Behind the Law of Marriage (I): From Status/Contract to the Marriage System

Is marriage status or contract? The two legal forms stand in contemporary legal thought as ideal-typical opposites, the two poles of a gradient or spectrum along which marriage moves. Thus, at least five contemporary family law casebooks pose the question whether marriage is status or contract, and then supplant that question by others that render it some mix of both, typically through the question of the enforceability of an antenuptial contract. Thus marriage is status, but with elements of contract. Depending on how many elements of contract we add, marriage moves down the spectrum towards contract. But everyone tacitly agrees that it can never go all the way, because some aspects of marriage are ineradicably different from ordinary contracts. It is status plus some fragmentary elements of contract. This is our modern way of using a distinction that came into American law in 1852, with the publication of Joel Prentiss Bishop's Marriage and Divorce. As I explain in an article entitled “What is Family Law? A Genealogy,” Bishop declared that marriage was status-not-contract and thus solved a number of now-forgotten problems in American law. The status/contract distinction then became a major structural force in the construction of the classical legal order: marriage was status and subject to will of the state, while contract (ideologically, never really) reduced itself to the will of the parties. As I argue, the status/contract distinction came to hold a family/market distinction and to constitute the legal mirror of separate spheres of ideology and supposedly free capital. The status/contract distinction is still with us today. To be sure, for the classics it was a clear opposition while for us it is a dichotomy for describing fragmentary bits of marriage and a language in which to conduct normative battles over the institution. The idea that marriage has some elements that are status and others that are contract, and that they can be calibrated with respect to each other, carries forward the classical ideology of a family/market distinction, applying it not to marriage as a whole but to its parts. It is typical of our legal consciousness that we have transformed this polar opposition into a spectrum. Meanwhile, the fight over same-sex marriage has intensified the idea that marriage is fundamental to the social order, a permanent commitment of the utmost importance, permeated by unshirkable obligation and public normativity. As I show in “What is Family Law? A Genealogy,” these are the very attributes of marriage that classical jurists associated with the term status and with the axiom that marriage was status-not-contract. I am going to argue in this Article that the debate over same-sex marriage has intensified and broadened a social commitment to think of marriage as status. I will argue that this trend represents a new conservative consensus, shared by the same-sex-marriage pro's and the anti's alike, in that both are committed to the idea that marriage is fundamental, permanent, etc. And I will argue that, as this trend intensifies, it fosters a legal consciousness in which ideas about law from the classical era wake up from their slumber and take on new life. Marriage as status is conservative not only in the sense that it commits legal thought to using the institution to preserve tradition, but also in the sense that it provides an inlet into contemporary legal thought about marriage for classical legal ideas. The very idea that marriage is anything--anything at all--is symptomatically classical. This Article attacks that idea, and argues for the revival and updating of a legal realist understanding of the marriage system. This attack has already been made, sadly without persuading the family law legal intelligentsia of its enduring importance. In 1932 and 1933, Karl Lewellyn published “Beyond the Law of Divorce,” a two-part article that is the direct inspiration for my work here. This dazzling article was part of Llewellyn's attack on the social-purpose functionalism which was then the ascendant form of sociological jurisprudence. In that school of legal thought, jurists thought themselves obliged to identify the social purposes to which law is dedicated, enlisting sociological knowledge to ascertain any social problem impeding realization of that purpose, and finally to discern which legal rule best solved the problem. For all its sociological orientation, it was a kind of neoformalism, retaining the top-down and conceptualistic characteristics of classical legal thought, and explicitly a mode of “social engineering” along highly mechanical lines. Llewellyn--who looked out over a legal landscape in which the advent of no-fault divorce was visible, just as we today look out over a legal landscape being overhauled by the struggle over same-sex marriage--thought that this conceptualist neoformalism was disabling family law as a field from dealing with the vastness and the detail of the immanent changes. He sought to blast the functionalists out of the water by exposing the sheer irrationalist complexity of the interaction between law and society. This Article has similar ambitions, but its target is the neoformalism rising in family law today. Like Llewellyn, I seek to offer a replacement for a theory in which marriage “is” something (status? contract?) and to reconceptualize it as its effects. This Article, like its namesake, comes in two Parts. This Part begins with an account of the same-sex marriage campaign, seeking to show how the advocates and opponents of this reform converge on an image of marriage as status (Section II). I then deconstruct the status/contract distinction, replacing it in the process with the idea of a “marriage system” that is irretrievably ambivalent as between status and contract--so much so that the distinction should be deemed to have collapsed--and that can be adequately described only if we shift from reductive images of what “marriage is” to a broad and complex examination of marriage (and its others) as their effects (Section III). I conclude by tying this recommendation back to the family/market distinction in which the status/contract idea developed its deep roots in American legal thought, and recommend that family law as a field reject the family-law exceptionalism which that distinction introduces into our work, and emphasize-- in the family just as much as we would do in the market--the distributive consequences of legal rules (Section IV). Part II of this Article exemplifies the benefits of making this turn by showing how gay rights advocates seeking same-sex marriage were misled by their status-bedazzled ideas of marriage and of law into imagining that it would be easy to deliver marriage on a nondiscriminatory basis to their constituency. They ignored marriage as its effects in a key part of our legal system: interjurisdictional conflicts of law and the rules we have for choosing the law that applies.