THE INTEGRITY OF MARRIAGE.

• Author: Matsumura, Kaiponanea T.

TABLE OF CONTENTS

INTRODUCTION 456 I. CONSTITUTING MARRIAGE 465 II. INTEGRITY OF LAWS AND NORMS 472 A. The Relationship Between Laws and Norms 474 B. Mechanisms of Legal Integration and Disintegration 479 III. INTEGRITY ACROSS JURISDICTIONS 484 A. Sources of Marriage Law 485 B. Jurisdictional Disintegration 488 1. Federal and State 488 2. Between States 490 IV. EVALUATING INTEGRATION 494 A. Marriage and Parenthood 494 1. Consistency and Related Values 495 2. Information and Expectations 497 B. Costs of Integration 505 V. INSIGHTS FROM INTEGRATION 507 A. Marriage and Parenthood 507 B. Relationship Pluralism 512 CONCLUSION 518 INTRODUCTION

In addition to castigating the Court's central holding that the Fourteenth Amendment requires states to allow same-sex couples to marry, the dissenters in Obergefell v. Hodges unleashed a surprising broadside on the bundle of state and federal laws that constitute the positive law of marriage. (1) Consider the following statement by Justice Scalia: "The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences.... Those civil consequences... can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws." (2) Or this statement by Justice Thomas:

To the extent that the Framers would have recognized a natural right to marriage that fell within the broader definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to... mak[e] vows, hold[ ] religious ceremonies celebrating those vows, rais[e] children, and otherwise enjoy[ ] the society of one's spouse--without governmental interference. (3) To these Justices, the positive law of marriage could be anything or nothing at all.

These statements challenge the assumption that marriage should be what Justice Kennedy's majority opinion in Obergefell called a "unified whole," the inchoate notion that marriage should naturally encompass a core set of rights and duties--both "symbolic" and "material"--related to "establishing] a home and bringing] up children." (4) Under Justice Kennedy's view, the positive law sets marriage apart as "a two-person union unlike any other in its importance to the committed individuals," (5) providing "permanency and stability" to the marital family, (6) and enabling family members "to understand the integrity and closeness of their own family and its concord with other families." (7) In Justice Kennedy's telling, changes to the positive law of marriage have only served to move marriage closer to its platonic ideal. (8)

This debate between the Obergefell Justices over whether marriage has a necessary or ideal legal content is actively playing out in state courts. For example, recent decisions have challenged the connection between marriage and parentage. States have traditionally assigned parental rights to husbands because of the marital relationship. (9) In Michael H. v. Gerald D., the Supreme Court upheld a presumption of paternity statute over a challenge by a man with a 98 percent probability of being the child's biological father. (10) The Court noted that "given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and... the integrity of the family should not be impugned." (11) In a conflict between biology and marriage, "our traditions have protected the marital family." (12) The Arkansas Supreme Court recently took a different approach, upholding the state's refusal to name married, female, nonbirth mothers as a legal parents on their children's birth certificates. (11) The court held that the marital presumption statute was not actually about "the marital relationship of husband and wife," but rather "the relationship of the biological mother and the biological father to the child." (14) The court accepted the State's argument that the "overarching purpose" of the statutory presumption was to maintain accurate records of "vital events for purposes of public health research and identification of public health trends," not the preservation of the marital family. (15) In a similar dispute, an Arizona appellate court was even more direct. (16) The court dismissed the argument that the purpose of Arizona's statute was to extend parenthood to children born to married spouses, contending instead that "the purpose of the presumption statute is to assist in determining whether a man is a child's biological father." (17) In a sweeping statement, the court declared that "with the exception of adoption,... parentage in Arizona is determined by biology." (18) Under this reasoning, a birth mother's husband would necessarily have an inferior claim to an anonymous sperm donor. (19)

Both the Arkansas and Arizona decisions were reversed by higher courts. (20) But these courts are not alone in questioning the relationship between marriage and other rights traditionally associated with that institution. (21) For example, the Texas Supreme Court has greenlighted a lawsuit challenging Houston's provision of health insurance to married same-sex couples, refusing to hold that the right to marry requires the State to "provide the same publicly funded benefits [such as health care] to all married persons." (22) And various state legislatures have considered bills attempting to take states out of the marriage business altogether. (23)

These recent developments may be nothing more than new attempts to discriminate against same-sex couples. (24) To be sure, leading up to Obergefell, some state courts were transparently motivated by political opposition to same-sex marriage. (25) And scholars have documented the presence of anti-gay animus in arguments by same-sex marriage opponents. (26) Indeed, Justice Scalia's claim that "it is not of special importance to me what the law says about marriage" (27) beggars belief given that he devoted a page in his Lawrence v. Texas dissent to the "fear" that striking down bans on homosexual sodomy would lead to same-sex marriage and the "hope" that it would not. (28)

But whether these developments are mere pretext for discrimination, they raise a deeper question concerning the legal incidents that should comprise the positive law of marriage. One might attempt to answer that question in several different ways. So, for example, scholars have asked whether the Constitution requires the states to provide a core set of marital rights. Some have taken a historical approach to that question, looking to the rights that constituted the positive law of marriage at the time of the nation's founding. (29) Others have made normative constitutional arguments based on philosophical commitments (30) or positivist accounts. (31) And going beyond questions about marriage law's constitutional floor, innumerable scholars have critiqued various aspects of marriage law for being inefficient, incoherent, discriminatory, or otherwise problematic.

I respond to the question from a different angle. Starting from the premise that marriage law consists of a bundle of legal incidents, the contents of which have continuously changed over time, I ask what the process of combining or breaking apart reveals about what should go in that bundle. Numerous courts have used concepts such as integrity and unity to describe marriage, (32) assuming that various legal incidents belong together. (33) Although marital integrity, to this point, has been mostly an empty vessel, the concept of integrity--the "state of being complete or undivided" (34)--is a useful framework through which to evaluate changes to marriage laws.

The meaning of integration becomes clear when analyzing the mechanisms by which the positive law of marriage disintegrates. (35) Marriage can integrate or disintegrate along two dimensions. The first involves marriage's rights and duties. Borrowing from Thomas Grey's suggestion that legal categories disintegrate when their conceptual, legal, and popular meanings diverge, (36) marriage becomes more integrated when legal rights and social norms work together to promote marriage's functions. It disintegrates when marriage laws undermine each other or the social norms on which they depend. (37) The second dimension concerns the sources of marriage law, namely the states and federal government. (38) Marriage law becomes more integrated when the package of rights is consistent across jurisdictions. (39) It disintegrates when different definitions and rules interfere with its singular meaning. (40) Inconsistencies between state and federal definitions of marriage can result in people being simultaneously married and unmarried, interfering with the experience of marriage as an "integrated whole." (41) Perfectly integrated--complete and undivided--marriage would coherently implement a set of agreed upon functions uniformly across jurisdictions.

This framework provides the vocabulary to assess changes to marriage laws--such as disaggregating marriage from parentage or employment benefits. Although scholars have offered piecemeal justifications for linking marriage to rights such as parenthood (42) or delinking it from rights such as immigration benefits or federal tax consequences, (43) few have analyzed how those proposals would impact marriage law more broadly. (44) Moreover, although scholars have studied the inconsistencies between state and federal definitions of marriage, (45) they have not analyzed the relationship between those differences and the optimal bundling of marriage laws.

Part I of this Article uses the disagreement between the Obergefell Justices over the inherent legal content of marriage to highlight deep uncertainties about the very relationship between law and marriage. It shows that scholars have attempted to answer questions about the nature of marriage through two binaries--status versus contract and positive rights versus...