The contractualization of Marriage

( I now more clearly see how the contractualization of marriage has contributed to the growth of no fault divorce and leads to the decay of the American family. Back in 2009 I just began to understand this process.)

The contractualization of marriage

I am currently taking a class on the legal foundations of American capitalism and we have been speaking extensively about the trend in American capitalism to turn everything into contractual obligations and relations. I was reflecting on this topic and it made me think about the dispute over Gay Marriage in a new light.

In the past, I have advocated the notion that the state should get out of the marriage business altogether and merely grant civil unions. In this way, the state could allow religions to create their own marriages unmarred by any civil obligations. Any two people could get a civil marriage, while each faith would determine its own marriage policy. In Europe this has been done with success, as religious marriages are view as ceremonies of choice rather than integrally connected to the state grant of marriage.

My thinking today has made me realize that the opposition to this concept is actually rooted in the way that it turns marriage into merely a contract. Indeed, all too much of the language of the Gay Rights movement today paints marriage in this light as well. Marriage is the state granting a specific package or bundles of rights to a union between two people. In our rights heavy culture this seems like a natural way to conceive of such a union.

Yet, my realization is that this can seem like an overly mechanistic way of looking at a marriage. Indeed, religious notions of marriage do not tend to think of marriage in terms of ‘rights’ but instead think about it in terms of sacred responsibility. For instance, LDS families are often encouraged to sacrifice their self-interest and to work to produce and provide for children. Thus, Marriage is less about being given bundles of things from the state and more about having the state recognize and facilitate a series of relations and mutual obligations.

Part of the deep-seated opposition to Gay Marriage thus seems to me perhaps to stem from this more general discomfort with the turning of marriage from something of a duty to something of a privilege. Of course, the reality of marriage is always far away from the mythic ideal. We allow couples that are infertile, elderly or that will be a tax burden on society to marry freely. Moreover, we seem to have a culture of marriage for convenience, where emotions rather than commitment dominate. As I’ve said elsewhere, banning Gay Marriage will unfortunately do little to change these realities. Gay Marriage is in this sense a lagging indicator of trends in society that many religious individuals are uncomfortable with.

Yet, what I have also learned as I’ve looked at the history of marriage is that what marriage is has never been static. There is no mythic time of perfect marital bliss. Instead, societies have the ability to define the institution in a secular sense just as religious have the obligation to define it in a religious sense ( its clear the LDS notion of what a proper marriage is have changed over time) The question needs to be not one of tradition but one of an ideal condition whereby marriage is made sacred and preserved. One of the strengths of federalism in the United States is that it allows laboratory for democracy in order to allow us to truly see the impacts of different marriage arrangements. In the next decade I think we will see a lot more clearly what effect certain policies have on the institution of marriage and its strength in society.


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