E-Marriage: Breaking the Marriage Monopoly

Abstract:     
This Article advocates updating the law governing marriage formation to recognize the shift in social interactions from real to virtual life. We argue that couples can use internet communications not only to marry when separated by great distance but also to choose which state's laws will authorize their marriage. In particular, same sex couples could marry under the laws of a state that permit such unions, regardless of where they exchange vows.

States inadvertently have created geographic monopolies, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This Article's model builds upon established precedents, such as proxy marriage and choice of law for multi-jurisdictional and internet contracts. Using the power of internet communications, our proposal allows states to compete over marriage's procedures and substance. Depending on a couple's preferences for "e-ritual" and a state's desired level of regulatory control, couples could consume the trappings of a traditional ceremony before their friends and family, without travelling to another jurisdiction, perhaps with an officiant presiding on-line from a remote location. More simply, couples could have a complete marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction.

Some states do not recognize types of marriages that other states authorize, i.e., Massachusetts same sex marriage or Louisiana covenant marriage. Every type of e-marriage will not be enforceable everywhere. We argue, however, that marriage satisfies a unique human need for socially sanctioned commitment, which a simple contract cannot satisfy, a point ignored by those who argue for a purely private, contractual approach to marriage. E-marriage can more efficiently distribute the "status good" of marriage-even if it cannot provide a legally enforceable relationship in every state. Finally, our proposal encourages a legal cosmopolitanism as individuals witness a variety of sanctioned relationships within their own places of worship and communities, defusing protracted political struggles at the state level over substantive marriage rules.

Keywords: E-marriage, same sex marriage, covenant marriage, choice of law, immigration, internet, status good, federalism

Working Paper Series