A Case for Civil Marriage

View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Columbia Law School: Scholarship Repository Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2006 A Case for Civil Marriage Carol Sanger Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Contracts Commons, and the Sexuality and the Law Commons Recommended Citation Carol Sanger, A Case for Civil Marriage, CARDOZO LAW REVIEW, VOL. 27, P. 1311, 2006; COLUMBIA PUBLIC LAW RESEARCH PAPER NO. 06-133 (2006). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1442 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Columbia Law School Public Law & Legal Theory Working Paper Group Paper Number 06-133 A CASE FOR CIVIL MARRIAGE (Cardozo Law Review, Vol. 27, p. 1311, 2006) BY: PROFESSOR CAROL SANGER COLUMBIA LAW SCHOOL This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=952381 A CASE FOR CIVIL MARRIAGE Carol Sanger* In Leonard Bernstein’s 1953 musical comedy Wonderful Town, there is a terrific song called One Hundred Easy Ways to Lose a Man.1 The heroine, Ruth Sherwood, catalogues all the mistakes a girl can make in trying to get a man. She might, for example, know more than he does about baseball or cars, or in the refrain I have in mind, she might know more than he does about grammar. Worse yet, she might let him know she knows more than he does about baseball, cars, or grammar. As Ruth laments, “Just show him where his grammar errs/And mark your towels ‘Hers’ and ‘Hers.’”2 This was once simply a funny line. But since 1953, and especially since 2003 which brought the Goodridge v. Department of Public Health3 and Lawrence v. Texas4 cases, the line has become much more. It is for some a charming aspiration—all couples can register for monogrammed towels! For others, the possibility of same-sex marriage is a grim prediction of the legalization of moral decay. And in response, there has been a frenzy of legislative activity aimed at nailing down the legal definition of marriage to make sure that there will be no more nonsense about same-sex monograms or same-sex marriage applications. In an effort to slow down the frenzy, and to encourage those within the academy to think harder about the on-going problem of what to do about marriage, Professor Edward Stein has posed a straightforward question: Should civil marriage simply be abolished? In this mini-symposium, Professors Edward Zelinsky and Daniel Crane have provided two answers to his question: yes and yes. Let me explain the double positive. Both authors agree that marriage should not, in Professor’s Zelinsky’s words, be “recognized, defined, or regulated by the state.”5 Both are content to use contract to * Barbara Aronstein Black Professor of Law, Columbia Law School. I am grateful to Kari Hong for her insightful comments. 1 LEONARD BERNSTEIN & ROSALIND RUSSELL, ONE HUNDRED EASY WAYS TO LOSE A MAN (1953), available at http://www.leonardbernstein.com/studio/element2.asp?id=373 (last visited Dec. 22, 2005) (lyrics). 2 Id. 3 798 N.E.2d 941 (Mass. 2003). 4 539 U.S. 558 (2003). 5 Edward A. Zelinsky, Deregulating Marriage: The Pro-Marriage Case for Abolishing Civil Marriage, 27 CARDOZO L. REV. 1161, 1164 (2006). 1311 1312 CARDOZO LAW REVIEW [Vol. 27:3 create enforceable marriage-like obligations.6 Yet their reasons for abolition differ in ways that distinguish their yeses. Both agree that civil marriage should be abolished, but as we see from their paper titles, Professor Zelinsky wants to deregulate marriage7 and Professor Crane wants to privatize it.8 So while I am not going to turn into Ruth Sherwood and start correcting anyone’s grammar (everyone’s grammar was fine), I do want to look a bit harder at this comparative verb usage because the substitute regimes for the relationship formerly known as marriage are imagined differently under Zelinsky’s deregulation than under Crane’s privatization. Deregulation will result in a market for marriage that will produce a multiplicity of contractual regimes from which couples may satisfy their most intimate consumer preferences. Professor Crane acknowledges a similar regime of choice but focuses on the historical case for one in particular, religious marriage. Although I am a Contract Law enthusiast, both arguments began to make me nervous about abolishing civil marriage. I therefore want to explain why, after reading these intriguing papers, I have become an anti-abolitionist, or at least a contract skeptic. I organize my remarks around two propositions. The first is that Professor Zelinsky has more faith in the ability of contract law to organize intimate relationships than I do. I will use his paper to talk about a few general problems of contracting for marriage. Proposition number two is that Professor Crane has too little faith in law and I have too little faith in religion to justify returning marriage to an exclusively religious domain, however valid the historical support may be. I will use Professor Crane’s paper to discuss the particular perils, of privatizing to religion, for women and same-sex couples. I. DEREGULATING MARRIAGE Zelinsky offers several practical reasons why the state should get out of the marriage business. He explains that marriage is no longer necessary for issues of parentage, custody, or adoption; it is not necessary for significant areas of wealth transmission, such as pensions or inheritance.9 Moreover, the benefits that are often associated with marriage—medical decision-making, evidentiary privilege, hospital 6 The idea was proposed forcefully by Martha Fineman a decade ago. See MARTHA FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 226-29 (1995). 7 See Zelinsky, supra note 5. 8 See Daniel A. Crane, A “Judeo-Christian” Argument for Privatizing Marriage, 27 CARDOZO L. REV. 1221 (2006). 9 See Zelinsky, supra note 5, at 1166-73. 2006] A CASE FOR CIVIL MARRIAGE 1313 visitation—are not as robust as most people think.10 In short, Zelinsky argues that, if civil marriage is abolished, the world will not look so very different than it does now. It will certainly not look worse and, from a marital perspective, it may well look much better. Active competition among firms will strengthen the institution. People will feel more committed to domestic arrangements that they have affirmatively chosen. The polity itself will be better off because there will be less squabbling over the meaning of marriage. We can each be “married” in our own way. As a Contracts professor, I am honored that my subject has been chosen for this important assignment. At the same time, I am wary about just how well it is going to perform. As a way of taking seriously Zelinsky’s proposal for contract marriage, I want to explore several doctrinal concerns. I begin with behavior that precedes the contract but upon which its validity may rest: disclosure. At present, only non- disclosures or misrepresentations that go to the heart of the marital relation justify annulment, or what we will now call rescission. This list is small and includes such things as undisclosed impotency or venereal disease.11 In most cases, however, marital partners are more or less warranted “as is,” to use the commercial term and “puffing” is given a wide berth.12 Under the new regime, full disclosure is required; each partner has an affirmative duty to provide all relevant information to the other. (Readers might pause to consider which of their beloved’s behavioral quirks they now realize had not been fully disclosed might have made a difference in their own decision to marry; I suspect the list is varied and interesting.) Full disclosure changes the nature of the transaction that we used to call courtship. And just what would full disclosure entail? Slovenly tendencies? Insights about one’s constancy? Under the contractual model, disclosures would no longer go to the essence of marriage—marriage has been abolished—but to the heart or essence of each particular transaction. If one party is aware of a genetic predisposition to breast cancer or to Alzheimer’s disease, must this fact be revealed? Certainly, the early death or impending incapacity of one’s partner and the implications for physical, emotional, and financial dependence and support is something a contracting partner might want 10 See id. at 1201-05. 11 HOMER CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 98-102 (2d ed. 1988). 12 Under the Uniform Commercial Code, “when the buyer before entering into the contract has examined the goods . as fully as he desired or has refused to examine the goods there is no implied warranty with regards to defects which an examination ought in the circumstances have revealed to him.” U.C.C. § 2-316(3)(b) (1998). For application of the rule in the context of marriage, see Johnston v. Johnston, 22 Cal. Rptr. 2d 253, 254 (Ct. App. 1993) (annulment denied to wife whose messy, unemployed husband had “turned from a prince into a frog”). 1314 CARDOZO LAW REVIEW [Vol. 27:3 to know about ahead of time. Some couples may still choose to exchange “in sickness and in health” promises but others, perhaps on advice of prudent counsel, would not.

Load more