Symposium Feedback Page (Fall 2010)

The Michigan State Law Review wants to encourage readers, students, scholars, and the like  to communicate and provide comments on our recent symposium: E-Marriage.  The goal is to continue the scholarly conversation from our November 11-12, 2010 symposium, and to encourage interested parties to become involved in the dialogue.  To facilitate this, the Law Review has added a new feature where comments can be posted under the abstracts of each of the author's papers.

Proxy Marriage as Proxy for Fraud: Some Historical Observations on Status, Benefits and Recognition (Kerry Abrams)

The proposal to adopt “e-marriage” is a new instantiation of a technique that was used by immigrants in the early twentieth century, especially those from Southern Europe and Japan. Marrying by proxy allowed immigrants who were too poor to return to their countries of origin, or who worried they would be excluded if they left the country and attempted to return, to marry someone of their cultural background. (Often, because of anti-miscegenation laws, this was the only way they could marry.) Women who would have otherwise been excludable, generally because of illiteracy or poverty, or subject to quotas, and therefore subject to long waits in detention facilities or on board ships, were therefore able to obtain the status of “wife” and enter immediately and legally.

The practice of proxy marriage, however, provoked substantial controversy.  Two concerns dominated the discourse:  (1) that the marriages were fraudulent, either because the wives were really inadmissible “laborers” using marriage as a cover for gaining access to American labor markets or because the marriages were “fake” marriages to friends or relatives and (2) lack of consent.  The second concern was arguably a cover for the first; the moral objection that women could not consent to marry men they had never met gained force only when racially-charged concerns about labor competition or the ability of certain ethnic groups to assimilate existed. 

Congress ultimately abolished proxy marriage as a means of immigration in 1924 when it instituted the National Origins Act (and this law remains in force today).  This article uses the story of the rise and abolition of proxy marriage for immigration purposes to make some observations about the “e-marriage” proposal.  First, the desire to marry, and to use proxy marriage to do so, has generally not been animated by the desire to obtain social status.  While public recognition of a relationship may be important to many people, marriage also results in the potential for substantial government benefits, and any proposal to enable people to marry must seriously consider whether the form of marriage offered gives spouses the benefits they seek.  Second, proxy marriage has historically been useful when particular groups of people seek to obtain recognition despite legal obstacles.  Recognition problems will always exist where proxy marriage is essentially an attempt to do an end-run around a substantive marriage restriction or a restriction on the recognition of marriage for a particular purpose. 

Toward More Parsimony and Transparency in "the Essentials of Marriage" (Anita Bernstein)

Observers of contemporary American family law might have supposed that "the essentials of marriage"--a judge-made doctrinal category referring to constraints that individuals in a marriage may not modify by agreement--were headed for oblivion. The rise of Contract over Status (to use the famed diction of Henry Sumner Maine, who wrote about the law of marriage in 1864) moves in opposition to this common law power, as do legislation and other codifications concerning marriage, most of which limit judicial prerogatives.

Although the essentials of marriage have indeed dwindled, this Article argues that they remain more robust than is generally believed. Marital status continues to override marital agreements, and relatively recent legislation brings new impediments to intraspousal freedom of contract: Codifying a non-negotiable gender binary, the 1996 Defense of Marriage Act inserted the essentials of marriage into federal legislation, and counterparts to DOMA add this "essential" to state law. The rule that marrying couples may not choose to bind themselves according to the laws of a state in which they are not geographically present--an opportunity taken for granted in business dealings--is yet another of this ilk.

Because government-enforced restraints on liberty require justification and should be kept to a minimum, these so-called essentials should be curbed. Critical study of "the essentials of marriage" joins a larger discussion about freedom that this Symposium has broached. In advocating more parsimony and transparency about the essentials of marriage, this Article seeks to lessen harm.

The Expressive Value of E-Marriage (Jennifer Gerarda Brown)

Abstract
Adam Candeub and Mae Kuykendall argue that "marriage is best described as a hybrid of enabling regulation to create a legal relationship and status-a status that carries value in and of itself." (21) I agree with this description of marriage. I also have two concerns about it:

• I worry that for same-sex couples, the "enabling regulation" that e-marriage offers would be either

1. of little marginal benefit above what they could gain through cohabitation contracting; and/or
2. replete with signals that may make it difficult for some couples to access the additional regulatory "benefits" (credit checks and the like) that e-marriage offers.

• I also worry that the status value of e-marriage is so diluted that it will not confer many of the traditional benefits of marriage, since, as Candeub and Kuykendall themselves so eloquently state, "The status value of marriage is in some way a function of the size, depth, and closeness (whether spatial or cultural) of the community that recognizes it. Presumably, the more people and jurisdictions that recognize a marriage, the more valuable it is." (28)

My worry about the regulatory function of e-marriage is primarily a question of family and contract law, and relates to the enforceability of prenuptial agreements as well as the recognition of marital unions as contract, even in states that do not recognize the unions as marriages. Although I may include some discussion of these issues in my written submission to the symposium related to this conference, and I look forward to hearing others' thoughts while we are together at the law school in November, these topics will not be the focus of my remarks at the conference.

Instead, I plan to explore the second concern as it relates not only to the recognition of e-marriages in couples' home states, but also to the expressive nature of marriage decisions more generally - particularly the potential e-marriage holds to enrich the array of expressive choices for same-sex and different-sex couples alike. Fifteen years ago I argued that states had economic incentives to compete for the wedding and tourism revenue that could flow when couples traveled to a first mover state to wed. Ian Ayres and I saw this expressive potential with respect to couples who travel to enter a state's borders in order to endorse a state's policy of marriage equality and eschew their home state's discriminatory policy. But Ian and I saw this expressive value as being at least partially tied to concrete benefits conferred on a state as a reward for its marriage policy. The question is whether the expressive value of such decisions stands without physical presence in, and significant economic transfer to, the celebrating state. Our models of competitive federalism in marriage regulation have heretofore assumed that in order to gain access to or reward a nondiscriminating state, couples would be willing to absorb additional costs - but we have imagined those costs to be associated with the couples' weddings - banquet halls, music, food, flowers, honeymoon accommodations, and the like. What happens when the wedding is assumed to be back home, or in a third location, but in any event not in the celebrating state? E-marriage might become so valuable that couples would be willing to make direct cash payments to the celebrating state in exchange for it. This would bypass the travel and wedding-related intermediaries that generate business and consequent tax revenue for the celebrating states under current regimes. How does this change the expressive quality of the couples' choices about "where" to get married?

I am mindful that even to pose such a question may expose me for the hopelessly 20th Century old fogey that I am. To my teen-aged children, and indeed, to the 20-and-30 somethings who are coming of marriageable age as we discuss these matters, on-line existence may be their primary, if not exclusive, mode of self-expression. In such a world, what could be more "real" than e-marriage?

Marriage As a State of Mind: The City as a Locus of Law and Ritual (June Carbone)

Family law involves two complementary components: the articulation of values that shape community understandings and norms and the determination of the legal rules governing marriage, divorce, parenthood, support and property. The latter involves issues of enormous practical significance; uncertainty about one's family status or financial resources can impose enormous individual pain. The former, however, often attracts disproportionate attention as different groups fight to impose their particular vision of the collective good on the community.

From the time of the country's founding, the United States has dealt with the tension between the two by assigning responsibility for family law to the states. The result involves a compromise. On the one hand, the states are sufficiently different from each other to permit recognition of cultural differences, whether defined by the different settlers in colonial New England versus the plantation South or today's differences between the independent West, the wealthy mid-Atlantic states, or the evangelical heartland. On the other, the states are sufficiently well established as political and legal entities to confer some certainly for family status; mobility across state lines is less common than moves from the suburbs to the cities and back again. The Constitution accordingly entrusts the states with the responsibility to address family law and the discretion to delegate selective parts of that responsibility to smaller local units.

The precise meaning of this family law federalism, however, is open for renegotiation. Brian Bix, for example, has suggested that state responsibility for family law is an accident, and many of the same factors that compel state versus federal responsibility also support deference to municipal versus state norms. Marc Poirier, however, agrees with Justice Antonin Scalia that today's disputes are in fact a "Kulturkampf," in which the warriors invoke universal norms (human rights v. naturally or divinely ordained institutions) and care more about establishing the dominant discourse than about the immediate consequences of partnership or parenthood rules.
This article will argue that the tensions among national, state and local governance does not lend itself to a one size fits all response. Instead, it requires juggling the need for values expression, which will inevitably differ if only in emphasis from one region to another, and the need to keep the pathways of transformation open. Values expression seeks to promote shared values; it should therefore be decentralized in the absence of a larger consensus. The pathways that lead to transformation, however, may depend on the issue. In the sixties and seventies, access to the pill remade the lives of American women, especially those able to attend college. Legal changes that lowered the age of consent to 18, made access to contraception a constitutional right and supplied federal funding for contraceptive services contributed to the national transformation. Today, the issue of same-sex marriage may benefit from a different approach. Gay and lesbians couples are increasingly finding ways of being together whether or not the law recognizes their relationships. The issue is visibility - the most critical avenue of transformation involves recognition that our parents, brother, nieces, friends and colleagues may prefer same-sex partners.

The article will consider the role of municipalities in the transformation of cultural attitudes toward marriage. Urban dwellers tend to be younger, better education, more diverse, and more open to change than those who live elsewhere. If cities are both better suited and more inclined to lead in the transformation of cultural attitudes, what balance should be struck between insistence on uniform state family law rules and the opportunities for local expression of values that may differ from state imposed norms? The article will conclude that the answer requires drawing a distinction between expression and coercion, and between dynamic and static notions of the law.

Breaching a Marriage Contract (Joel A. Nichols)

Couples entering into a marriage are often said to be entering a contract, albeit one that the civil state more closely circumscribes. But the metaphor of the contractual elements of marriage is misleading - at least insofar as we think of couples "breaching" a marriage contract and receiving remedies for that breach. When a couple enters a civil marriage contract, the state is free to change the terms of that contract mid-stream (say, from fault-bases for divorce to no-fault bases); and the state does not permit couples to self-regulate their own legally-enforceable terms of a marriage contract. Moreover, the remedies for an aggrieved party when their spouse breaches a marriage contract look quite different than normal contract remedies. This essay explores the intersection between breach and remedy in contract law and those same concepts in marriage and divorce law. The differences and lingering difficulties in exporting contract doctrines to marriage and divorce law serve as a cautionary word to arguments that seek to privatize marriage to a large extent.

E-Marriage (Allison Tait)

Whether it is discussions in law and economics about the benefits and constraints related to bargaining within a plural marriage, popular culture visualizations of multiple wives collaborating in the kitchen, or polygamists and same-sex marriage advocates building coalitions around the right to privately order intimate relationships, the trope of Mormon plural marriage has recently engaged the public imagination with great vitality. Outside of the sensationalistic dramatic value and right-to-privacy rhetorical uses of plural marriage, however, little has been mentioned about its relationship to the conventional, opposite-sex marital relationship. This lapse unfortunately erases discussion about how Mormon plural marriage underscores broader problems about how to recognize and where to place boundary lines that differentiate formal from informal marriage and mark jurisdictional borders of community custom, religious ritual, and state action.

Focusing on this set of questions - what counts as a marriage? what value do we give to community norms? how long should the reach of the state be in recognizing marriage?- the concept of Mormon plural marriage provides a productive analytic for studying the spheres of authority, sometimes concurrent and sometime competing, that control marriage and determining the values that attach to each sphere. In the context of e-marriage, these same questions may also prove useful in thinking about how to disentangle the local from the trans-local, and the role of community from that of church and state.

E-Marriage (Bryan Wildenthal )

The author and his husband were married in California in July 2008, during the brief window opened by the California Supreme Court (which ruled in May 2008 that denying marriage to gay couples violated the state constitution) and closed by the people of California (who voted narrowly to approve Proposition 8 in November 2008, amending the state constitution to restrict marriage to heterosexual couples). Like thousands of other California couples, they then faced the legal quandary of not knowing whether their and similar marriages remained valid (the California Supreme Court ruled in May 2009 that they are still valid, but confusion seems to persist). Their uncertainty predated even this stomach-churning legal roller-coaster ride, as they (like many other gay couples) debated whether to enter into the separate-but-(almost)-equal "domestic partner" relationship offered by California (and some other jurisdictions), or hold out for the "real thing." For many gay couples, basic life decisions about where to work, live, move to (or not), and even less weighty issues like where to travel on vacation, have been affected by the unstable and shifting landscape of marriage law. This troubling uncertainty spans both time (as in the California Prop 8 episode) and space (as gay couples confront a confusing and contradictory patchwork of federal, state, Indian Nation tribal, and foreign jurisdictions when it comes to marriage). Can "E-Marriage" offer a partial solution to these conundrums? Perhaps. It may, in any event, help raise the consciousness of the law, and the American people, about the issues really involved.