Deborah Zalesne (CUNY School of Law) & Adam Dexter (Government of the State of New York) have posted From Marriage to Households: Towards Equal Treatment of Intimate Forms of Life (Buffalo Law Review Vol. 66, No. 4) on SSRN. Here is the abstract:
Law and attitudes around marriage have changed drastically in our own history and are widely different across cultures. Same-sex marriage is now legal, polyamorous relationships are on the rise, and, as an empirical matter, marriage serves a different purpose than it did as little as forty years ago -- marriage is no longer a prerequisite for sexual intimacy, cohabitation, or parenthood. There are no essential elements to a definition of marriage to which the state can appeal without arbitrarily restricting citizens’ possibilities with respect to their most intimate relationships. Therefore, because any state-sanctioned version of marriage will be arbitrary, the only justified form of marriage that the state can sanction is as a contract like any other, with the terms determined by the parties.
From this premise, this Article proposes a shift from “marriage” as a status, with membership based on State approval, to the broader notion of “household” as a contract, with the parties themselves determining the members. Under this new legal approach, “households” supplant marriages as the atomistic factor in policy-making and social thinking. Households would replace marriages in receiving the State allocated benefits traditionally provided to married couples, but the parties themselves would define who is a member of the household. Equal treatment of independent relationships, free of state-imposed membership requirements, respects autonomy and diversity. Household constitution is grounded in voluntary choice, subject to the standard contract defenses concerned with illusory assent.
Given the endless variety of intimate relations throughout history and across cultures coupled with the principle that citizens should be free to pursue intimate arrangements fit for them, we set out to justify the claim that formal recognition of family formation ought not to be limited to couples but must include the freedom to pursue arrangements involving more than two people. Insofar as there is only one form of boilerplate marriage, it cannot fairly be said that the decision to enter that marriage is a choice in the meaningful sense, which demands alternative feasible arrangements.
We justify our approach on established principles of political liberalism and classical contract law, finding common trends toward openness and autonomy between the two traditions. A central tenet of political liberalism is state neutrality with respect to “the good life,” whereby the state provides the conditions for the actualization of human purposes without sanctioning one form of life over another. Especially in a pluralistic society such as the United States, for the state to favor this or that form of life is either to discriminate against those who live differently or to narrow the range of options for citizens arbitrarily, supplanting organic society’s variety and richness of human life with a prescribed homogeneity. Privileging married persons with government benefits and special taxation treatment violates these basic principles of political liberalism.
Polygamy is one feasible alternative to monogamy that tests our allegiance to basic principles of liberalism and classical contract law. Other arrangements deserving of equal state treatment include nonromantic partnerships, temporary marriages, polyamorous arrangements, cohabiting couples, and multi-generational cohabitation, such as a mother and grandmother raising a child, among others: all equally “households.” While it is true that historically, polygamous relationships have been characterized by exploitation and oppression of women, proper polygamy -- the right to marry multiple, consenting, age-appropriate partners of whatever gender -- is not inherently harmful or unjust. Rather, patriarchal ideology, religious fanaticism, laws and norms limiting the education and professionalization of women, and economic dependence on men create the conditions for exploitation of women in polygamous (and monogamous) marriage. Our own traditional practices are immaterial toward the issue of whether polygamy is morally permissible and whether it ought to be legally so. Americans’ immediate associations of polygamy with the other race of people or the other religion are cause for initial skepticism of our intuitions about what is unjust or harmful.
Arguably the greatest virtue of the United States is the slow but steady trend toward openness and tolerance. The trend does not skip over marriage law. From coverture to marital property to no fault divorce to gay marriage and cohabitation, we see a line of progress far from its finale. Just as our society has been made more just by the expansion of the concept of “citizen,” so too will the expansion of the concept of “marriage” serve the ends of a just society. This is so, even if the multi-cultural window is opened to family forms as objectionable to some as disagreeable speech protected by the First Amendment, and even if expanded to the point of abolition.
