Untying the Knot

What role should the state play in marriage? The answer depends on what you think marriage is. According to University of Chicago law professor Martha C. Nussbaum, marriage is an institution with three distinct aspects—religious, civil, and expressive—and the state currently has a hand in all of them. Especially in light of today’s disputes over gay marriage, she suggests that the state’s presence ought to be more limited.

The state’s role in the religious aspect of marriage is pretty straightforward. Lots of people want to have their weddings take place within a spiritual tradition, and the state endows religious figures with legal authority to perform these ceremonies.

What Nussbaum sees as the civil function of marriage is also cut-and-dried. Wedded couples get tax breaks, insurance benefits, and inheritance rights. They receive preference in adoption and custody decisions. The list of government benefits is long and well known.

It’s when it comes to marriage’s expressive aspect that the appropriate role of the state gets murky. When a couple gets married, they express their love and commitment to each other, and “society, in response, recognizes and dignifies that commitment.” (This unique status in society is one reason why many same-sex couples consider civil union a half-measure and insist on full marital rights.) But there is “something odd about the mixture of casualness and solemnity with which the state behaves as a marrying agent,” Nussbaum says. It does nothing to investigate whether the couple deserves this privileged status. The wedding of drunken strangers in Las Vegas enjoys the same status as the union of a genuinely devoted pair.

Nussbaum writes that it would be “a lot better, as a matter of both political theory and public policy, if the state withdrew from the marrying business.” She proposes that states perform civil unions and allow weddings’ expressive aspects to be handled by religious or other groups.

Whatever a state provides in terms of a marriage-type union, it must make open to all, Nussbaum says. The Supreme Court called marriage “one of the basic civil rights of man” in 1967 when it struck down a statute barring interracial marriage in Loving v. Virginia. The Court has also upheld the right of state prisoners and parents who have fallen behind on child support payments to tie the knot. Even people in polygamous and incestuous relationships have the right to marry, Nussbaum says, though the state’s interest in promoting gender equality and preventing child abuse allows it to forbid them from exercising that right.

Nussbaum goes to great lengths to show how the controversial unions of one minority—gays and lesbians—do not constitute such a threat. Even so, she does not think the time is right for the Supreme Court to extend marriage to homosexuals. Such a step would “further politicize the Court and further polarize public opinion.” Better to let the states experiment, allowing the public to see that gay marriage is not a threat to children or to the institution itself.

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The Source: "A Right to Marry?" by Martha C. Nussbaum, in California Law Review, June 2010.   

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