By Edward Zelinsky
Judge Clark Waddoups of the US District Court for the District of Utah has declared unconstitutional parts of Utah’s statute outlawing polygamy. Utah’s statute was challenged in Judge Waddoups’ courtroom by the Brown family of the television show Sister Wives. Days later, Judge Robert J. Shelby, also of the US District Court for the District of Utah, declared unconstitutional Utah’s Amendment 3, which restricts Utah’s definition of marriage to a man and a woman.
The decisions of Judges Waddoups and Shelby should provoke debate about the benefits of abolishing civil marriage. Abolishing civil marriage would recognize the cultural and legal reality that civil marriage is no longer the exclusive, perhaps even predominant, framework for forming intimate family relationships. The one-size-fits-all design of civil marriage fails to account for the diversity of practice and views in modern America.
The Browns are a polygamist clan, consisting of Kody Brown and his four wives, Meri Brown, Janelle Brown, Christine Brown, and Robyn Brown. Kody is legally married to Meri. With Janelle, Christine, and Robyn, Kody has spiritual marriages recognized by the Apostolic United Brethren to which the Browns belong. Together, Mr. Brown and the four Mrs. Browns have seventeen children. The Apostolic United Brethren recognizes as religious marriages the kind of noncoercive, plural arrangement entered into by consenting adults such as the Browns.
Judge Waddoups did not invalidate Utah’s statutory prohibition on multiple marriages. He did rule unconstitutional Utah’s statutory prohibition of cohabitation. That prohibition makes it illegal for a married person to live with a person other than his or her one legally-recognized spouse. Utah, the judge found, does not construe or enforce this prohibition in an “operationally neutral” fashion. Rather, the statutory ban on cohabitation, as implemented by Utah, is targeted at families like the Browns, members of “religious polygamist communities.” It violates the First Amendment, Judge Waddoups concluded, for Utah to “criminaliz[e] religious cohabitation but not adulterous cohabitation.”
Moreover, while Utah authorities say they do not intend to prosecute the Browns, Utah has interpreted its anti-polygamy statute as outlawing arrangements like the Brown household since Janelle, Christine and Robyn, to whom Kody is not civilly married, have entered into religious unions with him. Judge Waddoups declared that Utah’s anti-polygamy law must be construed to prevent only multiple civil marriages and as not interfering with purely religious unions like Kody’s relationships with Janelle, Christine, and Robyn.
In Judge Shelby’s courtroom, four same-sex couples challenged Utah’s decision to deny them the ability to marry civilly. Judge Shelby agreed, invalidating on equal protection and due process grounds Utah’s Amendment 3, which had been passed overwhelmingly by the Utah electorate to outlaw same-sex marriage under Utah’s state constitution.
At one level, Utah’s laws and the challenges to them are peculiar products of Utah’s particular history and demographics. However, the decisions of Judges Waddoups and Shelby should not be so easily dismissed. Rather, those decisions highlight the need to deregulate marriage in the 21st century. In a world without civil marriage, the state would not define, regulate or recognize marriage. Instead, marriage — the structured, publicly-proclaimed, communally-supported relationship of mutual commitment — would be defined contractually by the participants in the marriage, typically under the guidance of religious and other culture-shaping institutions.
It is no longer sensible or feasible for the state to define the family through the institution of civil marriage. We should accordingly deregulate it and thereby get the state out of the business of declaring what (and is not) a bona fide family. Deregulating marriage in this manner would recognize the legal and cultural reality of 21st century America. Abolishing civil marriage would also strengthen the institution of marriage by encouraging robust competition in the market for different forms of marriage. Traditional monogamous marriage, promoted by entrepreneurial religious leaders, could emerge from this competition as the big winner.
Consider in this context “covenant marriage,” a proposal to tighten the monogamous marriage commitment by making divorce more difficult. While several states have agreed to extend to couples the option of covenant marriage, most, so far, have not. In a world without civil marriage, a couple could contract to enter into a covenant marriage, if that were their desire. The advocates of covenant marriage, instead of spending their time and energy lobbying legislatures, could more profitably invest their efforts advocating among couples for their form of stricter monogamous marriage.
A world without civil marriage would not be a one without domestic relations law. We need vigorous law and vigorous law enforcement to protect the underaged, the coerced, and the defrauded. When marriages or other living arrangements break up without the parties having contracted for that possibility, the law will need to provide default rules concerning income, property, and off-spring. However, such rules should not utilize the now-archaic notion of civil marriage.
On a variety of levels, the Browns’ family arrangement strikes me as dysfunctional. But, as Utah acknowledges, Mr. Brown and the four Mrs. Browns are adults who have voluntarily entered into that arrangement.
The opinions of Judges Waddoups and Shelby confirm that it is not the job of the state to tell consenting adults how to organize their families. That is a task for consenting adults to undertake themselves with whatever guidance they seek or accept from religious and cultural institutions. Abolishing civil marriage would properly remove from the state the role of defining marriage and the family in 21st century America.
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. His monthly column appears on the OUPblog.
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Image credit: ‘Sister Wives: Season 4’ Promotional Image via TLC. Used for the purposes of illustration.