Marriage and the Law

Being Legally Married

Jewish marriage contract, Venice, Italy, 1750. בית הספרים הלאומי - אוסף כתובות, Public domain, via Wikimedia Commons

You can be married without being legally married. At least that’s what I’ve claimed in previous posts titled Marriage and Marriage: Why Bother? You can be another person’s intimate, affectionate, committed, and caring partner for life even though the two of you have not obtained a marriage license or had a wedding or completed a marriage certificate. For although the state can legally sanction your marriage, the state cannot constitute it: only you and your partner, within the social institution of marriage, can do that. What I have called companionate marriage is not merely a legal contract.

Islamic marriage contract, 1874. Metropolitan Museum of Art , Public domain, via Wikimedia Commons

Conversely, however, you can be legally married without being genuinely married. We all know of couples who get legally married and then discover, whether quickly or after many years, that the spark of their love has died or perhaps never glowed to begin with. Although legally married, they are not in fact loving partners for life.

All of this raises questions about the point of being legally married. Wouldn’t it be simpler and more honest to do without the state’s sanction? And if we eliminated the state’s role, wouldn’t this also resolve many debates surrounding same-sex marriage that center on legal sanctions? I can’t pretend to mine these topics in a single blog post. But let me survey the terrain.

Contractualism versus Institutionalism

A previous post distinguished between two modern philosophies of marriage in the West: contractualism, which sees marriage as a contract two individuals voluntarily enter (and can voluntarily leave); and institutionalism, which sees marriage as an institution defined by the social purposes (such as procreation) that it serves. We can call the latter old-style institutionalism. Dissatisfied with both options, I introduced a new institutionalist philosophy. It regards marriage as a social institution, alongside friendship and family, that lets us achieve the future-oriented trust and intimate recognition we need in order to flourish, both as individuals and as members of society.

These philosophical differences affect how we understand the scope and intent of marriage laws. A really consistent contractualist would eliminate marriage laws altogether. As Elizabeth Brake explains, on this approach “marriage officiation would be left to religious or private organizations,” and the state would do no more than enforce “whatever private [marriage] contracts individuals make.” Or, as former Canadian Prime Minister Pierre Trudeau famously said in 1967 (although with different intent) when he called for the decriminalization of private “homosexual acts”: “There’s no place for the state in the bedrooms of the nation.”

Wedding Time. Photo by One zone Studio on Unsplash

An old-style institutionalist, by contrast, would argue that marriage is a time-honored institution serving valuable social purposes such as procreation and sexual fidelity. Therefore, the state needs to endorse, support, and protect it via appropriate legislation and law enforcement. Through marriage licensing, tax incentives, divorce laws, and many other regulations, the state does indeed have a legitimate place in the bedrooms of the nation.

Just Laws

Neither approach seems satisfactory to me. Contractualism can’t do justice to marriage as a social institution that is not simply a voluntary contract. And old-style institutionalism can’t do justice to the plurality of ways in which individuals participate in this institution. Here I use the phrase “do justice” advisedly. Like my former colleague Jonathan Chaplin, I regard the state as the social institution primarily tasked with achieving and maintaining public justice among the individuals, communities, and institutions that make up our society. I say more about that in my book Art in Public (see pp. 69-72 and elsewhere).

Accordingly, we cannot do without legal frameworks for companionate marriage. People who enter such relations thereby embrace marital expectations and obligations toward each other, and these imply certain legal rights and responsibilities. Spouses who do not have a living wage, for example, should not be left destitute when their fully employed marriage partners divorce or die. And the state needs to recognize marriage itself as a legitimate and worthwhile social institution, finding appropriate ways to support it without discriminating against intimate partners who don’t fit the mold of traditional heterosexual marriages.

Gay marriage in a park. Photo by Maico Pereira on Unsplash

The issue whether legal marriage is worth the bother, then, partly concerns the kinds of laws that currently regulate marriage and how we understand their purpose. If they are simply legal protections for individual rights or, alternatively, mere gatekeepers for an outdated form of marriage, then it makes sense that people increasingly question the point of getting legally married. If, however, we understand marriage laws to be—and transform them to become—ways to do justice to what companionate marriage is and to the diversity of ways in which people experience marriage, then, in principle, there should be a point to getting legally married.

Social Transformation

Practically, of course, there already is such a point. Access to health care, insurance, and financing are all affected by current marriage laws, as are rights to adoption, inheritance, and tax benefits. People who are legally forbidden to marry because of their race, gender, or sexual orientation experience real state-enforced injustice. Even when, amazingly, marriage laws change to become more inclusive, as they have in Canada and the United States, I can understand why members of such oppressed classes remain wary about embracing legal marriage, despite the practical benefits this offers. Each of us must make our own decisions.

Photo by Jessica Hearn on Unsplash

But let me offer one hopeful thought to conclude. Institutions and laws do not change overnight. The struggle to change them can take generations. Yet, change they do, and sometimes they change for the better. This depends, however, on the people who inhabit social institutions and who, through their elected representatives, enact better laws. Working for social transformation can’t be the primary motivation for any of us to get legally married. But perhaps it will be a surprising effect.