63 Pages Posted: 22 Oct 2009 Last revised: 28 Aug 2011
Date Written: March 2, 2010
Debates over marriage have focused on culturally contested marriages, such as those between same-sex couples. These controversies involve evaluations of marriage as a social practice, its oversight by the state, and its constitutional significance. They distract attention from the statutes that prescribe the mechanics for getting married. Such neglect is odd given lawyers’ keen sensitivity to the relationship between procedure and substantive outcomes and unfortunate given the archaic nature of marriage formation law.
States inadvertently have created territorial monopolies for marriage formation law, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This seems anomalous, given states’ routine provision of legal status, such as incorporation, to those out-of-state. Building upon precedents such as proxy marriage and choice of law for multi-jurisdictional contracts and relying on the Internet’s power to reduce transaction costs, we argue that states can and should authorize weddings in any location. Depending on a couple's preferences for “e-ritual” and a state’s desired level of regulatory control, a couple could have a traditional marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction or, perhaps employ an officiant in the authorizing state using teleconferencing or Skype. Our proposal increases the number of providers of the status good of marriage as well as its enabling regulations. Even if e-marriage cannot provide a legally enforceable relationship in every state because some states do not recognize types of marriages that other states authorize, i.e., Massachusetts same-sex marriage or Louisiana covenant marriage, e-marriage allows all couples to enjoy the psychic benefits of celebrating their weddings before family, friends, and community and the status good of marriage. E-marriage may spur jurisdictional competition to create more convenient marriage formation law that also better fulfills the regulatory goals of encouraging prudent decision-making — an important reform given the states’ haphazard, even useless marriage formation regulations. Finally, our proposal creates a federalist compromise to moderate protracted political and judicial struggles over substantive marriage rules. Convenience and efficiency in marriage formation law animates our proposal; we look to federalism as the engine.
Keywords: E-marriage, same sex marriage, covenant marriage, choice of law, immigration, internet, status good, federalism
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