Marriage And The State

Copyright Edwin J. Pole II, 2004

Back to Home Page.

Review of Marriage

Marriage suffers from a dichotomy, especially in the West, and, most especially, in the US. On the one hand marriage is a religious concern. It is defined and solemnized within the context of a religion. The rules and restrictions of marriage are encompassed within the strictures of the religion. The sixth commandment forbids adultery. The ninth forbids coveting another's wife although reading the text implies that the wife is property. A minister, priest, or rabbi solemnizes the marriage in a ceremony.

One the other hand, the state considers marriage to be a contractual relationship. The “Lectlaw” web site1 defines marriage as "a contract" between "a free man and a free woman". The definition includes restrictions of ability and freedom to contract. However, this is a definition under common rather than statutory law. The US Constitution does not mention marriage at all. US Code restricts the application of US law in some cases to those marriages between a man and a woman (Defense of Marriage Act)2.

At least 37 states have passed “Defense Of Marriage Acts” (DOMAs) limiting marriage to between those of opposite sexes3. The Massachusetts Supreme Court has declared that the state statute doing this violates the state constitution. San Francisco has begun issuing marriage licenses to same sex couples in violation of California state statute. Gay rights organizations support changes in laws to allow same-sex marriage and to extend family benefits to same-sex couples. Many corporations offer family benefits to same-sex, unmarried couples while denying these same benefits to opposite-sex couples.

All this has sparked an inflammatory debate between supporters of "traditional" marriage and those who desire change. This debate can be settled by understanding that there need not be a conflict between the religious and secular or state view of marriage. Following the traditional separation of church and state, sacramental or religious nature of marriage can be preserved and those in a religion may freely follow their own rules. The state can keep the definition of marriage as a contract and may perform its legitimate function of enforcing the contractual relationship. In fact, this could make traditional marriage stronger as the religious rules could be placed in the contract and then be legally enforced. This would, at the same time, preserve "traditional" marriage and allow newer, less traditional forms of marriage, or civil unions, to be tried in a stable, enforceable manner.

Forms of Marriage or Civil Unions

The traditional form of marriage between an individual man and woman has a long but not exclusive history in the Judeo-Christian religion. Polygamy was practiced by early Jews as well as by other societies throughout the world. Some societies also practice polyandry. In some cases, heritage is considered to derive through the mother rather than the father.

In the last half of the twentieth century, advances in birth control techniques, especially “the pill,” have caused substantial changes in the relationship of the sexes and sexual mores. Women no longer are required to suppress their sexual activity for fear of pregnancy. Even if they do become pregnant, the Supreme Court decision in Roe V Wade has made abortion commonly available, even late term. Pregnancies can be delayed and timed to accommodate the working ambitions of women even to the extent that it is no longer required that a woman have a husband for material support during and after pregnancy.

Other changes in labor laws establishing females as a protected class and requiring employers to answer in court to charges of sexual discrimination and harassment have eased the transition of women into the workplace. “No fault” laws and the swing to awarding child custody to mothers have made divorce much easier and less financially devastating to women. Changes in social mores have also removed much of the stigma of divorce. It is now expected that most marriages will fail.

The secularization of US society and the changes in social climate have made homosexuality, formerly strictly taboo and subject to criminal penalties, into an accepted lifestyle. The removal of legal restrictions has further been accompanied by laws against discrimination based on sexual preference. Gays are now not only accepted but viewed with sympathy and even admiration. They are also well on the way to being established as a protected class like women and minorities. This has resulted in the rise of long-term, same-sex relationships similar to marriages. Gays are now demanding that these relationships be given the same status and privileges as traditional marriages.

There is now, and has been, a small minority in the US that supports marriages involving more than two partners. While most of the support is for polygamy, polyandry is another option. Indeed, it is conceivable for these types of marriages to include multiple men and women in a group marriage. The spectacular advances in DNA analysis have even removed the uncertainty in paternity that could trouble some people.

Appropriate legislation at the state and federal level could provide a framework for establishing contractual relationships following any of these forms in a stable and enforceable manner. This could easily be done by treating marriage contracts in the same manner as any other. Standard contracts could be provided, particularly for relationships with only two partners. These contract conditions could be assumed unless the parties developed their own. There is some precedence for all of this in prenuptial agreements although the enforcement of these contracts would have to be strengthened and protected from arbitrary alteration by the state.

Many people would perceive these changes as being an attack on traditional marriage. It will be politically necessary for these people to realize that traditional marriage would be little affected. The major change would be that traditional marriage would lose its unique status with the state. Little else, if anything, would be lost to traditional marriage. The benefits of contractual enforcement would just be extended to other forms of marriage. Indeed, traditional marriage could be strengthened in that the state would no longer be able to arbitrarily set and change the conditions of the contract.

Marriage, Public and Private Benefits and Rights, Inheritance

Aside from emotional, religious issues, those of public and private benefits cause much of the objections to non-traditional marriage forms. The extension of these benefits to same-sex partners has caused much controversy and concern.

It is not clear how this would affect most public benefits presently in force except in the case of Social Security. The easiest solution would be to treat single, same-sex partners in the same manner as opposite-sex partners are presently treated. In the case of polygamous, polyandrous, and group marriages, it would probably be best to consider all the partners as a single person but this does not address such things as health benefits which are difficult to separate. The best option would be to include this as part of an overall reform of public benefits, especially Social Security, which would eliminate them as a public benefit and transform them to privately funded programs.

One issue of particular concern to many gays is the question of the right of a partner in the event of a medical emergency or procedure. Information about a partner, visitation rights, and the ability to authorize treatment for a partner have been denied causing substantial emotional distress and even delay in treatment. It is not clear how extending this ability to non-traditional partners in a voluntary relationship is a problem. Even today many states provide the capability for an individual to assign someone medical power of attorney. As long as the medical provider is protected from liability and the rights of partners are clearly defined in statute, there should be no objections.

Another issue in non-traditional marriages is the right of inheritance. Even under the law today inheritance is under the control of each individual. Everyone can write a will that makes anyone a beneficiary. The only time that the state gets involved is if someone dies intestate. It would be quite simple to make inheritance part of a marriage contract. It would then only be up to the state to enforce the contract properly.

Marriage and Children

The primary concern in this issue should be for the children involved. Children are innocent third parties who do not have a choice of whether or not to engage in this relationship. As has been said, “You cannot choose your parents.” The rights and responsibilities of both parents and children are well-established for traditional relationships by current law and practice. Indeed, the drastic rise in divorce and remarriage, even multiple times, gives us plenty of experience and precedent. The state would require that any contract include clauses dealing with child support and custody both during a relationship and if it is terminated.

Adoption is one of the more difficult issues in this area. If one of the individuals in the relationship is a parent of the child, adoption by the other individual would only enhance the state of the child. In this case the child would only gain. The child would have the added advantage of material and spiritual support from another adult. In this case, the adult could only be more committed than normally since this responsibility would be assumed voluntarily. The big problem would be the adoption of a child in which both (or all) of the adopters would not be biological parents. In this case, the state would have to decide what would be best for the child. It would have to be up to the courts and the legislatures to determine this. Fortunately there is substantial precedent already to aid us in this.


The solution to this extremely contentious issue, while not entirely without difficulties, is quite possible. There is plenty of legal precedent and principle to provide an equitable solution. The legitimate concerns of all parties involved can be addressed and the major concern, the children involved, can be protected. Arriving at a solution, however, will require compromise and the recognition by all parties that the others have legitimate concerns. The basis of the solution lies in the recognition of the legitimate role of the state, not to impose religious or moral principles on citizens, but to provide the framework within which citizens can develop their own solutions freely and with minimum interference. It is hard to understand the objections of the defenders of traditional marriage unless their position is based on religious morality which should be separate from considerations of law.

Marriage, as defined by the state, is a contractual relationship. It should be treated by the state in the same manner and with the same principles as other contractual relationships. The state is responsible for enforcing the contract and for protecting innocent third parties. It should be up to the individuals involved to decide the conditions of the contract based on their own moral choices. These choices should be free and should not be imposed by others through the force of the state.



MARRIAGE - A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.

Back to text.


United States Code




U.S. Code as of: 01/22/02

Section 7. Definition of "marriage" and "spouse"

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

Back to text.


Starting in 1995, bills to create "Defense of Marriage Acts" (DOMA) were written. Their intent would be to outlaw same-sex marriages and to refuse to recognize such marriages recognized in other states. Many have been passed and signed into law. An updated list is available. 1 As of 2000-MAR the following states have passed laws:

1995: One state: UT

1996: 15 additional states: AK, AZ, DE, GA, ID, IL, KS, MI, MO, NC, OK, PA, SC, SD, and TN. In two states (AL, MS) state governors adopted an executive order declaring same-sex marriages void.

1997: Six additional states: AR, FL, HI, IN, ME, MN, MS, ND, VA.

1998: Four additional states: AL, IA, KY, WA. AK voters modified the state constitution to specifically discriminate against gays and lesbians. HI voters modified their state constitution to allow their legislature to discriminate against gays and lesbians.

1999: One additional state: LA

2000: California Proposition 22 to restrict marriage to heterosexuals was passed by the voters on 2000-MAR-7.

Back to text.

Back to Home Page.