Untying the Knot
THE SOURCE: "A Right to Marry?" by Martha C. Nussbaum, in California Law Review, June 2010.
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," Nnssbaum says. It does nothing to investigate whether the couple deserves this privileged status. …