Can a state legislature abolish civil marriage? The hypothetical possibility stimulates interesting classroom discussions in law schools. But most people don't think the attempt is likely to be made.
Nevertheless, lawmakers in Alabama, where I live and teach (in a law school) seem eager to conduct the experiment. In 2016, the state legislature passed legislation purporting to abolish common-law marriages. Common-law marriage is a legal status that binds two people who have acted as though they are married, though they have not formally married under a state's positive laws. Establishing the existence of a common-law marriage requires evidence and proof. This requires litigation, and litigation is expensive and time-consuming. For this reason, many states now purport to have abolished common-law marriage.
Now some in Alabama want to do away with civil marriage entirely. Last session, the full Alabama Senate and the House Judiciary Committee both passed a bill that would have ended official marriage licensure in the state. The scheme is intended to achieve a principled compromise between, on the one hand, the US Supreme Court's mandate in Obergefell v. Hodges that states must treat same-sex couples and natural marriages equally and, on the other hand, the mandate of conscience of Alabama citizens and officials who understand marriage to be a man-woman union.
These legislative proposals considered together raise the question of what would happen if a state were to end all official cognizance of the distinction between marriage and non-marriage. Would marriage cease to exist in law?
I think the answer is: not entirely. Legislation intended to abolish both common-law marriage and officially licensed marriage can rid the legal institution of marriage of many of the incidents, privileges, and entitlements that it enjoys under federal and state law. But it could not abolish it. For many of the duties of marital relations are generated and vested by the actions of the parties themselves.
Curiously, the effort to abolish common-law marriage comes at a time when more couples than ever are acting as common-law married couples. Unmarried cohabitation has increased steadily over the last several decades. According to the Census Bureau, the number of couples cohabitating without officially marrying has risen from fewer than half a million couples in 1970 to more than 7.7 million in 2010.
Many of those couples incur the responsibilities of marriage. Increasingly, men and women live together as married, including purchasing property together, without formally tying the knot. Significantly, many of them also have children together.
State law and private law sometimes adapt to this new reality, treating cohabitating partners as the legal equivalent of spouses for various purposes. This is significant. It is not difficult to conceive of an unmarried couple in the same ways the law treats any business partners or co-owners. Nevertheless, some courts have declared an equitable or contract right to enforcement of unwritten understandings or written agreements between a man and woman living together. This amounts to a claim by the abandoned cohabitant for financial support or distribution of assets according to the parties' promise-based expectations. The resulting remedy is sometimes called "palimony."
In judgment and remedy, palimony looks very much like the old doctrine of common-law marriage, though without any legal status, and without judicial consideration of the purposes for which men and women live together. (Indeed, to the extent that sexual intimacy is a reason for cohabitation, courts cannot consider it as a reason for any economic agreements between the partners, lest they be deemed to commit prostitution.) Common-law marriage is grounded in equitable considerations of natural justice, that parties who hold themselves out as married generate various obligations to each other and to others that, over time, come to vest as duties. The conduct of the parties generates reliance interests. Palimony is grounded in the same equitable considerations.
If elite law professors succeed in their efforts, committed cohabitation will soon enjoy the same legal status as marriage, as well. Almost two decades ago, in an influential set of legal reform proposals titled Principles of the Law of Family Dissolution, the American Law Institute proposed treating certain domestic partnerships as marriages where the parties by their own conduct have generated legal rights and obligations. Commenting on that document, the left-liberal editors of a prominent, widely-used Property casebook observe, "The same principle underlays [sic] common law marriage." Domestic partners must share a primary residence and must live together for some time. After that, if "the partnership terminates while both partners are living, the couple's property is divided according to the principles set forth for division of marital property." If death separates them, then the state's laws of intestate succession apply.
In short, common-law marriage, or something very much like it, is making a comeback in the law. As efficiency-minded legislators attempt to drive it out the front door, equity and reform-minded scholars are ushering it in the back. Whether or not states could abolish civil marriage, the basic rights and duties of marriage have proven resilient.
Common-law marriage is like palimony and domestic partnerships in some respects and unlike it in others. Like its more recent successors, it generates reliance interests. Those interests can become vested rights, which legislatures cannot abrogate retrospectively. Unlike palimony and certain classes of domestic partnerships, it also generates natural rights that are entirely beyond the competence of governments to abolish. For both of these reasons, we might expect common-law marriage to resist legislative efforts to abolish civil marriage.
Legislatures have power to change law. But they are not omnicompetent. Indeed, the United States was founded in part to vindicate the idea that legislative powers, like governments generally, are instituted to secure pre-positive rights.
One of the most significant limitations on legislative power in American law is the inability of legislatures to deprive people of vested private rights. This important security for ordered liberty has roots in English common law but came into full force after the American Revolution. It means, among other things, that changes in the law must be prospective only, not retrospective, and that no official may deprive anyone of his property without due process and just compensation.
Another implication is that familial rights and duties are resistant to legal change. American jurists have followed the great English jurist William Blackstone's characterization of marriage as a contract formed by a man and woman with the capacity to obligate themselves, a mutual duty incurred voluntarily. And even if the marital contract itself were not vested (it is), the performance of its duties involves the spouses in incurring various additional duties to each other and to people whose interests their marriage affects, and so generating vested private rights in reliance on the marital promises. The duties that spouses accept in marriage toward each other, their children, and those outside the household with whom they transact their affairs, and the correlative rights of spouses, children, and outsiders, are legal reasons for officials as well as for the parties themselves.
As I've explained at Public Discourse before, some state courts asserted absolute legislative supremacy over domestic relations during the antebellum era. But most courts rejected that idea as unsound. Thus one court explained that whatever power a legislature has to alter familial rights and duties, as by an act of special divorce,
as it cannot, even for the public good, change the right of private property from one to another without compensation, much less can it do so by a special act of divorce, sought by one of the parties against the consent of the other, with the purpose or effect of operating upon the rights of property incident to the marriage relation.
At the very least, this means that acts purporting to abolish common-law marriage must only be applied prospectively, and not to marriages consummated before enactment. But it also means more than that. For unless the legislature is prepared to abolish the general powers to form contracts, convey and give property, and create other private obligations for oneself, it cannot simply declare acts of private ordering that are marital in fact to be non-marital, especially those on which people rely in their actions.
Common-law marriage is also different from palimony and domestic relations in that it is the source of parents' duties to their natural children. The common law pays attention to the union of a man and a woman not primarily for its economic consequences but rather because it has the radical potential to generate new human life. Someone must provide for the children. And that is the parents' duty.
Blackstone and other common-law jurists identified a "superior" law, which precedes and stands above human law. Most of that superior law consists of "matters of indifference," about which reasonable minds may disagree and over which legislatures have power to make determinations. But some of it is beyond the competence even of legislatures. Blackstone gave three examples of duties that not even Parliament could alter - (1) the duty not to commit an act that is wrong in itself, such as murder; (2) the duty to worship God; and (3) and the parental duty of "maintenance of children."
That last duty transforms a marital commitment, whether express or implicit, into a general duty of the law. Blackstone reported of the legitimacy which marriage confers upon children:
The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation . . . laid on them not only by nature herself, but by their own proper act, in bringing them into the world . . . By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have the perfect right of receiving maintenance from their parents.
Thus, in the view of the common law, the general right of a child to be connected to her own parents is part of the superior law that no human lawmaker has power to alter. The particular right of a particular child to her parents' care is vested at birth as a result of the parents' actions. The law has means of divesting any particular child of her right. Unfortunately, some of those means are quite hostile to the child's true identity. But the presumption of law strongly favors the child's natural right. Furthermore, the law has longed presumed that the mother's husband is the father. These presumptions operate together to secure the legal effects of the promises that a man and woman make to each other in sight of their community.
It cannot be otherwise. I do not mean it cannot be in a metaphysical sense but rather as a matter of practical necessity. Imagine a society with no birth certificates, marriage licenses, or any other official markers of marital or parental status. How would responsibility for children be worked out? Even in totalitarian societies, which in principle elevate the state over the family, children are still born to men and women and raised by them.
Law is a kind of practical reason. Nature and personal obligation have ways of asserting themselves in practical reason even when officials bend law toward utopian central plans.
So, reports of the demise of common-law marriage are greatly exaggerated. Canons of equitable interpretation, presumptions, and other heuristic devices of the law prevent courts from attributing to the legislature an intention to perform a manifest injustice or to attempt something that cannot be done. Legislatures should not be understood to intend results that are absurd or unreasonable. And they cannot do what is impossible.
And even if courts are prepared to attribute unreasonable intentions to legislatures, legislatures themselves should not act unreasonably. In other words, even if I am incorrect to claim that the abolition of civil marriage is impossible, legislatures should not try it.