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The Good Society 11.3 (2002) 84-87

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Legislating in the Shadow of Nature

J. Herbie DiFonzo

Should there be a relationship between law and marriage? That this issue may legitimately be raised today suggests the daunting contingency of history. Such a question would have been as incomprehensible to William Blackstone in the 18th century as to Joel Prentiss Bishop, the dean of domestic relations specialists, a century later. Nor is such a topic broached in the editions of the notable 20th century family law treatise, the work of Prof. Homer H. Clark, Jr. Scholars from across these three centuries would have given amiable assent to Joel Bishop's baseline definition, that marriage involves "one man and one woman united in law for life" in a civil status whose source was "the law of nature." 1

But now marriage is an amoeba. It has become an institution whose very formlessness allows for special pleading on a rolling number of sides. As such, the American domestic union is both loudly derided and proudly defended by those who agree on little about the terms of engagement. Individuals continue to unite in couples, separate, only to re-emerge as partners in other couples. Which of these pairings are- or should be—deemed legal marriages? In making this determination, what is the proper role for the parties' freedom to contract the marriage of their choice? What remains of legislative efforts to conform marriage to its ideal in Nature? One of the many virtues of Nancy Cott's Public Vows: A History of Marriage and the Nation is her sure-handed grasp of the vigorous if tortuous relationship between formal law and informal marriage. She also recognizes that both the permanence of legal rules and the evanescence of informal unions have been exaggerated. The entropy of domestic fusions and fissions has rendered the process of ordering the nuclear family nearly impossible. Marriage has become, in short, function in search of form. This essay explores the tension between legislative prescription and contractual freedom in shaping the marital relationship in the 21st century.

Nuptial Agreements:
Contracts or Metaphor?

Historically, domestic relations settled at a far remove from the commercial ken of contract law. But the metaphor of contract infused the whole of the nation's jurisprudential thought from the beginning. Cott aptly suggests a connection between the "long train of abuses" warranting the international divorce espoused in the Declaration of Independence, and recognition that serous breach of the marital contract should merit a similar denouement to more intimate quarrels. 2 In its description of the political perfidy of George III, Thomas Jefferson's document adumbrated the norms of good transnational behavior. Cott similarly observes that the legal process of domestic divorce showcased, by implication, the content of a good marriage. "By declaring what behavior broke the bargain of marriage, states were reiterating what composed it." 3

States jealously guarded the power to define marriage. When Lillian Harmon and Edwin Walker decided to marry in Kansas in 1886, the couple tried to seize that delimiting prerogative for themselves. In the words of Moses Harmon, noted free love advocate and father of the would-be bride, marriage was "a strictly personal matter," and thus the couple and their supporters denied "the right of society, in the form of church and state, to regulate it or interfere with the individual man and woman in this relation." 4 The professing groom announced at the wedding that he "abdicate[d] in advance all the so-called 'marital rights' with which this public acknowledgment of our relationship may invest me." 5 In light of their outspoken refusal to observe the licensing and other regulatory requirements for a legal marriage, the putative spouses were arrested immediately following their cohabiting as husband and wife for one night. In upholding their convictions and accompanying jail sentences, the Kansas Supreme Court insisted upon the dual nature of marriage, requiring both the parties' free accord and the state's imprimatur. 6 The court made a point of emphasizing that the penalties imposed for violation of the marriage law were a...


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