Symposium Overview: Perspectives on Innovative Marriage Procedure

Abstract

This overview of a symposium on Modernizing Marriage with E-Marriage summarizes and provides commentary on a rich set of contributions from legal scholars with expertise on marriage, cultural trends, religion, history, and behavioral law and economics. With its title, Perspectives on Innovative Marriage Procedure, the overview emphasizes that the procedural component of marriage deserves deep attention. Procedure can be a path toward moderating the marriage wars and rationalizing assumptions about what one contributor, Anita Bernstein, calls the "essentials of marriage" that can lurk to disrupt marital expectations. Assumptions about the iron control of geography over marital destiny, including the need for physical presence in a state to receive its marriage solemnization, is one unchallenged and little analyzed "essential" of marriage.

Participants responded to the concept, raised in Candeub & Kuykendall, Modernizing Marriage, 44 U. Mich. J.L. Reform 735 (2011), of states, especially those with gay marriage laws, using their existing power to provide distance access to ceremonial marriage authorization. Contributor June Carbone related the idea to her work on Red States and Blue States and concluded the proposal can help states "manage the public expression of family values in a manner consonant with the sensibilities of the locale." Allison Tait provided interesting discussion of the visual nature of a marriage ceremony and directed attention to the combination of “performance, publicity, and place,” as they may relate to localism. With the increasingly networked format of community, she notes that the construction of an audience for ceremony must take care to “match the public and the place.” Drawing on the work of Hendrik Hartog, the overview questions the image of a heritage of local control creating the received norms of marriage. Rather, marriage history in the U.S. is not one of communities controlling marital norms, or of states creating a law of marriage through a grounding in the local community and its norms, but of appellate judges grasping at borrowed quotations that did not capture the actual complexity of marriage law in the English common law. It is also a history of couples evading local restrictions and seizing for themselves normative control over their marriage, often with the aid of judges. The symposium table of contents is available on the MSU Law Review website, with links to the articles. This symposium is part of an ongoing project to probe deeply into the received assumptions about marriage procedure and geography and to assess how they can propel or soften the cultural conflict about marriage and state control. The project proposes a middle path for resolving the stand-off over marriage.

Keywords: E-marriage, same sex marriage, covenant marriage, choice of law, immigration, internet, status good, federalism