Marriage as a State of Mind: Federalism, Contract and the Expressive Interest in Family Law

Abstract

This article will consider the locus of family law by examining, first, the relationship between cultural division and determination of the appropriate unit, federal, state or local, to govern family law, second, the nature of the divisions over same-sex marriage and how they relate to jurisdictional divisions, third, the ability of municipalities to act independently of the state in recognizing same-sex relationships, and, fourth, the ability of individuals to choose marital regimes to govern their intimate relationships through contract rather than family law.

This article will argue that underlying these issues is the expressive interest in family law and it will explore that interest in the context of state recognition of e-marriages between same-sex couples. The article maintains that apart from full legal recognition of out-of-state marriages lie two other expressive interests. The first is the interest of the municipality in promoting shared values that differ from those of the state. While municipalities cannot overrule state law, they should be able to recognize out-of-state marriages in a variety of ways (such as providing a basis for domestic partnership benefits) that do not provide full recognition as legal marriages within the state.

The second involves individual ability to choose among competing legal regimes. The article will consider the ability of same-sex partners to couple a marriage that their home state refuses to recognize with a contract incorporating the terms of their out-of-state marriages. While such agreements by themselves could not resolve issues of parentage or custody, they could create a contractual regime to govern financial matters and could incorporate compulsory arbitration provisions that allow them to select gay-friendly decision-makers to resolve future disputes.

The article recognizes that states could outlaw all or some of these proposals, but in doing so, states face an increasingly difficult choice between allowing some state sponsored recognition of same-sex relationships or spurring the creation of alternative private regimes that undermine any pretense of shared values.

Keywords: marriage, family law, same-sex marriage, contract law, government recognition, jurisdiction

JEL Classification: J12, K12