Monday, December 13, 2004

Marriage Laws

I don't know that I've seen a good answer to the following question:
An interesting piece today looks at attempts in Massachussetts (and elsewhere) to remove old Puritan-era "blue laws" that are technically still on the books.

* * *

The second thing that made me pause was the mention of adultery as an example of an archaic crime. I'm not so sure. A good part of this has to do with the current debates about the place of marriage in society. In the same-sex marriage debate, one thing that most everyone takes for granted is that the marital contract is of crucial interest to the State -- so much so that many on the right want a Constitutional amendment to limit it to man and woman, that many on the left will try all sorts of legal legerdemain to force recognition of same-sex marriage even against the will of the majority, and many in the middle are thinking up laws to construct something like marriage but without the name. If this public institution (and its analogues) needs all that legal attention, then why shouldn't the State also penalize those parties who violate the terms of the contract? It seems to me that if the State can't survive without legislating and regulating marriage in the first place (and that remains to be demonstrated), then violation injures the State and so it's in the State's interest to enforce the terms of the marriage contract -- which means adultery laws. And, contrariwise, if the State shouldn't worry itself with whether the parties to a civilly-recognized marriage are in fact meeting the obligations that justify all the civil perks and recognition in the first place, then it seems to follow that the State's interest in marriage isn't as great as everyone is claiming.
Good question.

Stuart Buck

6 Comments:

Blogger Tim McNabb said...

In Missouri, we recently lost the last vestige of penalties for adultery in that an alienation of affection suit was tossed out by the Supreme Court as the court felt the law was unconstitutional.

There are penalties to adultery, though. It is inescapable that finanacial harm comes in a divorce to both parties.

Tim McNabb
fivehundredwords.com

10:31 AM  
Anonymous Anonymous said...

It's "Massachusetts", not "Massachussets".

5:20 PM  
Blogger Katie said...

Interesting argument, but it seems like this kind of legal asymmetry isn't uncommon--the government taxes cigarettes but doesn't reward non-smoking, the government gives college scholarships to good students but doesn't punish bad students, the government punishes kids who skip school but doesn't reward good attendance. Maybe scholarships are a good analogy for this marriage question...

The government has an interest in having educated citizens so it gives out scholarships. If those scholarship kids drop out of college, that injures the state--but the government doesn't make it illegal, it just takes away the scholarship. Similarly, the government doesn't make adultery illegal, but it does take away the benefits of marriage for divorced couples.

So the government's treatment of marriage probably isn't logically consistent, but it might be consistent with the way the government does other things...

Katie
http://aconstrainedvision.blogspot.com

6:52 PM  
Blogger P. G. said...

False premise...
"[O]ne thing that most everyone takes for granted is that the marital contract is of crucial interest to the State."

Not so. In fact, there are those, myself among them, who take quite the opposite position: that the state has no significant interest in regulating the choice of two people to enter into the marriage contract, except in the few limited instances where real harm could result from permitting a marriage, i.e. to a child.

After all, what state policy is affected? Lets assyme that the state has no legitimate interest in directly regulating the private sexual conduct of its members (and thus discouraging homosexuality). Lawrence v. Texas oughta stand for that. What state interest remains? Controlling who gets whatever miniscule tax advantages, spousal privileges, etc may come from marriage? That couldn't support a defense to an equal protection challenge.

I think it follows that the laws restricting marriage to heterosexual couples can't even survive rational basis scrutiny. But that's on the basis of the absence of a governmental interest, not the presence of one.

8:50 PM  
Anonymous Anonymous said...

Doesn't the law of contracts provide an easy answer for this? We would all admit that commercial contracts are essential to the structure of our economy; without them, the entire system would fall apart. Our legal system hasn't responded to the necessity of protecting contractual interests by imposing criminal--or even civil--sanctions on those who breach them. It recongnizes the concept of efficient breach, i.e., that sometimes it's better for both parties to go their own way, and the various forms of recovery available to the wronged party simply ensure that he's not left worse off than he would have been had the other party performed. This is presumably sufficient to maintain a healthy environment for entering commercial contracts.

The really difficult question is why, if the law still provides for tortious interference of contract actions, why have many states repealed their alienation of affection laws? That's a much closer analogy.

8:32 PM  
Blogger Stuart Buck said...

Exactly: I made the same point 1.5 years ago here.

11:15 PM  

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