Should marriage be saved?

Modern journalism should adopt the acronym NAOS (Not an Onion Story), to identify actual news that can’t otherwise be distinguished from outright satire. A perfect candidate is the report that Sens. Larry Craig and David Vitter have co-sponsored the Marriage Protection Amendment.

The purpose of this proposed constitutional amendment is to preserve the sacred character of the institution of marriage, by making it impossible for individual states to legally recognize gay marriage, polygamy, polyandry, or any other combination besides, in the words of the amendment, "the union of a man and a woman."

Craig, R-Idaho, made headlines last summer when he was arrested for attempting to engage in an anonymous same-sex liaison within the romantic confines of a Minneapolis airport’s men’s room. Vitter, R-La., is best-known for his patronage of the late Deborah Jean Palfrey’s prostitution service (Palfrey committed suicide after her arrest. Vitter apologized at a press conference and went back to saving marriage).

I would now like to propose my own constitutional revision: the Marriage Elimination Amendment. In all seriousness, as a legal — as opposed to a social — institution, marriage is an anachronism we would be better off without.

The claim that marriage is, in the words of President Bush, "a sacred institution" highlights yet again what a bad idea it is to use law to mix the sacred and the secular.

Sixty years ago the Christian writer C.S. Lewis made the sensible suggestion that people ought to distinguish between Christian marriage and the secular variety. The former was, for Lewis, a genuinely sacred thing, while the latter was essentially a one-size-fits-all legal status provided by the state, similar in that sense to a standard business partnership or the like.

Lewis argued that such a distinction would make it possible to treat Christian and secular marriages very differently, both as a matter of law and social attitude. This insight should be extended one step further, by eliminating secular marriage altogether.

The principles of our new republic would be as follows.

– Marriage would become a strictly social institution, rather than a legal one. People who wished to be married within a particular tradition or institution, religious or otherwise, would remain free to do so, but such arrangements would be private matters, and would not in themselves create any legal obligations for the participants.

– Whether or not people had entered into such arrangements would be irrelevant in regard to the legal consequences of having children. Parents would of course still have both the right and the obligation to care for their offspring. Any dispute between the parents of a child regarding such matters would be subject to legal rules designed specifically to deal with these conflicts.

– Adults who wished to obligate themselves to each other in legally binding ways could still do so, but would have to enter into specific contracts for that purpose. Concepts such as marital property and spousal support would no longer exist.

Thus if a couple (or some larger number of adults) wanted to create an arrangement whereby upon ceasing to live together they would be legally obliged to divide all the property they had acquired individually over the course of their cohabitation, they could do so, but only by entering into a contract laying out precisely what they were obligating themselves to do.

The secular institution of marriage is a remnant of an age in which women were legally and economically subservient to men. This was reflected by legal rules that allowed a woman to sue a man for breaking an engagement (since his doing so harmed her sexual reputation, which was her most valuable asset), and a man to sue his wife’s paramour, for "stealing" his "property."

We’ve gotten rid of these rules, and we should get rid of marriage as well.


(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)