Marriage Quality

Forty years ago citizens of California told the state to get out of marriage. Judges and lawyers turned a blind eye as droves of otherwise-enemies colluded to concoct evidence of marital misconduct to secure the divorces they wanted. The state could protect their children and divide their property, but tell them whether or not they could separate? No way. This was a private matter. Members of the legal profession, concerned about faith in the system, led reform efforts. In 1969, the first no-fault divorce law was introduced. By the mid-1980s, most states had followed suit.

The remarkable ease with which this dramatic change took effect reflects an unusual convergence of public opinion and political principle. Growing numbers of citizens simply believed government had no business in the cultural, emotional, and religious side of marriage. Legal advocates had an easy time making the case, I propose, because the logic fit comfortably with the liberal traditions that animate our constitutional democracy.

Today, the citizens of California again lead the charge for change in marriage law. This time, however, combatants have had a harder time settling on strategies: marriage is a fundamental right; no, it's a unique civil institution; it's about family, reproduction, heterosexuality, no, citizenship; it's a matter of justice, stability, our future on the planet; a matter of equal protection; no, due process. In its latest iteration: its democracy versus liberty.

There's a good reason both sides are having a harder time: they share the crucial but deeply problematic assumption that the state should, even must be in the business of defining, conferring, and regulating marriage. As the earlier generation of Californians sensed, this arrangement -- the establishment of marriage -- conflicts with our basic liberal democratic commitments to and strategies for securing liberty, equality, and stability in our deeply diverse society.

Or so, as a political theorist, I argue in Untying the Knot.