Divorcing Marriage and the State Post-Obergefell
Chapter in: The Contested Place of Religion in Family Law (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)
35 Pages Posted: 6 Jul 2018 Last revised: 9 Jan 2019
Date Written: July 5, 2018
Robin Fretwell Wilson observes how commentators and legislators expressed deep unease over the public meaning of marriage following Obergefell v. Hodges and latched onto a seductively simple solution to the conflicts erupting around same-sex marriage: “[G]et the government out of the marriage business, altogether.”
Collisions over same-sex marriage erupted almost immediately around the country – from Alabama, Indiana, and North Carolina, to Ohio, Louisiana, Oregon, and beyond. Perhaps most infamous, elected county clerk Kim Davis shut down marriage to everyone in Rowan County, Kentucky, because issuing licenses to same-sex couples “would conflict with God’s definition of marriage” and “would violate [her] conscience.”
Despite the possibility of muting the impact on religious dissenters with well-drawn statutory protections, the dangerous idea of radically transforming the state’s relationship to marriage has taken hold. This chapter examines these emerging attempts to solve clashes over same-sex marriage by divorcing marriage from the state. It critiques specific proposals to limit state-sponsored marriage.
Section I briefly reviews notions for “ending marriage” cropping up in statehouses
and public debate. Section II links these proposals to, ironically, older more left-leaning claims that society should “abolish marriage.” Section III arrays proposals to divorce marriage from the state on a continuum from weaker to stronger claims – from the idea that society should simply redub civil marriages as civil unions to the idea that the state should only enforce parties’ contractual agreements, rather than specifying rights and obligations that attach when a couple marries. A radical transformation of the state’s relationship to marriage, whatever form that may take, risks disturbing the delicate web of norms around marriage – norms of faithfulness, permanence, emotional and financial interdependence, and physical security. This section suggests that these norms are reinforced when religious couples participate in the institution now known as “marriage.”
After probing the general proposition that society should transform the state’s relationship to marriage, this chapter explores concerns raised by specific legislative proposals to back-walk the state’s regulation of marriage. It asks, what happens to the millions of Americans who have relied upon the state’s existing structure if proposals to divorce marriage from the state become law? It explores practical questions – will other states or the federal government recognize the “marriages” of couples who privately contract after the state backs away from marriage? Will couples in this newly privatized status qualify for the social benefits attached to marital status? If the new privatized marriages take the form of a contract, will couples have the foresight, discipline, and, most significantly, roughly equal bargaining power to arrive at fair agreements governing the financial and domestic aspects of their relationship? Can couples contract their way into the cocoon of protections for marriage that give it unique privacy and intimacy, such as the right not to testify against one another or share marital confidences?
Section IV ultimately concludes that society should be loath to unwind the religious and civil dimensions of marriage since the consequences may be so profound.
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