Introduction

Summary

How should the civil state relate to marriage and divorce in modern society? Some, from both the left and right ends of the political spectrum, are calling for the state to extract itself from the marriage business. For many proponents of this position, this presumably would leave the label of “marriage” entirely to religious or other organizations, because the state would only handle legal benefits under some sort of civil registration regime. Others pronounce that the state should be ever more involved in regulating marriage, including extending it to same-sex couples. Still others contend that the state not only must remain involved in the regulation of marriage and divorce law but should adhere to a more traditional role concerning marriage and divorce. This is not merely a culture-wars skirmish about same-sex marriage, though, for there are serious questions about the role of the federal government versus state governments in marriage and divorce law; there is a greater diversity in various state marriage laws than has often been the case historically; there are heightened questions about the role of premarital agreements and the ability of autonomous parties to enter such agreements; and there is continued ambiguity about extraterritorial recognition of marriage and marriage-like relationships between states as a conflict-of-laws matter.

Why this fervent public discussion about marriage and the role of the civil state? There are a host of reasons, of course, not least of which are the many state benefits that flow from a legal marriage relationship. But even the word “marriage” itself is freighted with meaning – historically, religiously, culturally, and socially – and advocates on all sides remain eager for society and the law to embrace their preferred definition and understanding of marriage. The public discussion and disagreement about marriage also derive from the increasingly diverse and multicultural society in which we live. Even if there was a time historically when common understandings of marriage and divorce were shared in the United States, that time has passed.