90 Indiana Law Journal 1261 (2015)
Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Recently, several scholars have answered this question with a no and concluded that the state should abolish marriage, along with all other categories of intimate status. While politically infeasible, these proposals offer a powerful thought experiment. In this Article, I use this thought experiment to argue that the law cannot avoid relying on intimate-status norms and has legitimate reasons to retain an intimate status like marriage.
The argument has three parts. The primary lesson of the thought experiment is that the state cannot abolish intimate status. Even if a state abolished formal status registries, private law would recreate ad hoc status distinctions. As long as intimates can bring claims against one another in contract, tort, or restitution, ordinary private-law doctrines will require judges or juries to interpret the parties’ legal rights in light of their relationship. The law might exempt intimates from these ordinary doctrines, but that would place a systemic status distinction at the heart of private law.
Second, these private-law tailoring doctrines inevitably rely on intimate status, because intimate norms are what moral philosophers call “imperfect duties.” A duty is imperfect when the actor has discretion to decide how and when to fulfill it. Whether a discretionary act fulfills an imperfect duty depends on whether it expresses the actor’s subjective commitment to the values and ends of the relationship. Consequently, the only way for a third party to make precise judgments about imperfect duties is to interpret the parties’ conduct in light of normative standards for that type of relationship. The law can enforce imperfect intimate duties only if it supplants the couple’s discretion to interpret their duties and replaces their commitment with legal sanctions.
Finally, marital status offers a way to manage the tension created by imperfect intimate rights. The law refuses to enforce marital rights in ongoing relationships, which prevents the state from displacing couples’ discretion and commitment. When a couple separates, they abandon their commitment and thus lose their discretionary authority. At that point, the state may use equitable and egalitarian norms to protect the former spouses’ legitimate expectations. This combination of deferred protection and equitable remedies offers a framework for legally protected imperfect rights.
Strauss, Gregg P.
"Why the State Cannot “Abolish Marriage”: A Partial Defense of Legal Marriage,"
Indiana Law Journal:
3, Article 9.
Available at: http://www.repository.law.indiana.edu/ilj/vol90/iss3/9