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Joseph R. Long, A Treatise on the Law of Domestic Relations 4, n. 5 (1905).1
The holiness of the matrimonial estate is left entirely to ecclesiastical law. 1 Bl.2
Comm. 433. Accord, II Kent Commentaries on American Law 87. William the
Conqueror separated jurisdiction of the English church from that of the secular courts in
1085 and gave the former exclusive jurisdiction over matrimonial issues. Franklin C.
Setavo, A History of English Ecclesiastical Law (Part I), 18 B.U.L. Rev. 102, 104-107
(1938). During the High Middle Ages, marriage constituted one of the main objects of
papal legislative activity, as well as academic studies at Paris and Bologna. American Law
Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations89 (2002).
Genesis 2:24, Genesis 1:27 ff, Matthew 19:4 ff, 1 Corinthians 6:16, Ephesians 5:31 ff.3
American Law Institute, n. 2supra at 90.4
American Law Institute, n. 2supra at 63. Indissolubility was also scripturally5
mandated. Matthew 19:9, 1 Corinthians 7:10-11, 39.
SEPARATING CHURCH AND STATE: GIVE
CEREMONIAL MARRIAGE BACK TO THE
CHURCH AND THE PEOPLE
From medieval times marriage was both a sacrament and an institution of the
church. For a millennium or more, the ecclesiastical courts, to the complete exclusion of1
the civil courts, had jurisdiction over the determination of the existence of marriage and the
rights and duties of the spouses. Based on Biblical pronouncements, marriage was2 3
regarded by the church to be indissoluble.4
The Christian institution of marriage focusing on lifetime monogamy, displaced
marital forms of the Roman Empire and barbarian lands, as well, that allowed the taking
of multiple spouses in some cultures by permitting polygamy and in other cultures by
tolerating quick and unrestricted divorce and remarriage.5
The first intrusion of temporal authority into the regulation of marriage may have
been during the reign of Henry VIII, when statutes modified the permissible degrees of
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25 Henry VIII, ch. 22, 3, and ch. 38, allowing marriages based on the6
relationship of uncle/niece and aunt/nephew.
That marriage might be validly contracted by mutual premises alone . . . without7
the presence of benediction of a priest, was an established principle of civil and canon
law antecedent to the Council of Trent. Hallett v. Collins, 10 How. (U.S.) 181 (1850).
Cohabitation under marriage-like conditions was regarded by the medieval church to be
a lawful marriage. American Law Institute, n. 2supra, at 95. Geoffrey May, Marriage
Laws and Decisions in the United States 11 (1929).
c. 1, Trid. Sess. XXIV, De reformations matrimonii, Canons et Decreta Sacrosanti8
Oecumenici Concilii Tridenti sub Paulo III, Julio III, et Pio IV (1903).
Gran Lind, Common Law Marriage 122, n. 126 (2002); II Frederick Pollock and9
Frederic W. Maitland, History of the English Law 368 (2d ed. 1898).
26 Geo. II, c. 33.10
Regina v. Millis, 10 Cl. & Fin. 534 (1844).11
Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 161 Eng. Rep. 665 (1811).12
2
consanguinity from those found in the 18 chapter of Leviticus.th 6
While marriages were typically solemnized in church ceremonies, formless
marriages, those in which the spouses simply had declared their intention to be married and
had begun living together, were legally recognized.7
The Council of Trent in 1563 imposed the requirement for the validation of
marriage by solemnization in a ceremony before a priest. In Protestant countries formless8
marriages remained valid. It was not until 1753 that England enacted a statute, Lord9
Hardwickes Act, requiring priestly solemnization; this law was judicially construed to10
reject the validity of a marriage before a Presbyterian minister in Scotland. Also formless11
marriages continued to be valid in Scotland. The American states unanimously refused12
to accept Lord Hardwickes Act as part of the common law and most of the states initially
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Gran Lind, n. 9supra, at 135, n. 16, 137, 140-149; George Elliott Howard,13
A History of Matrimonial Institutions II 125-327, III 170-185 (1904).
The term itself is traceable to I Kent, Commentaries on American Law 2 (1826).14
Some American courts regarded common law marriage to have become part of the
common law. E.g.,Rose v. Clark, 8 Paige (N.Y.) 574 (1841).
E.g.,Milford v. Worchester, 7 Mass. 48 (1810). It is not clear that the enactments15
of marriage form requirements were always deemed mandatory. W. J. Brockelbank,
La Formation du marriage dans le Droit des Etas-Unis 250 (1935); Gran Lind, n. 9
supra, at 155-157, nn. 105-109.
Michael Grossberg, Governing the Heart; Law and the Family in Nineteenth16
Century America 75-79 (1985). E.g., Ala. Code 8996, 8997 (pastor of any religious
society may perform marriage according to the rule or custom of the society;
Mennonites, Quakers and other societies may solemnize marriages according to
their forms).
Gran Lind, n. 9supra, at 957.17
Michael Grossberg, n. 16supra, at 211-212. Motivations to abolish common18
law marriage in many states included the avoidance of disputes and uncertainty.
Gran Lind, n. 9supra, at 176. SeeDuncan v. Duncan, 16 Ohio St. 181, 188 (1859).
3
validated the formless marriage, requiring for its existence only that the couple declared
their intention to be married and lived together as husband and wife, consistent with
Scottish law. These non-ceremonial marriages came to be known as common law13
marriages. Even in those jurisdictions maintaining the requirement of ceremonial14
marriage, there was wide acceptance of varying wedding forms and persons authorized15
to perform weddings. Of course, in all jurisdictions, couples have always had the right16
to choose between church and civil wedding ceremonies.17
Understandably, widespread dissatisfaction arose over the formless common law
marriage. Absent any public record, immense evidentiary problems occurred, frequently
in the context of multiple claimants fighting over marital shares of deceaseds estates.18
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Michael Grossberg, n. 16supra, at 158-159, 956-957; Chambery v. Dickson, 219
5.&R. (Pa.) 475, 476 ff (1816).
[C]overed wagon days are over . . . [;] no person lives, who cannot in some
20
manner easily reach the county court house. In re Estate of Soeder, 7 Ohio App. 271,
220 N.E.2d 547, 562 (1966).
As of 1900, two-thirds of the states recognized common law marriage.21
Michael Grossberg, n. 16supra, at 176, 781.
Plus the District of Columbia. Michael Grossberg, n. 16supra, at 781.22
Between 1970 and 2004 marriage rates per 1000 persons declined in the United23
States (11% to 8%), Europe (8% to 5%), and Australia/New Zealand (9% to 5%).
Gran Lind, n. 9supra, at 784. Bishop, an early commentator on domestic law,
referred to form requirements for marriage as cumbersome and artificial barriers.
Joel Prentiss Bishop, I New Commentaries on Marriage, Divorce and Separation
457 (1891). Presently marriage is in decline because of high rates of divorce,
delayed marriage, cohabitation and unwed parenthood. Judith Stacey, Toward Equal
Regard for Marriage and other Implied Intimate Affiliations, 32 Hofstra L. Rev. 331
(2003).
4
Also early justifications for common law marriages, that of remoteness and
unavailability of celebrants, witnesses and registry offices, disappeared with increasing19
population density and community organization, as well as better transportation.20
Consequently, many states began rejecting or repealing authority from common law
marriage, a process that began in the Nineteenth Century and extended into the early
Twentieth Century. Finally, only thirteen states permitted common law marriage.21 22
While the governing authorities labored to put an end to formless marriages,
couples continued to cohabit without matrimonial ceremonies. As non-marital23
cohabitation became more commonplace, criminal penalties for this conduct fell away, and
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Gran Lind, n. 9supra, at 957.24
The state interest in imposing duties of support and property allocation, that is,25
controlling the dissolution of marriage, also weighed heavily in states decisions torecognize formless marriages in the early days of our country. Michael Grossberg,
n. 16supra, at 160-161.
These courts reasoned that to allow relief would be to damage the institution of26
marriage and reintroduce common law marriage. E.g.,Hewitt v. Hewitt, 77 Ill.2d 49,
394 N.E.2d 1204 (1979);Marone v. Marone, 50 N.Y.S.2d 481, 407 N.E.2d 438 (1980).
18 Cal.3d 660, 557 P.2d 106 (1976).27
Gran Lind, n. 9supra, at 800-812.28
Beginning in Sweden with case law in the 1970's and legislation enacted in 1987.29
Gran Lind, n. 9supra, at 800-820.
See text at n. 2,supra.30
See text at n. 6,supra.31
5
by the end of the Twentieth Century, cohabitation was universally de-criminalized.24
Couples relationships, when they ended by separation or by death, brought about demands
for rights, particularly of property division and inheritance. At first these claims were25
rejected by the courts. Eventually, following the leading case ofMarvin v. Marvin,26 27
many, but not all, jurisdictions began adjudicating these claims on their merits by means
of doctrines such as partnership, implied contract, and unjust enrichment. In Europe,28
Canada, Australia and New Zealand, similar developments occurred in recent years.29
As noted above, under early English law, all matters relating to marriage were
determined by the ecclesiastical courts. The church tribunals thus exercised what we30
would now regard to be governmental authority. As statutes relating to marriage came to
be enacted, secular courts began to adjudicate certain marital issues. For instance,31
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Joseph R. Long, n. 1supra, at 12, 130-131; Epaphroditus Peck, The Law of Persons32
and of Domestic Relations 20-22 (2d ed. 1920); Geoffrey May, n. 7supra, at 8-10.
Joseph R. Long, n. 1supra, at 12, 22-25; Epaphroditus Peck, n. 32supra, at 134-33
135; Geoffrey May, n. 37supra, at 8-10.
The American society had no state church. Many emigrated here under state34
confessional oppression. Gran Lind, n. 9supra, at 152.
See text at nn. 3, 4.35
No-fault divorce was adopted first in California in 1970. By 1985 it had spread36
to half the states, and it became universal before the turn of the century. Gran Lind,
n. 9supra, at 882. See L. J. Weitzman, The Divorce Revolution 15, 41-43 (1985).
N. E. Dowd, Law, Culture and Family: The Transformative Power of Culture37
and the Limits of the Law, 78 Chi-Kent L. Rev. 785, 789 (2003).
6
proceedings to set aside marriages based on consanguinity and impotence, were adjudicated
by the canonical courts, whereas those dependent to prior marriages, unsoundness of32
mind, and want of sufficient age, were within the jurisdiction of the civil courts. The33
American states never accepted the authority of ecclesiastical courts to determine the lawful
existence of marriage and to decide about marital rights, because church jurisdiction over
marriage would have plainly violated the separation of church and state.34
The former indissolubility of marriage over time was altogether swept away, and35
at present divorce on demand is available in every American jurisdiction.36
The preceding discussion makes it plain that changing family practices change the
law, but the law ultimately is not successful in changing the family. The cultural reality of
the family can be transformative or subversive of the law. Law is an ineffective instrument
to accomplish change of the family. The law may facilitate change or support it, but the
law cannot force change or stop it. With this reality in mind, we can consider and37
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The right to marry is of fundamental importance, one of the basic civil rights38
of men. Zablocki v. Redhail, 434 U.S. 374, 383-384 (1978). The freedom to marry
has long been recognized as one of the vital personal rights essential to the orderly
pursuit of happiness by free men. Marriage is one of the basic civil rights of man,
fundamental to our very existence and survival . . . Loving v. Virginia, 388 U.S. 1,
12 (1967).
___ U.S. ___ (2003).39
478 U.S. 186 (1986).40
41
Leviticus 18:22 and 20:13, Romans 1:26-27, I Corinthians 6:9, I Timothy 1:8-10.42
7
determine what should be the reasonable response of the law to current demands for same-
sex marriage. But before doing so, we must consider the constitutional limits that apply.
The right of a heterosexual couple to marry is a firmly established constitutional
right. The right of homosexuals to engage in physical sexual activities in private was38
established, at least in those jurisdictions where heterosexual sodomy is not criminalized,
in Lawrence v. Texas, a 2003 decision that overruled the 1986 case of Bowers v.39
Hardwick. Understandably, advocates of same-sex marriage anchor their arguments on40
these two constitutional doctrines.41
Much of the controversy and anger relating to same-sex marriage stems from the
traditional deeply religious character of marriage, and the belief that this ancient sacrament
of the church is violated when the union of homosexuals is blessed in violation of Biblical
commands.42
The struggle for governmental acceptance of same-sex marriage is mirrored,
actually exceeded, by disagreements within church denominations about whether the
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43
William N. Eskridge, Jr., The Case for Same-Sex Marriage 189 (1996).44
45
46
47
Joseph R. Long, n. 1supra, at 75; Goshen v. Stonington, 4 Conn. 209, 10 Am.48
Dec. 121 (_____).
8
churches pastorates must consecrate same-sex unions. Some denominations, including43
evangelical Lutherans, Episcopalians, Congregationalists, most Quaker meetings,
Unitarian-Universalists, and Reformed Jews have opted to perform marriages of same-sex
couples. Other denominations have refused, including Catholics, Greek Orthodox,44
Methodists, Presbyterians, and Missouri and Wisconsin Synod Lutherans. These45
decisions have been characterized by bitter struggles, resulting in departures of numerous
disaffected members, clergy, and even whole congregations.46
If pastors of churches were not expected to carry out the state function by
performing marriages, the intensity of conflict within religious denominations would be
greatly diminished. Same-sex marriage applicants would no longer be able to claim that
the church, by not marrying them, was depriving them of their right to a ceremonial
wedding that is recognized by the government and confers a concomitant array of legally
recognized benefits.47
When a member of the clergy performs a wedding, he acts as an agent of the state.48
The extrication of the clergy from this role may not only be wise public policy, but also
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403 U.S. 602 (1971).49
459 U.S. 116 (1982).50
459 U.S. at 127.51
463 U.S. 783 (1983).52
9
may, as well, be constitutionally mandated under church-state separation principles.
A legal connection between church and state amounts to an unconstitutional
establishment of religion, according to the familiarLemon v. Kurtzman tests, unless49
(1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and
(3) it avoids creating an excessive entanglement between government and religion. A
violation of any one of these criteria is a violation of the establishment clause. The aspect
of marriage celebrated by a member of the clergy that creates the greatest constitutional
problem, is the delegation of a state function, the formation of a marital union, to a church.
Pastoral celebration of marriages becomes highly suspect constitutionally in light ofLarkin
v. Grendals Den, Inc. That decision invalidated a law giving religious entities the power50
to veto applications for liquor licenses in areas near churches and religious schools. The
court reasoned that the statute was susceptible to being used for the promotion of religious
rather than secular ends, and the church exercised a governmental power that was subject
to no clear secular standard. The court concluded that the law impermissibly enmeshes
churches in the exercise of governmental powers. Yet the granting of official status to51
church wedding ceremonies is deeply grounded in history, and long history of acceptance
of a practice weighs in favor of its constitutionality, as determined inMarsh v. Chambers ,52
where the employment of a chaplain by the state legislature was upheld. The court warned
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463 U.S. at _____.53
463 U.S. at _____.54
435 U.S. 618 (1978).55
Compare Sherryl E. Michaelson, Note, Religion and Morality Legislation: A56
Reexamination of Establishment Clause Analysis, 59 N.Y.U.L. Rev. 301, 309-311
(1984) (does unconstitutionally establish religion) with Emily Taylor, Note, Across
the Bond: The Dismantling of Marriage in Favor of Universal Civil Union Laws,28 Ohio Northern U.L. Rev. 171, 179 (2001) (does not unconstitutionally establish
religion).
See cases cited in n. 38supra.57
Harper v. Virginia Board of Elections, 384 U.S. 663, 672 (1966).58
10
that history could not justify contemporary violations of the establishment clause, but53
sustained the statute because in practice the chaplains prayers had never resulted in the
establishment of religion or an encroachment on separation of religious beliefs from
governmental functions. The Supreme Court inMcDaniel v. Paty, invalidated a state54 55
statute prohibiting ministers of the Gospel and priests from serving as delegates to the
states constitutional convention. Here, of course, we have the reverse: ministers are
compelled to act as agents of the state when they perform weddings. Commentators are
divided in their opinions as to whether a member of the clergy who performs the marriage
ceremony and signs the marriage license is thereby carrying out an unconstitutional
establishment of religion.56
The right of heterosexual couples to marry is a fundamental constitutional right.57
Under well established constitutional doctrine, any limitation or reduction of that right, if
it is valid, must be based on a compelling governmental interest, and must not be58
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Harper v. Virginia Board of Elections, n. 58supra, at 672.59
See text at nn. 1, 2supra.60
See text at nn. 6, 30-33.61
See text at n. 34.62
Geoffrey May, n. 37supra, 8-10; Gran Lind, n. 9supra, at 191-207; Joseph R.63
Long, n. 1supra, at 26-27; Epaphroditus Peck, n. 32supra, at 126-128.
Frank Keezer, The Law of Marriage and Divorce 24 (1971); Joseph R. Long, n.164
supra, at 38-43; Epaphroditus Peck, n. 32supra, at 143-144.
Frank Keezer, n. 64supra, at 23; Joseph R. Long, n. 1supra, at 15, 52-53, 76-77.65
Frank Keezer, n. 64supra, at 23; Joseph R. Long, n. 1supra, at 15, 52-53, 76-77.66
Geoffrey May, n. 37supra, at 8-10; Joseph R. Long, n. 1supra, at 27-32;67
Epaphroditus Peck, n. 32supra, at 129-130.
Joseph R. Long, n. 1supra, at 20-22; Epaphroditus Peck, n. 32supra, at 131-134.68
11
achievable by any less restrictive means.59
Marriage everywhere has been regulated, at first by the church acting as lawmaker
and adjudicator, later divided between the church and state in parallel systems of justice,60 61
and finally by secular institutions exclusively.62
The asserted governmental or societal interests in regulating marriage are (1) to
prevent or annul marriage where a condition precludes the mutual voluntary consent to
enter into marriage by reason of (a) infancy or age minima, (b) fraud or duress, (c) joke,63 64 65
(d) mistake, (e) insanity, and one can add (f) impotence (although it does not quite fit66 67
this matrix); and (2) to prevent or annul marriages contrary to established mores against68
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Joseph R. Long, n. 1supra, at 22-25; Epaphroditus Peck, n. 32supra, at 134-135;69
Gran Lind, n. 9supra, at 207-213 and nn. 68, 69, 73. Constitutional principles of
religious freedom will not prevent conviction for bigamy. Reynolds v. United States,
98 U.S. 145 (1978). The organization of a community for the spread and practice of
polygamy is . . . contrary to the spirit of Christianity and of the civilization which
Christianity has produced in the Western world. Mormon Church v. United States,
136 U.S. 1, 49 (1890).
Epaphroditus Peck, n. 32supra, at 131-134; Frank Keezer, n. 64supra, at 19;70
Joseph R. Long, n. 1supra, at 18-20. The very first secular regulations of marriage,
laws adopted in the reign of Henry VIII, modified the Biblical laws on incest. Seetext at n. 6,supra.
Joseph R. Long, n. 1supra, at 33-34; Frank Keezer, n. 64supra, at 18. Of course,71
these laws were held unconstitutional inLoving v. Virginia, 388 U.S. 1 (1967).
DeSanto v. Barnsley, 328 Pa.Super. 181, 476 A.2d 952 (1984); Ga. Code Ann.72
19-3-3.1(a); Iowa Code Ann. 595.2, Kan. Stat. Ann. 23-101; Okla. Stat. Ann.
Tit. 43 3; S.C. Code Ann. 20-1-15; Utah Code Ann. 30-1-2(5); 23 Pa. Cons.
Stat. Ann. 206. The earliest specific regulation of marriage, that banns be published
in advance and the wedding ceremony be public, was enacted by the Fourth Lateran
Council in 1215, to guard against the impediments to marriage of infancy, consanguinity,and bigamy. Gran Lind, n. 9supra, at 93, 119; Pope Innocentius III, Letter to Archbishop
of Upsala, April 15, 1216.
Geoffrey May, n. 31supra, at 15-27; Gran Lind, n. 9supra, at 1007-1008.73
See n. 71,supra.74
12
(a) bigamy (and polygamy), (b) incest, and (c) formerly racial miscegenation, and (d)69 70 71
same-sex unions. Last, but certainly not least, is the governmental interest in maintaining72
records of marriages and divorces for the sake of establishing property and support rights
upon dissolution of marriage, establishing rights of inheritance and related entitlements on
the death of a spouse, and finally genealogical research. The above exclusions from the73
freedom of marriage, with the exception of miscegenation, which has been overthrown,74
and of same-sex marriage, which is the subject of an extremely vigorous contemporary
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75
Frank Keezer, n. 64supra, at 9-10.76
William J. ODonnell and David A. Jones, The Law of Marriage and Marital77
Alternatives 17 (1982); Drinan, The Loving Decision and the Freedom to Marry,
29 Ohio St. L.J. 358, 376-377 (1968). Replacement of marriage by a civil or domestic
union is advocated in Emily Taylor, Note, Across the Bond: The Dismantling of
Marriage in Favor of Universal Civil Union Laws, 28 Ohio Northern J. L. Rev. 171,
173-174, 191-192 (2001).
Gerard v. Bradley, Same-Sex Marriages: Our Final Answer? 14 Notre Dame J.78
Law, Ethics & Public Policy 729, 731 (2000).
See text at nn. 8, 10supra.79
N. 22supra.80
See text at n. 13supra.81
13
debate, are easily sustained by compelling state interests that are not otherwise achievable.75
There is one remaining exception to unrestrained freedom of marriage. That is the
requirement of either a religious or secular ceremony. Unlike the other exceptions76
discussed above, no compelling state interest can be identified to support this legal
requirement. There is no necessity of a ceremonialized marriage; marriage can be
adequately effectuated merely by official registration. The requirement of a ceremony77
seems to be purely an accident of history, history rooted in church practices and doctrines,78
and in the United States, by history - - in the form of the Council of Trent and Lord
Hardwickes Act - - neither of which was incorporated into the common law. The79
needlessness of a marriage ceremony as a legal requirement is confirmed by the practices
of common law marriage in the 14 jurisdictions where it is recognized, which by its very80
definition comes into being without formal solemnization. The principal objection to81
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See text at n. 18supra.82
14
common law marriage, that it creates no official record, would be obviated by a simple
requirement that such unions be recorded, not that they be solemnized. Couples,82
heterosexual and homosexual alike, could seek blessings of marriage in their churches. For
same-sex couples (and for heterosexual couples, one or both of them who had previously
been divorced), the granting or withholding of religious blessing would be entirely up to
the particularly religious denomination, as it is now. However, by removing the clergys
participation as an agent of the state, not only would principles of church-state separation
be advanced, but also the cause of religious freedom would be supported by releasing the
subtle, and sometimes not so subtle, pressures on the clergy to bless unions that they feel
are religiously wrong. In sum, the interests of both branches of the First Amendment
religion clause, freedom of worship and church-state separation, would be promoted.
Much of the raging debate about the legitimacy of same-sex marriages focuses on
whether these marriages must be recognized by the state. If a same-sex couple has merely
a domestic union and not a marriage in the eyes of the state, then opposition becomes
considerably reduced. Moreover, if all couples in cohabiting relationships, heterosexual
and homosexual alike, are effectively registered as domestic unions but with entitlement
to all spousal rights, and not as marriages, the grounds for seeking official recognition of
same-sex marriage would disappear altogether. No longer could same-sex couples
complain of discrimination at the hands of the state, since all couples, heterosexual and
homosexual, would be treated alike. Only domestic union registration, not registration of
marriage, would be offered by the government. Marriage would be what it anciently was,
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Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2009);83
Baker v. State, 744 A.2d 864 (Vt. 1999);Kerrigan v. Department of Public Health, 2008
W.L. 4530885 (Conn. 10/28/08). Same-sex marriage is also legalized in Canada, The
Netherlands and Belgium. Many states, on the other hand, have statutes forbidding same-
sex marriage. Appendix, State Anti Same-Sex Marriage Statutes, 16 Quinnipiac L. Rev.
134 (1996).
Hawaii Const., Art. I, 23 (nullifyingBaehr v. Lewin, 875 P.2d 225 (Haw. 1993);84
Alaska Const. Art. I, 25 (nullifyingBrause v. Bureau of Vital Statistics, WL 88743(Alaska Super. Ct. 1998); California, Proposition 8 (2008) (nullifyingIn re Marriage
Cases, 183 P.3d 384 (Cal. 2008).
85
N. 105, infra.86
15
a status to be granted or denied solely by ones church acting with complete freedom and
without exercising any function of the state.
Presently three states offer same-sex couples the right to marriage. In three states83
cases requiring the recognition of same-sex marriage have been reversed by constitutional
amendments. In one of these states, California, the outcome is not clear, because the state84
constitutional change is subject to a challenge on federal constitutional grounds. All of85
this trouble could be eliminated if the state no longer were in the business of passing on the
validity of marriages.
Domestic union legislation, on the other hand, has been adopted in seven
jurisdictions, reflecting a considerably broader public acceptance for this status, than for86
same-sex marriage.
By count of the General Accounting Office, there are 1,138 legal benefits of one
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Linda J. Lacey and D. Marianne Blair, Symposium: The Legislative Backlash to87
Advances in Same-Sex Couples, 40 Tulsa L. Rev. 371, 415, n. 290 (2004).
William J. ODonnell and David A. Jones, n. 77supra, at 16.
88
William J. ODonnell and David A. Jones, n. 77supra, at 16.89
William J. ODonnell and David A. Jones, n. 77supra, at 16.90
William J. ODonnell and David A. Jones, n. 77supra, at 16; Milton C. Regan, Jr.,91
Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation, 76 Notre
Dame L. Rev. 1435, 1438 (2001); Linda J. Lacey and D. Marianne Blair, n. 87supra, at
417; Gran Lind, n. 9supra, at n. 216.
E.g., N.C.G.S. 29-14.92
E.g. N.C.G.S. 30-31, et seq.93
E.g., N.C.G.S. 28A-4-1(b)(1).94
Linda J. Lacey and D. Marianne Blair, n. 87supra, at 417.95
William J. ODonnell and David A. Jones, n. 77supra, at 16; Linda J. Lacey and D.96
Marianne Blair, n. 87supra, at 417.
William J. ODonnell and David A. Jones, n. 77supra, at 16.97
William J. ODonnell and David A. Jones, n. 77supra, at 16; 26 U.S.C. 250398
(unlimited marital deduction for estate and gift taxes); 26 U.S.C. 6013(a) (joint tax
returns); 26 U.S.C. 152(b)(5) (dependency exemptions); 26 U.S.C. 1001(c) (no
taxable gains on property transfers).
Gran Lind, n. 9supra, at 216.99
16
kind or another that traditionally depended on the existence of marriage. These include87
support, alimony, property division, claims for loss of consortium, the right to inherit88 89 90 91
upon death intestate, the right to force a surviving spouses share upon death testate, the92 93
right to administer the estate of the deceased intestate spouse, social security survivors94
benefits, government pensions, employment benefits, numerous tax advantages (for95 96 97
example, a 100% deduction against the taxable estate), wrongful death claims,98 99
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Family and Medical Leave Act, 29 U.S.C. 2611, 2612(a)(1), (c).100
Milton C. Regan, Jr., n. 91supra, at 1460.101
8 U.S.C. 1255(e)(3).102
E.g.,Parker v.Quinn-McGowan Co., 262 N.C. 560, 138 S.E.2d 214, 215 (1964).103
28 C.J.S. Dower and Curtesy 2, 136. See also e.g., N.C.G.S. 30-15 for a104
benefit in the nature of a surviving spouses years allowance.
Gran Lind, n. 9supra, at 216 (wrongful death claims); Cory v. Edgett, 111105
Cal.App.3d 230, 168 Cal.Rptr. 686 (1980) (inheritance and gift tax deductions);
Califano v. Boles, 443 U.S. 282 (1979) (social security survivors benefits);
Estate of Hall, 707 N.E.2d 201 (Ill. 1998) (surviving spouses share of estate).
Preferences for married persons are permissible in various contexts. California v.
Jobst, 434 U.S. 47, 58 (1977);Michael H. v. Gerald D., 491 U.S. 110 (1989).
See text at nn.27-29supra.106
J.A. Hein, Caring for the Evolving American Family: Cohabiting Partners and107
Employer Sponsored Health Care, 30 N.M.L. Rev. 19 (2000).
Gran Lind, n. 9supra, at 846-861. See 15 Vt. Stat. Ann. 1201-1207 (1999);108
Conn. Gen. Stats. 46b-38pp (2007); N.J. Stat. Ann. 37:1, 37:2 (2007); Cal. Domestic
Partners Rights and Responsibilities Act (2003); District of Columbia Partnership Equality
Amendment Act of 2006, D.C. Law 16-79; 2003 Me. Laws 672; Haw. Rev. Stat.
572c-1, 572c-3. Laws also provide for domestic unions in Denmark, Norway, Sweden,
17
employment leave on account of spouses illness, spousal evidentiary privilege, right100 101
of immediate citizenship, right to make funeral and burial arrangements, and102 103
allowances in the nature of homestead, dower and curtesy.104
These benefits are not available to domestic partners, who are not lawful
spouses with three important exceptions: (1) where theories such as partnership,105
implied trust and unjust enrichment are applicable to cohabiting couples; (2)106
where employers, without being legally required to do so, grant benefits to domestic
partners; and (3) in those several jurisdictions that recognize domestic unions.107 108
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Iceland, Greenland, Finland, The Netherlands, Spain (Aragon and Catalonia), France,
Germany, Switzerland (Geneva and Zurich), Australia, Canada, Croatia, Hungary, Ireland,
New Zealand and Portugal. Grace G. Blumberg, Legal Recognition of Same-Sex Conjugal
Relationships, 51 U.C.L.A.L. Rev. 1555, 1572-1574 (2004).
Gran Lind, n. 9supra, at 847. For example, California Family Code 297109
specifically allows hospital visitation, insurance beneficiary eligibility, standing to sue
for negligent infliction of emotional distress, health insurance coverage for public
employees, retirement benefits for some government employees, sick leave, tax
treatment, medical decision making and community property.
Gran Lind, n. 9supra, at 847. See the specific prohibitions of bigamy/polygamy110
or incest, or both, in 15 Vt. Stat. Ann. 1203 (1999); Conn. Gen. Stats. 466-38pp (2007);
N.J. Stat. Ann. 37:1, 37:2 (2007); Cal. Family Code 297(b). The existence of these
provisions should assuage fears that marriage would be extended to polygamy and group
marriage. Linda C. McClain, Intimate Affiliation and Democracy: Beyond Marriage,32 Hofstra L. Rev. 379, 381 (2003); Mark Strasser, Loving, Boehn and the Right to
Marry, 24 Nova. L. Rev. 769, 788-790 (2000).
111
Gran Lind, n. 9supra, at 1074-1076.112
18
Domestic union laws frequently grant couples many of the rights and obligations
of spouses. Also these statutes typically prescribe the same legal requirements that are109
applicable to traditional marriage, such as age, monogamy, and consanguinity.110
One of the most pressing claims by same-sex couples is that they be allowed to
marry in order to have access to the benefits conferred by the government. If all couples,111
heterosexual and homosexual alike, had access to equal benefits by means of regulated
domestic unions, as could easily be accomplished by appropriate legislation, these claims
would disappear.112
The question of whether or not to allow same-sex marriage is hugely controversial,
laden with religious and other traditional values, and not easily resolvable or likely to be
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Martha A. Fineman, Why Marriage? 9 Va. J. Soc. Policy & L. 239 (2001).113
See text at nn. 39-41. It is argued that the prohibition of homosexual marriage114
causes homosexuals to undertake heterosexual marriage for the sake of conformity,
convenience and social advantage, likely causing harm to themselves, their spouses,and their children. William J. ODonnell and David A. Jones, n. 77supra, at 47-48.
William J. ODonnell and David A. Jones, n. 77supra at 47-48.115
Veitch, The Essence of Marriage - A Comment on the Homosexual Challenge,116
5 Anglo-Am. L. Rev. 41, 44-45 (1976).
19
resolved in the near future.
Proponents of same-sex marriage claim that traditional marriage is an imperfect
institution, that is not sufficiently inclusive, failing to represent the full range of forms of
intimate affection.113
Opponents of same-sex marriage use arguments that, for the most part, do not
withstand careful scrutiny. The complaint that same-sex marriage is morally and
ideologically objectionable is constitutionally problematic, considered in the light of the
overruling ofBowers v. HardwickbyLawrence v. Georgia. The claim that marriage114
implies reproduction and child rearing is overwhelmed by the reality that many
heterosexuals who marry are incapable of reproduction, or do not desire or refuse to have
children, and that couples in same-sex unions can raise children and by artificial means of
reproduction can procreate. The argument that marriage presupposes heterosexuality,115
states only a conclusion and offers no reasoned analysis. This conclusion is grounded on
the assumption that penile-vaginal intercourse is a crucial test of marriage. The vice of116
this assumption is that heterosexuals in marriage are free to, and do, engage in a variety of
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William J. ODonnell and David A. Jones, n. 77supra, at 48-49.117
William J. ODonnell and David A. Jones, n. 77supra, at 48-49. If procreation118
were essential to marriage, then post-menopausal women, sterile people, and aged couples
should not be allowed to marry, nor should those who use contraceptives, women who
abort, and those who have no intention of having intercourse. William N. Eskridge, The
Case for Same-Sex Marriage 96, 183 (1996). Same-sex couples are allowed to adopt
children as a result of court decisions in at least nine states, and by statute in three
other states. William C. Duncan, The Social Good of Marriage and Legal Response
to Non-marital Cohabitation, 82 Ore. L. Rev. 1001, 1021-1022, nn. 172, 174 (2003).
Utah, Mississippi, and Florida specifically prohibit homosexual adoption. Id., at 1022,nn. 175, 176; Fla. Stat. 63.042(3).
See Lynn Wordle, The Bonds of Matrimony and the Bonds of Constitutional119
Democracy, 32 Hofstra L. Rev. 349, 372 (2004).
120
20
sexual practices, and some are incapable of carrying out penile-vaginal intercourse. The117
argument continues that marriage means having families, and members of same-sex unions
should not have families; but this proposition, as well, founders on the facts that
homosexuals do have children, either from former unions, by artificial means, or by
adoption, while heterosexual marriages often do not last and these families often split up.118
Ultimately, justification of union between man and woman, as the only permissible form
of marriage, has to be dependent on values of traditional religion and morality.119
While much of the current debate with which this article is concerned, focuses on
relationships of same-sex couples, it must be remembered that many cohabiting
heterosexual couples opt against marriage for a variety of reasons. Principally, these are
being opposed to marriage as an institution on account of its religious roots, and lacking120
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Frances K. Goldschneider and Linda J. White, New Families, No Families? The121
Transformation of the American Home 62-63 (1991); Milton C. Regan, Jr., n. 91supra,
at 1450-1462.
N. E. Dowd, n. 37supra, at 789.122
See text at n. 23,supra. According to the 2000 census, 9.1% of households123
(5,475,768) are headed by unmarried persons, and 10.9% of these (594,391) are
comprised of same-sex couples. T. P. Gallanis, Inheritance Rights for Domestic
Partners, 79 Tul. L. Rev. 55, 59 (2004).
21
that degree of commitment which marriage entails. In sum, it must be recognized that121
while the dominant legal norm is the heterosexual, marital biological family, social and
cultural patterns are substantially at odds with this norm. Experience has taught, if122
nothing else, that couples, be they opposite sex or same sex, will make relationship
arrangements to suit themselves, regardless of what limits or forms of relationship that the
state may seek to impose.123
To limit choices only between state sanctioned marriage, on the one hand, and mere
cohabitation, on the other hand, leaves entirely too great a gap, a void to which many
relationships would be consigned.
Offering an option for formalizing commitment, other than traditional marriage,
would have multiple salutary effects:
(1) Many couples who did not want to marry, but desired to raise children, or
were already in the process of raising children, might elect such an option. Formal
relationships have great advantages over mere cohabitation, with respect to the health and
well being of children. The latter is characterized by more fights and violence, lower levels
of child support, lowest academic performance, highest school behavior problems, more
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Lynn D. Wordle, Preference for Marital Couple Adoption - Constitutional and Policy124
Reflections, 5 Journal of Law & Family Studies 345, 369-375 (2003); William C. Duncan,
n. 118supra, at 1005-1014. In fairness it should be noted that the methodologies of these
studies have been criticized. Id., at 1015.
125
See text at nn. 115-119,supra.126
The California decision upholding same-sex marriage, was struck down an initiative127
adopted by 61% of the voters. Thomas M. Messner, Same-Sex Marriage and the Threat
to Religious Liberty, Backgrounder No. 2201, Heritage Foundation, n. 16, (Oct. 30, 2008).
In turn the court decision was nullified by a constitutional amendment. See n. 135, infra.
22
child abuse, higher levels of depression, and more alcohol and drug abuse, according to
several studies.124
(2) The controversy over same-sex marriage has been enormous and shows no
signs of any timely resolution. If some acceptable solution is not found, there is every
reason to expect a debate as contentious, divisive, and persistent as the debate over
abortion. The general public is opposed to same-sex marriage by wide margins, ___%
against and only ___% in favor, according to the polling data. With persistent demand125
for the benefits of marriage supported by the more logical arguments, on the one hand,126
but with high majority public opposition, on the other hand, recognition of same-sex
marriage is destined to have an uneven course. There will be over-reliance by its advocates
on court decisions, non-majoritarian sources of governance, and there likely will be
reversals of judicial and legislative decisions, by constitutional amendments voted on by
the people. Such developments have already occurred. Court decisions requiring127
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The right of same-sex persons to marry was determined by court decisions in128
Massachusetts, Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004), and
Vermont,Baker v. State, 744 A.2d 864, 886 (Vt. 1999).
1 U.S.C. 7.129
28 U.S.C. 1738c.130
T. P. Gallanis, n. 123supra, at 71; Haw. Const., Art. I, 25; Lamda Legal, Status131
of Same-Sex Relationships Nationwide (2008); Linda J. Lacey and P. Marianne Blair,
n. 91supra, at 392.
T. P. Gallanis, n. 123supra, at 70, n. 92.132
Linda J. Lacey and P. Marianne Blair, n. 91supra, at 414; T. P. Gallanis, n. 123133
supra, at 75.
Boehr v. Lewis, 852 P.2d 44 (Haw. 1993);Brause v. Bureau of Vital Statistics,134
WL 88743 (Alaska Supr. Ct. 1998).
Haw. Const., Art. I, 23; Alaska Const., Art. I, 25; California, Proposition 8135
(2008).
23
recognition of same-sex marriage have been made in Massachusetts and Vermont. The128
United States Congress passed the Defense of Marriage Act in 1996, providing that in129
interpreting federal laws and regulations, marriage means a legal union of one man and one
woman as husband and wife. The statute further provides that no state is required to give
effect to any public record or adjudication that upholds same-sex marriage. More than130
half of the states, 26 of them, adopted constitutional amendments banning same-sex
marriage, 38 states have enacted laws patterned after the federal Defense of Marriage131
Act, and 18 states have constitutional amendments refusing to recognize same-sex132
marriages performed elsewhere. Hawaiis, Alaskas, and Californias judicial decisions133
requiring recognition of same-sex marriage were reversed by constitutional amendments134
defining marriage as between one man and one woman.135
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Tex. Family Code Ann. 2.402 (Vernon 2005).136
Vermont civil unions are available only to persons of the same sex. Vt. Stat.137
Ann. 1204(e)(7). California civil unions are available only for same-sex couples
and for opposite-sex couples over the age of 62. Cal. Family Code 297.
The right of inheritance often is not offered in domestic union laws. T. P. Gallanis,138
n. 123supra, at 79. Californias domestic union law provides many of the same benefits
as marriage: hospital visitation, insurance-beneficiary designation, standing to sue for
negligent infliction of emotional distress, health insurance coverage for public employees,
retirement benefits for some government employees, sick leave, tax treatment, medical
decision-making, and community property. Cal. Family Code 297. Hawaiis
domestic union law provides for a more restricted set of benefits: family leave,
hospital visitation, health insurance coverage, and elective share of deceaseds estate.
Haw. Rev. Stat. 572C-1, 572C-3. Vermont purports in its domestic union law to
provide all the benefits of marriage. 15 Vt. Stat. Ann. 1201-1207 (1999).
24
A freely accessible registered domestic union is the middle ground that would both
ratchet down the anger and disarray created by the drive for same-sex marriage, and also
provide an acceptable niche for heterosexual couples who did not want to enter into
traditional marriage.
A basic format for the universal domestic union is found in Texas legislation
providing for registered common law marriage. To answer the needs identified in this136
article, the legislation must be applicable to heterosexual and same-sex couples alike.
Some of the existing domestic union laws are deficient in this respect, being reserved only
for same-sex couples. In order to be a fully acceptable alternative to marriage, domestic137
union laws, should either (1) extend all marital benefits and obligations to partners in
domestic unions, which is not the case now and varies from jurisdiction to jurisdiction,138
or (2) allow the parties to select which rights and obligations they choose to assume, much
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E.g., N.C.G.S. 32A-1.139
See text at nn. 63-70. Under current domestic union laws only certain prohibitions140
are articulated. E.g., incest and bigamy in Vermont, 15 Vt. Stat. Ann. 1203, and in
California, Cal. Family Code 297(b). Most civil union laws contain requirements
regarding age and consanguinity. J. A. Hein, n. 107supra, at 847.
See A.L.I., Principles of the Law of Family Dissolution: Analysis and141
Recommendations, Ch. 4 and 6 (2002) (recommends legislation concerning division
of property and making compensatory payments where relationship of domestic partners
is dissolved through separation).
See text at nn. 73-75supra.142
A principal reason the Massachusetts court held that the domestic union143
law was not sufficient to protect the rights of same-sex couples, and that they must
be given the right to marry. Goodridge v. Department of Public Health, 440 Mass.
309, 798 N.E.2d 941 (2009).
25
like the checklist format that is offered in statutory short form powers of attorney.139
Universally applicable domestic union laws also should contain the same
prohibitions against unlawfulness that the state has traditionally enforced with respect to
marriage: underage unions, unions the product of fraud or duress, unions the result of joke
or mistake, unions of insane persons, bigamous unions, and incestuous unions. Further,140
there should be standard provisions for rights of the parties on dissolution of a union.141
Domestic union laws, of course, would necessarily require, as they now do, public
registration, so that there would be no uncertainty as to the existence of a relationship.142
Domestic union laws conforming to the foregoing standards would be less likely,
than some current laws on the subject, to be subject to potentially successful attacks as
discriminatory on the basis of sex.143
Another salutary feature of the type of domestic union laws proposed here, is that
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In 2004 referenda in 11 states answered no to same-sex marriage, but in three144
states civil unions were accepted by the voters. Gran Lind, n. 9supra, at 855.
There is no need to have any civil ceremony at all. The states interest can be fully145
served by simple registration. The ceremony can be none, religious, or non-religious,
public or private, all at the parties choosing. This is highly logical if the state espouses
freedom of religion. Such a system would also be able to defuse the controversial issue
of a homosexual couples right to marry ceremonially. Gran Lind,supra n. 9, at 1074-
1077. In Western Europe, including Germany, France, Belgium and The Netherlands,
religious marriage ceremonies are optional and have no legal significance; only the
simple, brief civil ceremony is of legal consequence. Id., at 1074, n. 5.
See text at n. 1,supra.146
See text at nn. 48-56supra, with respect to church-state separation. Also collisions147
implicating religious freedom would be greatly curtailed. These have been identified as
including (1) states conditioning grants of government benefits on recipients renouncing
opposition to same-sex marriage, (2) greater exposure of religious individuals and
institutions supporting solely heterosexual marriages to liabilities under civil rights laws
that protect sexual orientation. Thomas M. Messner, n. 127supra, at 7, 15; Eugene
Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L. Rev. 1155, 1179 (2005).
26
there would be far less public opposition than provisions allowing same-sex marriage.144
Finally, and perhaps most importantly, domestic union laws should be the exclusive
means for marriage and other committed living arrangements to be recognized by the state.
The ceremonial marriage would never be required, but always permitted, offered, not by
the government or its functionaries (including members of the clergy acting as agents of the
state under the present system), but by churches and whatever other organizations chose to
do so. The ceremonial wedding would be cut loose from the bonds of government and145
would be returned to the church; it would be placed back in its state of historical origin.146
The central First Amendment values of church-state separation and religious freedom
would be greatly advanced. Strident and unseemly public debate about who is qualified147
to participate in a ceremonial marriage would be ended. It would be up to each religious
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27
denomination or institution to make that decision, with no effect whatever on matters
within the realm of government, regardless of what the decision was.
- by Daniel W. Koenig and
Norman B. Smith
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