Disputes about the substance of marriage have obscured questions about the statutes governing marriage procedure. The states license marriages under statutes that assumed fairly standard forms during the twentieth century.
Banns developed in England to prevent clandestine marriages which undercut parents' and communities' ability to stop objectionable marriages. Licensing emerged in the U.S. as an improvised replacement, given the lack of a state church to supervise a regime of banns. Couples have, nonetheless, for generations defeated efforts to stop them from using state law to formalize their relationship.
In his memoir of growing up in Wharton, Texas, the late playwright Horton Foote recounts the story of his parents' marriage against firm parental disapproval by his mother’s parents. Albert Horton Foote and Harriet Gautier Brooks sneaked over to a nearby Texas town called El Campo, got a license, and came back to Wharton, where a minister married them in a house six blocks from Harriet’s parents' house. They set up housekeeping in Wharton and were snubbed by her parents until the day her mother called and said, "I thought I'd come over to see you this afternoon if you're going to be home." Her mother had yielded to the hardy practice of couple autonomy.
Horton Foote's parents were tame compared with the couples who went to "Gretna Greens," or to Las Vegas, to marry despite reasons (often, the age of a girl) for someone to intervene and stop them. The record of marriage is clear about one point. Marriage licensing simply does not support goals of marriage regulation and preservation of tradition. It never has, not in Las Vegas in the 1960s, not in Horton Foote's Texas, and not today.
What does licensing do? Very little. It asserts no control over the decision-making by couples. It generally does not impose health checks on the parties. It doesn't force disclosure by one person to the other. Waiting periods are almost all gone. Historically, licensing has served as a means to support anti-miscegenation laws and forms of religious discrimination. It's hard to view marriage licensing as useful, except insofar as it serves the purpose of formality, open consent to marriage, ceremonial affirmations celebrated by a community, and clear records.
At its best, licensing is about the state's serving as a facilitator of the creation and recognition of a legal status. In that way, the state is doing something similar to what it does when it facilitates the formation of other legal relationships, such as the corporation or binding agreements, all subject to autonomous party choices for their creation. Indeed, the Massachusetts marriage statute avoids the term, "license." Massachusetts’s statutory usage recognizes the parties’ control over the marriage and the role of the state as a facilitator, recorder, and source of publicity.
Despite the similarity of the state role in marriage formation to its role in facilitating other legal relations, the states have been timid and unimaginative about creating innovations in marriage procedure. Marriage statutes contain odd rigidities, little regulatory clout, and a continuing insistence that couples use the marriage license within the state that issues it. Licensing sounds like something that protects a tradition, even as its main use has been to exclude some pairings, create needless complications for couples who are physically separated, and defeat couples' occasional preferences about ceremonial details.
Adam Candeub and I have posted a paper exploring the possibility of bringing a new energy to the states' facilitative role in marriage solemnization. For shorthand, we've labeled the idea e-marriage. We suggest that, with careful study and deliberation, states could enhance their facilitative and record-keeping role by modernizing the statutes governing marriage ceremonies. For marriages of same-sex couples, states that authorize the marriages could take the next step in the logic of federalism by allowing couples in distant states to use their marriage-authorization laws.
For controversial marriages, states that do not recognize them would still be able to refuse recognition. But the couples could engage in an expressive activity, with legal meaning in many jurisdictions, in their own community. Couples already travel to marry in places like Massachusetts, returning to reside in states that refuse their marriage recognition, so such couples clearly value an official legal blessing provided by another jurisdiction.
We have tentatively planned a conference on November 12, 2010, in East Lansing, to explore the many ramifications of our idea. We will have legal scholars, legislators, economists, and English professors gather for a stimulating discussion of the possibilities for innovation in the regime governing marriage formation. We'd welcome suggestions for types of relevant commentary and for specific names of persons from business schools with expertise in evaluating proposed business models, experts in e-government and government record-keeping and statistics generation, and any other source of insight about the notion of improving current marriage formation procedure.
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