Toward More Parsimony and Transparency in 'The Essentials of Marriage'

Abstract

Written for a symposium about marriage-related innovation, this article catalogs impediments to freedom of contract related to marriage that American judges and legislatures have put in the law and continue to impose. Although many of these impediments have become quaint, 'defense of marriage' statutes codified in the last fifteen years have made this interference worse. Marriage is a legal status, of course, and Status defeats Contract almost by definition. From a premise that the state ought to use its interference power sparingly, however, the article calls for more parsimony and transparency in the law of marriage: Constraints on freedom related to marriage should be kept to a reasonable minimum; to the extent they persist, these constraints ought to be intelligible.

Keywords: marriage, DOMA, essentials, freedom of contract, transparency, coverture, annulment, services, duty of support, domicile