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Pluralism and Decentralization in Marriage Regulation

This paper, written for a Conference on Multi-Tiered Marriage, explores what the State role in regulating marriage is, and should be, given the growing set of alternative marriage options, and the greater decentralization of marriage regulation in the United States. The paper considers private agreements, menus of options, choice of law, and the delegation of marriage regulation to religious institutions. The paper suggests that the greater diversity and decentralization of marriage regulation is largely a positive development, allowing parties to structure marriages according to their individual needs and sincere religious beliefs. However, there is a need for limits: to protect vulnerable parties, and to reflect beliefs of what is minimally necessary for marriage to work for the social interest rather than against it.