 case of Bowers v. Hardwick.40 Understandably, advocates of same-sex marriage anchor their arguments on these two constitutional doctrines.41 Much of the controversy and anger relating to same-sex marriage stems from the traditional deeply religious character of marriage, and the belief that this ancient sacrament of the church is violated when the union of homosexuals is blessed in violation of Biblical commands.42 The struggle for governmental acceptance of same-sex marriage is mirrored, actually exceeded, by disagreements within church denominations about whether the
The right to marry is of “fundamental importance,” one of the “basic civil rights of men.” Zablocki v. Redhail, 434 U.S. 374, 383-384 (1978). “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival . . .” Loving v. Virginia, 388 U.S. 1, 12 (1967).
39 40 41 42
___ U.S. ___ (2003). 478 U.S. 186 (1986).
Leviticus 18:22 and 20:13, Romans 1:26-27, I Corinthians 6:9, I Timothy 1:8-10. 7
churches’ pastorates must consecrate same-sex unions.43 Some denominations, including evangelical Lutherans, Episcopalians, Congregationalists, most Quaker meetings, Unitarian-Universalists, and Reformed Jews have opted to perform marriages of same-sex couples.44 Other denominations have refused, including Catholics, Greek Orthodox, Methodists, Presbyterians, and Missouri and Wisconsin Synod Lutherans.45 These
decisions have been characterized by bitter struggles, resulting in departures of numerous disaffected members, clergy, and even whole congregations.46 If pastors of churches were not expected to carry out the state function by performing marriages, the intensity of conflict within religious denominations would be greatly diminished. Same-sex marriage applicants would no longer be able to claim that the church, by not marrying them, was depriving them of their right to a ceremonial wedding that is recognized by the government and confers a concomitant array of legally recognized benefits.47 When a member of the clergy performs a wedding, he acts as an agent of the state.48 The extrication of the clergy from this role may not only be wise public policy, but also
43 44 45 46 47
William N. Eskridge, Jr., The Case for Same-Sex Marriage 189 (1996).
Joseph R. Long, n. 1 supra, at 75; Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121 (_____). 8
may, as well, be constitutionally mandated under church-state separation principles. A legal connection between church and state amounts to an unconstitutional establishment of religion, according to the familiar Lemon v. Kurtzman49 tests, unless (1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it avoids creating an “excessive entanglement” between government and religion. A violation of any one of these criteria is a violation of the establishment clause. The aspect of marriage celebrated by a member of the clergy that creates the greatest constitutional problem, is the delegation of a state function, the formation of a marital union, to a church. Pastoral celebration of marriages becomes highly suspect constitutionally in light of Larkin v. Grendal’s Den, Inc.50 That decision invalidated a law giving religious entities the power to veto applications for liquor licenses in areas near churches and religious schools. The court reasoned that the statute was susceptible to being used for the promotion of religious rather than secular ends, and the church exercised a governmental power that was subject to no clear secular standard. The court concluded that the law impermissibly “enmeshes churches in the exercise of governmental powers.”51 Yet the granting of official status to church wedding ceremonies is deeply grounded in history, and long history of acceptance of a practice weighs in favor of its constitutionality, as determined in Marsh v. Chambers,52 where the employment of a chaplain by the state legislature was upheld. The court warned
49 50 51 52
403 U.S. 602 (1971). 459 U.S. 116 (1982). 459 U.S. at 127. 463 U.S. 783 (1983). 9
that history could not justify contemporary violations of the establishment clause,53 but sustained the statute because in practice the chaplain’s prayers had never resulted in the establishment of religion or an encroachment on separation of religious beliefs from governmental functions.54 The Supreme Court in McDaniel v. Paty,55 invalidated a state statute prohibiting ministers of the Gospel and priests from serving as delegates to the state’s constitutional convention. Here, of course, we have the reverse: ministers are compelled to act as agents of the state when they perform weddings. Commentators are divided in their opinions as to whether a member of the clergy who performs the marriage ceremony and signs the marriage license is thereby carrying out an unconstitutional establishment of religion.56 The right of heterosexual couples to marry is a fundamental constitutional right.57 Under well established constitutional doctrine, any limitation or reduction of that right, if it is valid, must be based on a compelling governmental interest,58 and must not be
53 54 55 56
463 U.S. at _____. 463 U.S. at _____. 435 U.S. 618 (1978).
Compare Sherryl E. Michaelson, Note, Religion and Morality Legislation: A Reexamination of Establishment Clause Analysis, 59 N.Y.U.L. Rev. 301, 309-311 (1984) (does unconstitutionally establish religion) with Emily Taylor, Note, Across the Bond: The Dismantling of Marriage in Favor of Universal Civil Union Laws, 28 Ohio Northern U.L. Rev. 171, 179 (2001) (does not unconstitutionally establish religion).
See cases cited in n. 38 supra. Harper v. Virginia Board of Elections, 384 U.S. 663, 672 (1966). 10
achievable by any less restrictive means.59 Marriage everywhere has been regulated, at first by the church acting as lawmaker and adjudicator,60 later divided between the church and state in parallel systems of justice,61 and finally by secular institutions exclusively.62 The asserted governmental or societal interests in regulating marriage are (1) to prevent or annul marriage where a condition precludes the mutual voluntary consent to enter into marriage by reason of (a) infancy or age minima,63 (b) fraud or duress,64 (c) joke,65 (d) mistake,66 (e) insanity,67 and one can add (f) impotence (although it does not quite fit this matrix);68 and (2) to prevent or annul marriages contrary to established mores against
59 60 61 62 63
Harper v. Virginia Board of Elections, n. 58 supra, at 672. See text at nn. 1, 2 supra. See text at nn. 6, 30-33. See text at n. 34.
Geoffrey May, n. 37 supra, 8-10; Göran Lind, n. 9 supra, at 191-207; Joseph R. Long, n. 1 supra, at 26-27; Epaphroditus Peck, n. 32 supra, at 126-128. Frank Keezer, The Law of Marriage and Divorce 24 (1971); Joseph R. Long, n.1 supra, at 38-43; Epaphroditus Peck, n. 32 supra, at 143-144.
65 66 67 64
Frank Keezer, n. 64 supra, at 23; Joseph R. Long, n. 1 supra, at 15, 52-53, 76-77. Frank Keezer, n. 64 supra, at 23; Joseph R. Long, n. 1 supra, at 15, 52-53, 76-77.
Geoffrey May, n. 37 supra, at 8-10; Joseph R. Long, n. 1 supra, at 27-32; Epaphroditus Peck, n. 32 supra, at 129-130.
Joseph R. Long, n. 1 supra, at 20-22; Epaphroditus Peck, n. 32 supra, at 131-134. 11
(a) bigamy (and polygamy),69 (b) incest,70 and (c) formerly racial miscegenation,71 and (d) same-sex unions.72 Last, but certainly not least, is the governmental interest in maintaining records of marriages and divorces for the sake of establishing property and support rights upon dissolution of marriage, establishing rights of inheritance and related entitlements on the death of a spouse, and finally genealogical research.73 The above exclusions from the freedom of marriage, with the exception of miscegenation, which has been overthrown,74 and of same-sex marriage, which is the subject of an extremely vigorous contemporary
Joseph R. Long, n. 1 supra, at 22-25; Epaphroditus Peck, n. 32 supra, at 134-135; Göran Lind, n. 9 supra, at 207-213 and nn. 68, 69, 73. Constitutional principles of religious freedom will not prevent conviction for bigamy. Reynolds v. United States, 98 U.S. 145 (1978). “The organization of a community for the spread and practice of polygamy is . . . contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world.” Mormon Church v. United States, 136 U.S. 1, 49 (1890). Epaphroditus Peck, n. 32 supra, at 131-134; Frank Keezer, n. 64 supra, at 19; Joseph R. Long, n. 1 supra, at 18-20. The very first secular regulations of marriage, laws adopted in the reign of Henry VIII, modified the Biblical laws on incest. See text at n. 6, supra. Joseph R. Long, n. 1 supra, at 33-34; Frank Keezer, n. 64 supra, at 18. Of course, these laws were held unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). DeSanto v. Barnsley, 328 Pa.Super. 181, 476 A.2d 952 (1984); Ga. Code Ann. § 19-3-3.1(a); Iowa Code Ann. § 595.2, Kan. Stat. Ann. § 23-101; Okla. Stat. Ann. Tit. 43 § 3; S.C. Code Ann. § 20-1-15; Utah Code Ann. § 30-1-2(5); 23 Pa. Cons. Stat. Ann. § 206. The earliest specific regulation of marriage, that banns be published in advance and the wedding ceremony be public, was enacted by the Fourth Lateran Council in 1215, to guard against the impediments to marriage of infancy, consanguinity, and bigamy. Göran Lind, n. 9 supra, at 93, 119; Pope Innocentius III, Letter to Archbishop of Upsala, April 15, 1216.
73 74 72 71 70
Geoffrey May, n. 31 supra, at 15-27; Göran Lind, n. 9 supra, at 1007-1008. See n. 71, supra. 12
debate,75 are easily sustained by compelling state interests that are not otherwise achievable. There is one remaining exception to unrestrained freedom of marriage. That is the requirement of either a religious or secular ceremony.76 Unlike the other exceptions discussed above, no compelling state interest can be identified to support this legal requirement. There is no necessity of a ceremonialized marriage; marriage can be adequately effectuated merely by official registration.77 The requirement of a ceremony seems to be purely an accident of history, history rooted in church practices and doctrines,78 and in the United States, by history - - in the form of the Council of Trent and Lord Hardwicke’s Act - - neither of which was incorporated into the common law.79 The needlessness of a marriage ceremony as a legal requirement is confirmed by the practices of common law marriage in the 14 jurisdictions where it is recognized,80 which by its very definition comes into being without formal solemnization.81 The principal objection to
75 76 77
Frank Keezer, n. 64 supra, at 9-10.
William J. O’Donnell and David A. Jones, The Law of Marriage and Marital Alternatives 17 (1982); Drinan, The Loving Decision and the Freedom to Marry, 29 Ohio St. L.J. 358, 376-377 (1968). Replacement of marriage by a civil or domestic union is advocated in Emily Taylor, Note, Across the Bond: The Dismantling of Marriage in Favor of Universal Civil Union Laws, 28 Ohio Northern J. L. Rev. 171, 173-174, 191-192 (2001). Gerard v. Bradley, Same-Sex Marriages: Our Final Answer? 14 Notre Dame J. Law, Ethics & Public Policy 729, 731 (2000).
79 80 81 78
See text at nn. 8, 10 supra. N. 22 supra. See text at n. 13 supra. 13
common law marriage, that it creates no official record, would be obviated by a simple requirement that such unions be recorded,82 not that they be solemnized. Couples, heterosexual and homosexual alike, could seek blessings of marriage in their churches. For same-sex couples (and for heterosexual couples, one or both of them who had previously been divorced), the granting or withholding of religious blessing would be entirely up to the particularly religious denomination, as it is now. However, by removing the clergy’s participation as an agent of the state, not only would principles of church-state separation be advanced, but also the cause of religious freedom would be supported by releasing the subtle, and sometimes not so subtle, pressures on the clergy to bless unions that they feel are religiously wrong. In sum, the interests of both branches of the First Amendment religion clause, freedom of worship and church-state separation, would be promoted. Much of the raging debate about the legitimacy of same-sex marriages focuses on whether these marriages must be recognized by the state. If a same-sex couple has merely a domestic union and not a marriage in the eyes of the state, then opposition becomes considerably reduced. Moreover, if all couples in cohabiting relationships, heterosexual and homosexual alike, are effectively registered as domestic unions but with entitlement to all spousal rights, and not as marriages, the grounds for seeking official recognition of same-sex marriage would disappear altogether. No longer could same-sex couples complain of discrimination at the hands of the state, since all couples, heterosexual and homosexual, would be treated alike. Only domestic union registration, not registration of marriage, would be offered by the government. Marriage would be what it anciently was,
See text at n. 18 supra. 14
a status to be granted or denied solely by one’s church acting with complete freedom and without exercising any function of the state. Presently three states offer same-sex couples the right to marriage.83 In three states cases requiring the recognition of same-sex marriage have been reversed by constitutional amendments.84 In one of these states, California, the outcome is not clear, because the state constitutional change is subject to a challenge on federal constitutional grounds.85 All of this trouble could be eliminated if the state no longer were in the business of passing on the validity of marriages. Domestic union legislation, on the other hand, has been adopted in seven jurisdictions,86 reflecting a considerably broader public acceptance for this status, than for same-sex marriage. By count of the General Accounting Office, there are 1,138 legal benefits of one
Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2009); Baker v. State, 744 A.2d 864 (Vt. 1999); Kerrigan v. Department of Public Health, 2008 W.L. 4530885 (Conn. 10/28/08). Same-sex marriage is also legalized in Canada, The Netherlands and Belgium. Many states, on the other hand, have statutes forbidding samesex marriage. Appendix, State Anti Same-Sex Marriage Statutes, 16 Quinnipiac L. Rev. 134 (1996). Hawaii Const., Art. I, § 23 (nullifying Baehr v. Lewin, 875 P.2d 225 (Haw. 1993); Alaska Const. Art. I, § 25 (nullifying Brause v. Bureau of Vital Statistics, WL 88743 (Alaska Super. Ct. 1998); California, Proposition 8 (2008) (nullifying In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
85 86 84
N. 105, infra. 15
kind or another that traditionally depended on the existence of marriage.87 These include support,88 alimony,89 property division,90 claims for loss of consortium,91 the right to inherit upon death intestate,92 the right to force a surviving spouse’s share upon death testate,93 the right to administer the estate of the deceased intestate spouse,94 social security survivors’ benefits,95 government pensions,96 employment benefits,97 numerous tax advantages (for example, a 100% deduction against the taxable estate),98 wrongful death claims,99 Linda J. Lacey and D. Marianne Blair, Symposium: The Legislative Backlash to Advances in Same-Sex Couples, 40 Tulsa L. Rev. 371, 415, n. 290 (2004).
88 89 90 91 87
William J. O’Donnell and David A. Jones, n. 77 supra, at 16. William J. O’Donnell and David A. Jones, n. 77 supra, at 16. William J. O’Donnell and David A. Jones, n. 77 supra, at 16.
William J. O’Donnell and David A. Jones, n. 77 supra, at 16; Milton C. Regan, Jr., Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation, 76 Notre Dame L. Rev. 1435, 1438 (2001); Linda J. Lacey and D. Marianne Blair, n. 87 supra, at 417; Göran Lind, n. 9 supra, at n. 216.
92 93 94 95 96
E.g., N.C.G.S. § 29-14. E.g. N.C.G.S. § 30-31, et seq. E.g., N.C.G.S. § 28A-4-1(b)(1). Linda J. Lacey and D. Marianne Blair, n. 87 supra, at 417.
William J. O’Donnell and David A. Jones, n. 77 supra, at 16; Linda J. Lacey and D. Marianne Blair, n. 87 supra, at 417.
William J. O’Donnell and David A. Jones, n. 77 supra, at 16.
William J. O’Donnell and David A. Jones, n. 77 supra, at 16; 26 U.S.C. § 2503 (unlimited marital deduction for estate and gift taxes); 26 U.S.C. § 6013(a) (joint tax returns); 26 U.S.C. § 152(b)(5) (dependency exemptions); 26 U.S.C. § 1001(c) (no taxable gains on property transfers).
Göran Lind, n. 9 supra, at 216. 16
employment leave on account of spouse’s illness,100 spousal evidentiary privilege,101 right of immediate citizenship,102 right to make funeral and burial arrangements,103 and allowances in the nature of homestead, dower and curtesy.104 These benefits are not available to domestic partners, who are not lawful spouses105 with three important exceptions: (1) where theories such as partnership, implied trust and unjust enrichment are applicable to cohabiting couples;106 (2) where employers, without being legally required to do so, grant benefits to domestic partners;107 and (3) in those several jurisdictions that recognize domestic unions.108
100 101 102 103 104
Family and Medical Leave Act, 29 U.S.C. §§ 2611, 2612(a)(1), (c). Milton C. Regan, Jr., n. 91 supra, at 1460. 8 U.S.C. § 1255(e)(3). E.g., Parker v. Quinn-McGowan Co., 262 N.C. 560, 138 S.E.2d 214, 215 (1964).
28 C.J.S. Dower and Curtesy §§ 2, 136. See also e.g., N.C.G.S. § 30-15 for a benefit in the nature of a surviving spouse’s year’s allowance. Göran Lind, n. 9 supra, at 216 (wrongful death claims); Cory v. Edgett, 111 Cal.App.3d 230, 168 Cal.Rptr. 686 (1980) (inheritance and gift tax deductions); Califano v. Boles, 443 U.S. 282 (1979) (social security survivor’s benefits); Estate of Hall, 707 N.E.2d 201 (Ill. 1998) (surviving spouse’s share of estate). Preferences for married persons are permissible in various contexts. California v. Jobst, 434 U.S. 47, 58 (1977); Michael H. v. Gerald D., 491 U.S. 110 (1989).
106 107 105
See text at nn.27-29 supra.
J.A. Hein, Caring for the Evolving American Family: Cohabiting Partners and Employer Sponsored Health Care, 30 N.M.L. Rev. 19 (2000). Göran Lind, n. 9 supra, at 846-861. See 15 Vt. Stat. Ann. §§ 1201-1207 (1999); Conn. Gen. Stats. § 46b-38pp (2007); N.J. Stat. Ann. §§ 37:1, 37:2 (2007); Cal. Domestic Partners Rights and Responsibilities Act (2003); District of Columbia Partnership Equality Amendment Act of 2006, D.C. Law 16-79; 2003 Me. Laws § 672; Haw. Rev. Stat. §§ 572c-1, 572c-3. Laws also provide for domestic unions in Denmark, Norway, Sweden, 17
Domestic union laws frequently grant couples many of the rights and obligations of spouses.109 Also these statutes typically prescribe the same legal requirements that are applicable to traditional marriage, such as age, monogamy, and consanguinity.110 One of the most pressing claims by same-sex couples is that they be allowed to marry in order to have access to the benefits conferred by the government.111 If all couples, heterosexual and homosexual alike, had access to equal benefits by means of regulated domestic unions, as could easily be accomplished by appropriate legislation, these claims would disappear.112 The question of whether or not to allow same-sex marriage is hugely controversial, laden with religious and other traditional values, and not easily resolvable or likely to be
Iceland, Greenland, Finland, The Netherlands, Spain (Aragon and Catalonia), France, Germany, Switzerland (Geneva and Zurich), Australia, Canada, Croatia, Hungary, Ireland, New Zealand and Portugal. Grace G. Blumberg, Legal Recognition of Same-Sex Conjugal Relationships, 51 U.C.L.A.L. Rev. 1555, 1572-1574 (2004). Göran Lind, n. 9 supra, at 847. For example, California Family Code § 297 specifically allows hospital visitation, insurance beneficiary eligibility, standing to sue for negligent infliction of emotional distress, health insurance coverage for public employees, retirement benefits for some government employees, sick leave, tax treatment, medical decision making and community property. Göran Lind, n. 9 supra, at 847. See the specific prohibitions of bigamy/polygamy or incest, or both, in 15 Vt. Stat. Ann. § 1203 (1999); Conn. Gen. Stats. § 466-38pp (2007); N.J. Stat. Ann. §§ 37:1, 37:2 (2007); Cal. Family Code § 297(b). The existence of these provisions should assuage fears that marriage would be extended to polygamy and group marriage. Linda C. McClain, Intimate Affiliation and Democracy: Beyond Marriage, 32 Hofstra L. Rev. 379, 381 (2003); Mark Strasser, Loving, Boehn and the Right to Marry, 24 Nova. L. Rev. 769, 788-790 (2000).
111 112 110 109
Göran Lind, n. 9 supra, at 1074-1076. 18
resolved in the near future. Proponents of same-sex marriage claim that traditional marriage is an imperfect institution, that is not sufficiently inclusive, failing to represent the full range of forms of intimate affection.113 Opponents of same-sex marriage use arguments that, for the most part, do not withstand careful scrutiny. The complaint that same-sex marriage is morally and
ideologically objectionable is constitutionally problematic, considered in the light of the overruling of Bowers v. Hardwick by Lawrence v. Georgia.114 The claim that marriage
implies reproduction and child rearing is overwhelmed by the reality that many heterosexuals who marry are incapable of reproduction, or do not desire or refuse to have children, and that couples in same-sex unions can raise children and by artificial means of reproduction can procreate.115 The argument that marriage presupposes heterosexuality, states only a conclusion and offers no reasoned analysis. This conclusion is grounded on the assumption that penile-vaginal intercourse is a crucial test of marriage.116 The vice of this assumption is that heterosexuals in marriage are free to, and do, engage in a variety of
Martha A. Fineman, Why Marriage? 9 Va. J. Soc. Policy & L. 239 (2001).
See text at nn. 39-41. It is argued that the prohibition of homosexual marriage causes homosexuals to undertake heterosexual marriage for the sake of conformity, convenience and social advantage, likely causing harm to themselves, their spouses, and their children. William J. O’Donnell and David A. Jones, n. 77 supra, at 47-48.
William J. O’Donnell and David A. Jones, n. 77 supra at 47-48.
Veitch, The Essence of Marriage - A Comment on the Homosexual Challenge, 5 Anglo-Am. L. Rev. 41, 44-45 (1976). 19
sexual practices, and some are incapable of carrying out penile-vaginal intercourse.117 The argument continues that marriage means having families, and members of same-sex unions should not have families; but this proposition, as well, founders on the facts that homosexuals do have children, either from former unions, by artificial means, or by adoption, while heterosexual marriages often do not last and these families often split up.118 Ultimately, justification of union between man and woman, as the only permissible form of marriage, has to be dependent on values of traditional religion and morality.119 While much of the current debate with which this article is concerned, focuses on relationships of same-sex couples, it must be remembered that many cohabiting heterosexual couples opt against marriage for a variety of reasons. Principally, these are being opposed to marriage as an institution on account of its religious roots,120 and lacking
William J. O’Donnell and David A. Jones, n. 77 supra, at 48-49.
William J. O’Donnell and David A. Jones, n. 77 supra, at 48-49. If procreation were essential to marriage, then post-menopausal women, sterile people, and aged couples should not be allowed to marry, nor should those who use contraceptives, women who abort, and those who have no intention of having intercourse. William N. Eskridge, The Case for Same-Sex Marriage 96, 183 (1996). Same-sex couples are allowed to adopt children as a result of court decisions in at least nine states, and by statute in three other states. William C. Duncan, The Social Good of Marriage and Legal Response to Non-marital Cohabitation, 82 Ore. L. Rev. 1001, 1021-1022, nn. 172, 174 (2003). Utah, Mississippi, and Florida specifically prohibit homosexual adoption. Id., at 1022, nn. 175, 176; Fla. Stat. § 63.042(3). See Lynn Wordle, The Bonds of Matrimony and the Bonds of Constitutional Democracy, 32 Hofstra L. Rev. 349, 372 (2004).
that degree of commitment which marriage entails.121 In sum, it must be recognized that while the dominant legal norm is the heterosexual, marital biological family, social and cultural patterns are substantially at odds with this norm.122 Experience has taught, if nothing else, that couples, be they opposite sex or same sex, will make relationship arrangements to suit themselves, regardless of what limits or forms of relationship that the state may seek to impose.123 To limit choices only between state sanctioned marriage, on the one hand, and mere cohabitation, on the other hand, leaves entirely too great a gap, a void to which many relationships would be consigned. Offering an option for formalizing commitment, other than traditional marriage, would have multiple salutary effects: (1) Many couples who did not want to marry, but desired to raise children, or
were already in the process of raising children, might elect such an option. Formal relationships have great advantages over mere cohabitation, with respect to the health and well being of children. The latter is characterized by more fights and violence, lower levels of child support, lowest academic performance, highest school behavior problems, more
Frances K. Goldschneider and Linda J. White, New Families, No Families? The Transformation of the American Home 62-63 (1991); Milton C. Regan, Jr., n. 91 supra, at 1450-1462.
N. E. Dowd, n. 37 supra, at 789.
See text at n. 23, supra. According to the 2000 census, 9.1% of households (5,475,768) are headed by unmarried persons, and 10.9% of these (594,391) are comprised of same-sex couples. T. P. Gallanis, Inheritance Rights for Domestic Partners, 79 Tul. L. Rev. 55, 59 (2004). 21
child abuse, higher levels of depression, and more alcohol and drug abuse, according to several studies.124 (2) The controversy over same-sex marriage has been enormous and shows no
signs of any timely resolution. If some acceptable solution is not found, there is every reason to expect a debate as contentious, divisive, and persistent as the debate over abortion. The general public is opposed to same-sex marriage by wide margins, ___% against and only ___% in favor, according to the polling data.125 With persistent demand for the benefits of marriage supported by the more logical arguments, on the one hand,126 but with high majority public opposition, on the other hand, recognition of same-sex marriage is destined to have an uneven course. There will be over-reliance by its advocates on court decisions, non-majoritarian sources of governance, and there likely will be reversals of judicial and legislative decisions, by constitutional amendments voted on by the people.127 Such developments have already occurred. Court decisions requiring
Lynn D. Wordle, Preference for Marital Couple Adoption - Constitutional and Policy Reflections, 5 Journal of Law & Family Studies 345, 369-375 (2003); William C. Duncan, n. 118 supra, at 1005-1014. In fairness it should be noted that the methodologies of these studies have been criticized. Id., at 1015.
125 126 127
See text at nn. 115-119, supra.
The California decision upholding same-sex marriage, was struck down an initiative adopted by 61% of the voters. Thomas M. Messner, Same-Sex Marriage and the Threat to Religious Liberty, Backgrounder No. 2201, Heritage Foundation, n. 16, (Oct. 30, 2008). In turn the court decision was nullified by a constitutional amendment. See n. 135, infra. 22
recognition of same-sex marriage have been made in Massachusetts and Vermont.128 The United States Congress passed the Defense of Marriage Act in 1996,129 providing that in interpreting federal laws and regulations, marriage means a legal union of one man and one woman as husband and wife. The statute further provides that no state is required to give effect to any public record or adjudication that upholds same-sex marriage.130 More than half of the states, 26 of them, adopted constitutional amendments banning same-sex marriage,131 38 states have enacted laws patterned after the federal Defense of Marriage Act,132 and 18 states have constitutional amendments refusing to recognize same-sex marriages performed elsewhere.133 Hawaii’s, Alaska’s, and California’s judicial decisions requiring recognition of same-sex marriage134 were reversed by constitutional amendments defining marriage as between one man and one woman.135 The right of same-sex persons to marry was determined by court decisions in Massachusetts, Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004), and Vermont, Baker v. State, 744 A.2d 864, 886 (Vt. 1999).
129 130 131 128
1 U.S.C. § 7. 28 U.S.C. § 1738c.
T. P. Gallanis, n. 123 supra, at 71; Haw. Const., Art. I, § 25; Lamda Legal, Status of Same-Sex Relationships Nationwide (2008); Linda J. Lacey and P. Marianne Blair, n. 91 supra, at 392.
T. P. Gallanis, n. 123 supra, at 70, n. 92.
Linda J. Lacey and P. Marianne Blair, n. 91 supra, at 414; T. P. Gallanis, n. 123 supra, at 75. Boehr v. Lewis, 852 P.2d 44 (Haw. 1993); Brause v. Bureau of Vital Statistics, WL 88743 (Alaska Supr. Ct. 1998). Haw. Const., Art. I, § 23; Alaska Const., Art. I, § 25; California, Proposition 8 (2008). 23
A freely accessible registered domestic union is the middle ground that would both ratchet down the anger and disarray created by the drive for same-sex marriage, and also provide an acceptable niche for heterosexual couples who did not want to enter into traditional marriage. A basic format for the universal domestic union is found in Texas legislation providing for registered common law marriage.136 To answer the needs identified in this article, the legislation must be applicable to heterosexual and same-sex couples alike. Some of the existing domestic union laws are deficient in this respect, being reserved only for same-sex couples.137 In order to be a fully acceptable alternative to marriage, domestic union laws, should either (1) extend all marital benefits and obligations to partners in domestic unions, which is not the case now and varies from jurisdiction to jurisdiction,138 or (2) allow the parties to select which rights and obligations they choose to assume, much
Tex. Family Code Ann. § 2.402 (Vernon 2005).
Vermont civil unions are available only to persons of the same sex. Vt. Stat. Ann. § 1204(e)(7). California civil unions are available only for same-sex couples and for opposite-sex couples over the age of 62. Cal. Family Code §297. The right of inheritance often is not offered in domestic union laws. T. P. Gallanis, n. 123 supra, at 79. California’s domestic union law provides many of the same benefits as marriage: hospital visitation, insurance-beneficiary designation, standing to sue for negligent infliction of emotional distress, health insurance coverage for public employees, retirement benefits for some government employees, sick leave, tax treatment, medical decision-making, and community property. Cal. Family Code § 297. Hawaii’s domestic union law provides for a more restricted set of benefits: family leave, hospital visitation, health insurance coverage, and elective share of deceased’s estate. Haw. Rev. Stat. §§ 572C-1, 572C-3. Vermont purports in its domestic union law to provide all the benefits of marriage. 15 Vt. Stat. Ann. §§1201-1207 (1999). 24
like the checklist format that is offered in statutory short form powers of attorney.139 Universally applicable domestic union laws also should contain the same prohibitions against unlawfulness that the state has traditionally enforced with respect to marriage: underage unions, unions the product of fraud or duress, unions the result of joke or mistake, unions of insane persons, bigamous unions, and incestuous unions.140 Further, there should be standard provisions for rights of the parties on dissolution of a union.141 Domestic union laws, of course, would necessarily require, as they now do, public registration, so that there would be no uncertainty as to the existence of a relationship.142 Domestic union laws conforming to the foregoing standards would be less likely, than some current laws on the subject, to be subject to potentially successful attacks as discriminatory on the basis of sex.143 Another salutary feature of the type of domestic union laws proposed here, is that
E.g., N.C.G.S. § 32A-1.
See text at nn. 63-70. Under current domestic union laws only certain prohibitions are articulated. E.g., incest and bigamy in Vermont, 15 Vt. Stat. Ann. § 1203, and in California, Cal. Family Code § 297(b). Most civil union laws contain requirements regarding age and consanguinity. J. A. Hein, n. 107 supra, at 847. See A.L.I., Principles of the Law of Family Dissolution: Analysis and Recommendations, Ch. 4 and 6 (2002) (recommends legislation concerning division of property and making compensatory payments where relationship of domestic partners is dissolved through separation).
142 143 141
See text at nn. 73-75 supra.
A principal reason the Massachusetts court held that the domestic union law was not sufficient to protect the rights of same-sex couples, and that they must be given the right to marry. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2009). 25
there would be far less public opposition than provisions allowing same-sex marriage.144 Finally, and perhaps most importantly, domestic union laws should be the exclusive means for marriage and other committed living arrangements to be recognized by the state. The ceremonial marriage would never be required, but always permitted, offered, not by the government or its functionaries (including members of the clergy acting as agents of the state under the present system), but by churches and whatever other organizations chose to do so.145 The ceremonial wedding would be cut loose from the bonds of government and would be returned to the church; it would be placed back in its state of historical origin.146 The central First Amendment values of church-state separation and religious freedom would be greatly advanced.147 Strident and unseemly public debate about who is qualified to participate in a ceremonial marriage would be ended. It would be up to each religious
In 2004 referenda in 11 states answered no to same-sex marriage, but in three states civil unions were accepted by the voters. Göran Lind, n. 9 supra, at 855. There is no need to have any civil ceremony at all. The state’s interest can be fully served by simple registration. The ceremony can be none, religious, or non-religious, public or private, all at the parties’ choosing. This is highly logical if the state espouses freedom of religion. “Such a system would also be able to defuse the controversial issue of a homosexual couple’s right to marry ceremonially.” Göran Lind, supra n. 9, at 10741077. In Western Europe, including Germany, France, Belgium and The Netherlands, religious marriage ceremonies are optional and have no legal significance; only the simple, brief civil ceremony is of legal consequence. Id., at 1074, n. 5.
146 147 145
See text at n. 1, supra.
See text at nn. 48-56 supra, with respect to church-state separation. Also collisions implicating religious freedom would be greatly curtailed. These have been identified as including (1) state’s conditioning grants of government benefits on recipients renouncing opposition to same-sex marriage, (2) greater exposure of religious individuals and institutions supporting solely heterosexual marriages to liabilities under civil rights laws that protect sexual orientation. Thomas M. Messner, n. 127 supra, at 7, 15; Eugene Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev. 1155, 1179 (2005). 26
denomination or institution to make that decision, with no effect whatever on matters within the realm of government, regardless of what the decision was. - by Daniel W. Koenig and Norman B. Smith
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.