Same-sex marriage and the right of privacy.

AuthorHohengarten, William M.

In 1970 Richard Baker and James McConnell applied for a marriage license in Hennepin County, Minnesota. When the county clerk denied their application because they were both men, the couple went to court. But the trial court upheld the clerk's action, and the state supreme court affirmed.(1) The Minnesota court ruled that same-sex couples have no legal right to marry because marriage is and always has been an inherently heterosexual institution, "a union of man and woman, uniquely involving the procreation and rearing of children."(2) Other courts have agreed: Same-sex couples are excluded from marriage by the nature of marriage itself When two Kentucky women claimed a constitutional right to marry, for example, the state's highest court rejected their suit with the observation: "It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk of Jefferson County to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined."(3)

This Note argues that these courts are wrong: The constitutional right of privacy requires states to sanction and recognize same-sex marriages.(4) There is nothing intrinsic to the legal institution of marriage that excludes same-sex couples from it. Viewed functionally, legal marriage is essentially a binding commitment uniting two intimately related adults, a commitment which sustains the relationship between such adults by structuring their dealings with each other and with third parties. Conceived in this way, marriage is indifferent to the relative genders of its occupants. And because marriage is not intrinsically closed to same-sex couples, the fundamental right to marry--which is a core element of the constitutional right of privacy--also extends to such couples.(5)

The right to marry is not entirely unproblematic. It differs from other rights protected under the rubric of "privacy," such as procreation, abortion, or child rearing, because marriage is not something that exists apart from the law or the state. Marriage is a legal relationship, entered into through a legal framework, and enforceable according to legal rules. Law stands at its very core. Due to this inherent "legalness" of marriage, the constitutional right to marry cannot be secured simply by removing legal barriers to something that exists outside of the law. Rather, the law itself must create the "thing" to which one has a right. As a result, the right to marry necessarily imposes an affirmative obligation on the state to establish this legal framework.

The legalness of marriage also gives rise to the definitional difficulties that surfaced when Richard Baker and James McConnell first sought a marriage license in Minnesota. The disagreement between the couple and the state about whether the fundamental right to marry extends to same-sex couples reflected a more profound disagreement about what marriage is. Resolving this deeper disagreement poses special difficulties. Since marriage is a legal relationship, its definition cannot be derived from something that exists outside of the law. At the same time, existing legal definitions of marriage cannot be accepted as self-validating, as a positivistic view of law might otherwise suggest, because the fundamental right to marry prohibits states from defining marriage in ways that unduly exclude some couples from it.(6) On the surface, then, it appears that neither the law nor anything outside the law can provide a dispositive definition of marriage.

This Note attempts to dissolve this dilemma by taking a holistic approach to the law governing marriage. Such an approach does not look outside the law for a definition of marriage, but it also does not accept specific legal exclusions from marriage at face value. Rather, it tests specific exclusions by asking whether they are connected to the functions of marriage as these are reflected in the law as a whole.(7) This Note develops its understanding of marriage by moving between analyses of the state law of domestic relations and analyses of the constitutional law of privacy. The primary objective is to derive an interpretation of legal marriage against which the exclusion of same-sex couples can be tested. A secondary goal is to use the resulting understanding of marriage to illuminate the constitutional right of privacy, and thus to clarify how marriage furthers the liberty interests of the couple by imposing an affirmative obligation on the state.(8)

The argument proceeds in four stages. Part I develops a provisional definition of legal marriage by inquiring into the functions it uniquely serves. From this functional perspective, marriage appears simply as a legal framework for a committed relationship between two adults, without regard to their genders. Part 11 examines the case law surrounding the constitutional right to marry and presents the courts' alternative interpretation of marriage, which centers on procreation and is thought inherently to exclude same-sex couples. Part Ill criticizes this procreative interpretation of marriage as unsupported by state domestic relations law. Finally, Part IV argues that linking the right to marry with procreation is also inconsistent with the broader constitutional right of privacy. There is therefore no basis for limiting the fundamental right to marry to opposite-sex couples.

  1. Why Marriage? The Function of a Legal Status

    One way to approach the problem of defining legal marriage is to ask what functions it serves that other legal institutions do not. This Part pursues this inquiry by focusing on what same-sex couples would gain if their right to marry were legally recognized. The answer that emerges is that marriage provides a legal framework for a committed relationship between two adults, a framework that cannot be duplicated by other legal forms.(9)

    Discussions of same-sex marriage frequently focus on the issue of "benefits," that is, on the pecuniary advantages that third parties sometimes bestow on married couples.(10) Logically, however, an analysis of marriage should begin by examining the legal relationship that unites the two individuals who marry one another, not their relationships with third parties. When two individuals marry, they enter into a legally binding relationship with each other. This relationship is binding because the state imposes significant conditions on exiting it; a spouse cannot simply walk away from marriage.(11) Marriage thus offers a legal medium through which two adults can make a mutual commitment to stay together. This mutual commitment functions as a relatively stable basis upon which they can structure aspects of their life together and their joint interactions with third parties. In short, marriage allows a couple to overcome the deep-seated individualism of contemporary life and to operate, for many purposes, as a unit.(12)

    On this reading, marriage is an enabling constraint which resembles contract. Like contract, marriage can only be entered by the mutual consent of the parties. Yet marriage has usually been treated as a status, not a contract, because its terms have traditionally been set by the state and have not been renegotiable by the parties.(13) Although in recent years contract has come to provide a significant alternative to marital status for governing the reciprocal economic relations of couples, marriage remains a status-based relation inasmuch as the state continues to regulate the conditions under which a couple may terminate its relationship. It is in this latter respect that the status of marriage provides a unique legal resource for structuring intimate relationships, a resource whose function cannot be duplicated by other legal media.

    Until recently, marital property rights were defined exclusively by the state. Married couples could not use prenuptial agreements to negotiate their mutual property rights in case of divorce, because such agreements were generally held void as collusive attempts to obtain a divorce.(14) Similarly, unmarried couples could not use contract to mimic the state's marital property regime, because such contracts were held to be based upon "meretricious" sexual consideration and thus also void.(15) In short, married couples were not free to opt out of the state's marital property regime, and unmarried couples were not free to opt into it. Since the 1970's, however, this bifurcated system has lost much of its rigidity because contract has largely supplanted status as a legal basis for the regulation of the mutual property rights of couples. Prenuptial agreements are now typically upheld when they regulate the property settlement for a divorce prosecuted upon legally recognized grounds.(16) Contracts governing property relations between unmarried cohabitants are also generally upheld if they are not expressly founded on the consideration of meretricious services.(17) Thus, most states now set mere default rules governing the mutual property rights of both married and unmarried couples.(18) This trend has reduced the differences between married and unmarried couples with regard to their mutual property rights, since couples in either category may usually rearrange these rights by mutual consent. As a result, contract now provides a functional alternative to marriage as a medium for regulating the economic aspect of a couple's relationship.

    The same cannot be said of the conditions under which a couple may legally terminate its relationship. While prenuptial agreements and cohabitation contracts can alter the default rules governing the distribution of property upon dissolution of a relationship, they cannot alter the conditions under which such dissolution may take place. As before, prenuptial contracts are void if they represent a collusive effort to procure a divorce when legally recognized grounds are lacking.(19) The parties to a marriage may not lower...

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