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Legislating in the Shadow of Nature

Should there be a relationship between law and marriage? That this issue may legitimately be raised today suggests the daunting contingency of history. Such a question would have been as incomprehensible to William Blackstone in the 18th century as to Joel Prentiss Bishop, the dean of domestic relations specialists, a century later. Nor is such a topic broached in the editions of the notable 20th century family law treatise, the work of Prof. Homer H. Clark, Jr. Scholars from across these three centuries would have given amiable assent to Joel Bishop’s baseline definition, that marriage involves “one man and one woman united in law for life” in a civil status whose source was “the law of nature.”1 But now marriage is an amoeba. It has become an institution whose very formlessness allows for special pleading on a rolling number of sides. As such, the American domestic union is both loudly derided and proudly defended by those who agree on little about the terms of engagement. Individuals continue to unite in couples, separate, only to re-emerge as partners in other couples. Which of these pairings areor should be—deemed legal marriages? In making this determination, what is the proper role for the parties’ freedom to contract the marriage of their choice? What remains of legislative efforts to conform marriage to its ideal in Nature? One of the many virtues of Nancy Cott’s Public Vows: A History of Marriage and the Nation is her sure-handed grasp of the vigorous if tortuous relationship between formal law and informal marriage. She also recognizes that both the permanence of legal rules and the evanescence of informal unions have been exaggerated. The entropy of domestic fusions and fissions has rendered the process of ordering the nuclear family nearly impossible. Marriage has become, in short, function in search of form. This essay explores the tension between legislative prescription and contractual freedom in shaping the marital relationship in the 21st century.