Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, he discusses the recent decision of the California Supreme Court on same-sex marriage and calls for the abolition of civil marriage. Read his past OUPblog posts here.
By a 4-3 vote, California’s highest court has ruled that California’s constitution requires the Golden State to legally recognize the unions of same-sex couples as marriages. Supporters of the court’s decision hail it as a victory for equality. Opponents criticize the ruling as unwarranted judicial activism rejecting traditional morality.
I suggest a third perspective: The California court’s divided decision indicates the desirability of abolishing civil marriage. The state should not define, regulate or characterize relationships among consenting adults. By abolishing civil marriage, the law would deregulate marriage. Such deregulation would strengthen marriage as a social, cultural and religious institution while eliminating the divisiveness inherent in one definition of marriage being imposed politically upon a diverse polity.
We do not yet know the final outcome in California. Opponents of the court’s decision have vowed to place a constitutional amendment on the November ballot, reversing that decision. The California Supreme Court itself was deeply divided, as was the Massachusetts Supreme Court when it required the Bay State to recognize same-sex marriages. New York’s highest court was similarly divided in rejecting the constitutional claims of same-sex marriage proponents in the Empire State. In other states, electorates have opposed same-sex marriage, sometimes by lopsided majorities, sometimes more closely.
In short, Americans have profound, sincere and differing views about the nature of marriage. In the absence of a broad consensus, it is neither feasible nor desirable for the law to enshrine a single definition of marriage.
A world without civil marriage would still be a world with marriage. Indeed, marriage would thrive in a deregulated world. Released from a single, state-imposed definition of marriage, religious, cultural and other groups would promote their respective versions of marriage. Once the law no longer monopolizes the definition of marriage, individuals would contract for their own versions of the institution. Just as a free market in religion has made Americans a religious people, a competitive market for marriage would strengthen marriage by unleashing the entrepreneurial energies of groups promoting their own models of marriage.
Consider in this context “covenant marriage,” a form of marriage under which couples, before solemnizing their marriages, agree to tougher standards for securing a divorce. So far, only three states have been willing to authorize covenant marriage. However, in a world without civil marriage, couples desiring the greater precommitment of covenant marriage would be able to contract for it. In a world without civil marriage, the advocates of covenant marriage, instead of spending their energy and effort lobbying state legislatures, would instead devote those resources to promoting their vision in the competitive marketplace for different forms of marriage.
Or consider two churches, one which favors same-sex marriage, one which does not. In a world without civil marriage, each of these churches would perform the marital ceremonies it favors and would eschew the ceremonies it opposes. In a world without a legal definition of marriage, all of the marriages performed by both of those churches would have the same legal status: none.
Upon the dissolution of familial relationships, the courts would be required to interpret and enforce the contracts defining those relationships. In the absence of such contracts, the courts would be required to make decisions about income, assets and minor children, just as they do today. However, in any litigation, the parties’ characterization of their relationship – marriage, civil union, cohabitation, domestic partnership, or otherwise – would be legally irrelevant.
A world without civil marriage would not be without its own issues, not the least of which would be the question of transition: What to do with the civil marriages (such as mine) which predated the deregulated marital regime? My preference would be a relatively short transition period in most matters to permit couples to adjust to the new world without civil marriage.
The new deregulated marriage regime would require states to revise their laws in a variety of areas, e.g., tax law, probate law, to avoid references to individuals’ marital status. However, the resulting changes would be less extensive and less unsettling than many might suppose.
In the final analysis, a diverse polity must be genuinely tolerant of genuine diversity. In the arena of marriage, Americans today have widely differing views of marriage. In such an environment, it is neither desirable nor feasible for the state to impose a one-size-fits-all definition on the institution of marriage. Both the polity and marriage itself would be better off by abolishing civil marriage.