What is marriage?
November 1, 2004
Martha ErtmanProfessor, College of LawGuest Columnist
Marriage isn’t what it used to be. Specifically, the law used to regulate marriage as a status, and now treats it more like a contract.
Status is static-it comes with birth and cannot be changed. Contract, in contrast, allows people to make choices about their lives.
But status is hardly dead.
Amendment 3, on the ballot Nov. 2, would resurrect status-based definitions of marriage and limit people’s rights to use contracts to order their personal lives as they see fit.
If the state is the one best suited to dictating the terms of your personal life, then this reversion makes sense. But if the state functions best when it allows a range of possible living arrangements rather than imposing one status-based family form that excludes many people, Amendment 3 is a throwback.
We’ve come a long way since status was everything. In the Middle Ages, your life status was determined by birth.
If you were an older son, you inherited property. If you were younger, you went into the military or the clergy.
Similarly, in the United States the law has regulated people based on their race and sex. Until the mid-1800s, slaves were saddled with a status that prevented them from marrying, voting and owning their own labor. When slavery ended, the legal status of married women also changed.
This change altered a system called coverture.
Under coverture, husband and wife were one person and that person was the husband. The wife had no independent legal identity and came under her husband’s legal protection and control.
In practical terms, this meant that in exchange for supporting her, he could beat her (known as “the right of chastisement”) and even rape her. It also meant she couldn’t own property or sign a contract.
States changed the rules of coverture by passing Married Women’s Property Acts, which gave married women the right to enter contracts and own property in their own right.
Nevertheless, remnants of coverture remained. Battered wives did not obtain meaningful legal protection until the 1970s, the same time the law recognized it as a crime when husbands force their wives to have sex.
All of these developments are consistent with the famous observation by Sir Henry Maine in 1864 that progressive societies move from status to contract.
While your status at birth still matters for some legal rules, contract has been on the rise for the last century and a half.
Metaphorically, we understand contract with the image of a handshake. Handshakes are horizontal affairs where parties meet as equals to seal a deal that benefits both of them.
In contrast to coverture’s one-size-fits-all view of marriage (or perhaps one-size-fits-none), contract is all about choice. One choice is to cohabit, another is to marry and yet another is to remarry while still entwined with your ex through raising children.
Most states-including Utah-recognize a range of relationships. These relationships go by different names in different places, such as common law marriage, covenant marriage, de facto marriage, marriage by estoppel, civil unions, cohabiting relationships, or reciprocal beneficiary relationships-all of which are consistent with the general trend in law away from status and toward contract.
The alternative, represented by Amendment 3 and its equivalent in other states, forces law and culture back toward a status-based understanding of relationships that is simply inconsistent with the way we live our lives.
