Symposium Overview: Perspectives on Innovative Marriage Procedure

Electronic copy available at: http://ssrn.com/abstract=2004641Electronic copy available at: http://ssrn.com/abstract=2004641

Legal Studies Research Paper Series

Research Paper No. 10 - 02

Symposium Overview: Perspectives on Innovative Marriage Procedure

Mae Kuykendall Adam Candeub

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SYMPOSIUM OVERVIEW: PERSPECTIVES ON INNOVATIVE MARRIAGE PROCEDURE

Mae Kuykendall and Adam Candeub*

2011 MICH. ST. L. REV. 1

TABLE OF CONTENTS

I. E-MARRIAGE: VISIBILITY AND COMMUNITY...................................4 A. Responding to Specific Critiques: Religion, Backlash,

Empirics......................................................................................17 1. The Need for Greater Access..................................................21 2. The Indefensibility of Physical Presence................................21 3. “The Desirability of Interstate Competition and

Procedural Innovation”.........................................................24 B. Concluding on a High Note........................................................27

II. CONCLUSION.....................................................................................30 III. ADDENDUM—JUNE 28, 2011..........................................................30

When we (Adam Candeub and Mae Kuykendall) began to talk about the idea of expanding marriage access by encouraging the use of state au-thority to offer laws from a distance, we were looking at a pretty blank can-vas. We had questions about potential obstacles to making the idea real, either as something a state might do by passing a law, or something that other scholars might take seriously as having real prospects for reform, or a theory that might uncover buried assumptions about marriage. At the same time, we recognized the challenge of making clear the limitations of the idea, its practical value, and its transformative potential. We have empha- * Each author is a Professor of Law at Michigan State University College of Law. We owe thanks to other faculty members, Law College staff, and Dean Joan Howarth for supporting this project and, especially, the symposium gathering and publication. We thank the Dean for her consistent support for scholarship at the Law College. Associate Dean Glen Staszewski has provided feedback on our drafts and also introduced the symposium session. Sally Rice did her usual admirable work organizing logistics for our guests. We owe special gratitude to The Honorable Mollie Burke, who helped us make a connection to the members of the Vermont legislature. Two of them took part in our gathering. Bill Lippert, Chair of the House Judiciary Committee, who graced the gathering with his participation, provides continuing inspiration for our goals relating to marriage fairness and access. The faculty at MSU College of Law has on more than one occasion commented on our working drafts, for which we are grateful. Finally, we owe a tremendous thank you to Editor-in-Chief Elinor Jordan and Senior Articles Editor Salina Maxwell, as well as legislative expert Bill Kim. All the editors did impressive work, making the symposium gathering and this volume a success.


2 Michigan State Law Review Vol. 2011:1

sized that the proposal is agnostic about whether a state must recognize a same-sex marriage but that marriage procedure reform, which legal scholars have ignored, offers to expand, even transcend, the parameters of a fraught legal and cultural debate. Constructing the idea required considerable ref-lection about mixing together a simple idea—states have power to confer legal statuses on parties not present in the state—with a complex network of assumptions about marriage. The idea collides with many notions about tradition, state insularity and a state’s control over marital expression within its geographic boundaries, and religion’s role in marriage. “E-marriage,” in the term we adopted, poses for examination (1) the role of technology in our evolving cultural practices; (2) constitutional questions about cross-jurisdictional legal transactions; (3) the economic factors that affect a state’s motivations to enact legislation; (4) the value of marriage to couples abso-lutely or under different assumptions; (5) the risks and benefits of severing marriage from place; and (6) the legal similarities and differences with other legal mechanisms, such as proxy marriage and out-of-state incorporation.

We wanted to think through the reasons for the status quo in marriage procedure, the realistic possibilities of innovation, and the potential benefits to all couples of more convenient access to marriage. E-marriage also raises an empirical question about the overall cultural reception of differing strate-gies for advancing marriage rights for same-sex couples: would states be more ready to accept the spread of marriage visibility, and perhaps to rec-ognize same-sex marriages contracted by other jurisdictions, through an invigorated conception of recognition canons, as referred to by Brian Bix,1

To construct the idea and place it in circulation for scholarship and for consideration by policy makers, we wrote an article, first called E-Marriage: Breaking the Geographic Monopoly; posted it on the Social Science Research Network on October 28, 2011; and created the Legal E-Marriage Project. We announced its creation, and began doing interviews, such as one with NPR’s Morning Edition, aired in December 2009. The article has been published now as Modernizing Marriage, 44 U. MICH. J.L. REFORM 735 (2011).

and federalist visions of comity, than to live with an imposed solution man-dating that all states provide marriage authorization to same-sex couples?

We wanted to write together, because the underlying questions called upon multiple sources of knowledge and insight. Among the questions we considered were (i) how novel the proposal would be in marriage history; (ii) how to conceive of marriage within the language of economics; (iii) how to compare marriage authorization procedure to other legal transactions that combine elements of party control and state supervision; (iv) how ca- 1. Brian Bix, Reflections on E-Marriage Papers, 2011 MICH. ST. L. REV. 35, 38- 42 (emphasizing marriage recognition is a function, not of Full Faith and Credit, but of canons of recognition in conflicts of law).

Perspectives on Innovative Marriage Procedure 3

nons of recognizing marriages might apply to e-marriage; (v) how states might compete in a market for marriage law and procedure; (vi) whether distance marriage is the next step in a laissez-faire approach to the entry-level moment in marriage (official “hands off”) or amenable to an enhanced state role in offering or enforcing prudential safeguards (the state offering to leverage its role to become a helper, or information intermediary); and (vii) whether religion is to be presumed hostile to e-marriage.

Our draft produced a combination of historical analysis, with a compi-lation of rarely cited law review and historical sources on proxy marriage and the emergence in the American colonies of marriage licensing; econom-ic reasoning and argumentation about how to classify the “good” that mar-riage provides and how competition might break down a monopolistic logic based on geography; a review and critique of the current ground rules for marriage; and a set of guidelines for possible e-marriage statutes. The idea for e-marriage arose from the state bans on same-sex marriage, but our ef-fort to think through marriage procedure led us to conclude that contempo-rary marriage procedure lacks a logical purpose. We concluded that mar-riage fairness demands better access to legal marriage for couples who, without any cultural dispute, are eligible to marry,2

The idea contains more nuances and raises many more issues, both theoretical and practical, than we could address in one article. Hence, we decided to convene a symposium organized to invite a wide range of analy-sis, perspective, and commentary on distance marriage. We believe we succeeded in moving the understanding and implications of the idea forward with the presentations and commentary our participants have contributed, for which we express gratitude to each of them: Kerry Abrams, University of Virginia School of Law; M. V. Lee Badgett, University of Massachusetts Amherst; Anita Bernstein, Brooklyn Law School; Jennifer Gerarda Brown, Quinnipiac University School of Law, and Yale Law School; June Carbone, University of Missouri-Kansas City School of Law; Marci A. Hamilton, Benjamin N. Cardozo School of Law; Gregory Mitchell, University of Vir-ginia School of Law; Joel Nichols, University of St. Thomas School of Law; Marc R. Poirier, Seton Hall University School of Law; Mark Reed-Walkup, Wiedamark LLC, GetEQUAL; Allison Tait, Yale Law School

and for same-sex couples who cannot.

2. For those eligible in nearly all jurisdictions to marry, there are still impediments to marriage that can arise from temporary separation by distance or bureaucratic or legal obstacles. Inertia can become a factor for long-standing couples in “marital” relationships. The ending of common law marriage in most jurisdictions put an end to a safety net for many couples of long duration who did not participate in a marriage ceremony. Feminist scholars have called for a return of common law marriage, to protect women who may lose all public pension claims and private inheritance in such relationships. See Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage,” 75 OR. L. REV. 709, 779 (1996) (arguing that common law marriage protects the interests of women).


(third-year student); Dante Walkup, Wiedamark LLC; and Bryan H. Wil-denthal, Thomas Jefferson School of Law. We are also grateful to Brian Bix of the University of Minnesota School of Law for contributing an essay responsive to the symposium papers, and to Thomas H. Little of the State Legislative Leaders Foundation for writing a special analysis of the role of our symposium guest, Vermont House Judiciary Committee Chair Bill Lip-pert,3

After the symposium, we organized a Hot Topics program at the American Association of Law Schools gathering in January 2011 in San Francisco. The participants were my co-author, Adam Candeub, Aviva Abramowitz, Monu Bedi, June Carbone, Joanna Grossman, and Larry Ribs-tein. Three of these participants—Monu Bedi, Joanna Grossman, and Larry Ribstein—will provide articles for the next issue of the Michigan State Law Review.

in the evolution of marriage law to include same-sex couples through legislative action without the prompting of court orders.

I. E-MARRIAGE: VISIBILITY AND COMMUNITY

The proposal of something innovative, and challenging to relatively unconsidered assumptions, elicits many objections, friendly and unfriendly. The unfriendliest of the objections to e-marriage treat it as a form of evasion of same-sex marriage bans. We regard this objection—to the substance of one set of marriages that e-marriage might authorize ceremonially, with whatever local legal effect—as a de facto argument for a nationwide ban on same-sex marriage. Arguments for such a root-and-branch ban remain present in discourse about marriage, but they do not require debate or reso-lution in connection with e-marriage. 4

We favor making same-sex marriages more accessible, and encourag-ing states to relax their stronger non-recognition rules,

5

3. See infra note

but our concept of e-marriage does not carry the banner of same-sex marriage as substance. Hence, we see no need to engage in the arguments against its being heard of or seen to happen anywhere in the land.

76 for other legislators and policy professionals who attended the symposium and provided insights during a meeting held on November 10, 2010. 4. E-marriage is a procedure that is neutral as to the substance of marriage. Inso-far as a particular marriage conforms with the substantive law of a couple’s domicile, it should be recognized in accordance with the usual practices of states to recognize marriages entered into in compliance with the authorizing procedures of a jurisdiction that has con-ferred marriage formalization on a couple. 5. For a discussion of the reach of non-recognition norms, and for an argument that the idea of e-marriage may cast them in a new light, see Mae Kuykendall, Exporting Cere-monial Marriage: Constitutional Considerations (May 24, 2011) (unpublished manuscript) (draft on file with author).


Our friendlier critics object that e-marriage is a pale substitute for the richness, recognition, and public support implicated in a wedding held in one’s home state pursuant to a law enacted and approved in one’s state, published as a wedding announcement by local papers, and heralded as va-lid by the whole local community. They argue, as to same-sex couples, that they would have little interest in such ceremonies, and would not draw from them the type of satisfaction that couples who want to marry wish to enjoy with an official marriage ceremony. In simple terms, it wouldn’t be real, so no one would want the cold comfort it might offer in a state that rejects it.

The argument that something may be good in theory but won’t work in practice was contradicted by a “real” e-marriage ceremony that took place shortly before our conference. We had the good fortune to meet the happy couple, Dante and Mark (Reed) Walkup, at our conference.

Mark and Dante reported directly to the symposium the story of their inspiration, encouraged by finding our posting online, after Dante had the brainstorm to use Skype to import a legal ceremony to Dallas, Texas. Mark’s report, Our Wedding Day: Bringing Law and Love Together to Tex-as, is now available to readers in this symposium. Mark’s testimony: “It was the best day of my life, filled with memories Dante and I will cherish forever.”6

A footnote to the wedding belongs in the text of marriage history. Following several days of media attention to the “first ever” same-sex inter-net marriage, Mark and Dante received a copy of a letter from the Deputy Clerk of the Marriage Bureau, D.C. Superior Court. The letter informed the officiant that Mark and Dante’s marriage certificate was cancelled. The court stated that,

The main event of Mark’s best day, of course, was his wedding to Dante, performed over Skype from a W Hotel in D.C. to the W Hotel in Dallas, with an officiant presiding on a large screen for the rites.

[t]he return is invalid because it has come to the attention of the court that the sub-ject contracting parties to the marriage and you, the officiant, did not all personally participate in a marriage ceremony performed within the jurisdictional and terri-torial limits of the District of Columbia. To correct this deficiency, you are re-quired to perform the marriage ceremony within the District of Columbia with all parties (i.e., the contracting parties and the officiant) in physical attendance at the ceremony.7

Indeed, a spokesperson for the D.C. court insisted to CNN that, since mar-riage licensing was instituted in D.C., the physical presence of both parties has always been required before a marriage would receive the formal bless-

6. Mark Reed-Walkup, Our Wedding Day: Bringing Law & Love Together to Texas, 2011 MICH. ST. L. REV. 43. 7. Letter from the Deputy Clerk of the Marriage Bureau, D.C. Superior Court to Mark Reed-Walkup & Dante Walkup (Nov. 24, 2010) (emphasis added).


ing of the District of Columbia.8 Belying the claim is the report of a mar-riage in 1991 by a soldier located in Saudi Arabia to a Navy petty officer located in the United States. A newspaper report described a wedding cer-emony that took place at the Lutheran Church of the Reformation in the District of Columbia, with the groom’s father serving as his proxy.9

Dante and Mark’s wedding, and the footnote to it, illustrate several of the symposium pieces and one of our points. We suggest that the practice of marriage by Skype or other communications technology is likely to spread, with couples seizing for themselves control over a procedural me-chanism in which the state plays a critical role but in which couple autono-my is also a center piece. Notably, the notice to the officiant in Mark and Dante’s wedding refers to “the subject contracting parties to the marriage.” Our Article, Modernizing Marriage, discusses examples of telephone and mail marriages held valid in the early twentieth century using basic contract logic.

10 We argue that, given the focus on the couple’s autonomy that mar-riage history reveals, the contract element, and the emerging pressure for the application of modern social networking tools to the formation and formali-zation of relationships, states should regularize the procedure, providing a clear path for couples to use and lending predictability and certainty11

In this regard, Anita Bernstein’s identification of the geographic re-quirement as one of the lurking, unrationalized “essentials” of marriage, which can strike unexpectedly to undo a couple’s autonomy and its agree-ments, reveals the analytic strength of the e-marriage “hypothetical.” Bernstein expands upon our challenge to the claims of geography as a mar-riage “essential,” and peels back the unexamined legal implications of the state role in marriage and subjects them to critique. We will further address Bernstein’s powerfully resonant contribution below.

to the expectations of couples who resort to formalization by the internet.

Let us return to visibility. Joel Nichols implicitly addresses visibility with this strong claim: he suggests that, in social contract theory, married couples are connected to their communities but that it is inevitable that the proper locus of authority should be the political boundary of a U.S. state.12

8. Gay Men Fight On After Court Deems Skype Marriage Invalid, CNN. U.S. (Dec. 4, 2010), http://articles.cnn.com/2010-12-04/us/dc.gay.marriage_1_gay-marriage-marriage-statutes-skype?_s=PM:us.

9. Amy Buckingham, Dad Stands in For Soldier Son at Wedding, OMAHA WORLD-HERALD, March 8, 1991, at 44 (suggesting D.C. permitted marriage by proxy without requir-ing that either party establish residency). 10. Adam Candeub & Mae Kuykendall, Modernizing Marriage, 44 U. MICH. J.L. REFORM 735 (2011). 11. The purposes of marriage licensing have as a critical component the provision of certainty to the validity of a marriage that couples intend to enter. Id. 12. Joel Nichols, Misunderstanding Marriage and Missing Religion, 2011 MICH. ST. L. REV. 193; HENDRIK HARTOG, MAN AND WIFE IN AMERICA: A HISTORY (2002). Hartog’s


Presumably, there is some notion here of combining the scrutiny of local communities with the backing for their claim of authority that can be pro-vided by a state.

But, the tight connection between local community scrutiny and state authority is far from apparent. As a historical matter, state authorization is an historical accident. Most other countries authorize marriage at the na-tional level—or delegate entirely to a religious group, as in Israel. More fundamentally, where is the society or community that monitors marriage to be located? Is community a religiously identified, cohesive group within a geographic location? Is it an inclination by a majority in a locality that ei-ther supports, or opposes, a given marriage? There is little evidence that local majorities exercise any control over the autonomous decisions of couples to marry; imprudent marriages are made with almost no community checking influence. Mark Twain’s depiction of Americans as living in fear of public opinion, and reluctant to give open expression to their opinions,13

Hence, the allusion to a rich local, geographically centered moral community overseeing marriage is an empirical depiction for which no evi-dence is cited, and which is at odds with facts about mobility in living pat-terns and in patterns by which couples plan their marriage ceremonies. In America today, as described by Allison Tait, communities of affiliation define themselves locally and across dimensions of time and space;

lacks point where marriage is concerned. In their decision to marry, people frequently do what they’d like, when they’d like.

14

historical account explains that, in the United States in the early nineteenth century, among the candidates for setting out the law of marriage, in the absence of ecclesiastical authority, were local courts, state legislatures, and appellate courts. Id. at 120-21. Local courts lacked moral authority, given their weak ties to a stable local community. Id. at 120. Legislatures were not yet active in making laws on marriage. By default, the work of setting out marital law fell to state appellate courts. Id. at 121. These courts rummaged in Blackstone for au-thority. Id. The history is thus 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 judges drawing upon a common law treatise to devise doctrine that did not capture the actual complexity of English law on marriage. See infra note 24. The law was improvisa-tional and often at a remove from communities. Given the existence of states as political jurisdictions with law-making institutions, states did become the locus of marriage law, but not the locus of a coherent body of law drawing on community sentiment, legislative delibe-ration, or broad scholarship.

these communities give rich texture to the lives of those within them, but they do not depend on state-level or even local majority-based support for their vi-brancy.

13. A good description of Twain’s view of American fear, even shared by him of being “heterodox” in ideas was provided by H.L. Mencken. H.L Mencken, Mark Twain, in THE MARK TWAIN ANTHOLOGY: GREAT WRITERS ON HIS LIFE AND WORKS 141, 148-49 (Shel-ley Fisher Fishkin ed., 2010). 14. Allison Tait, Polygamy, Publicity, and Locality: The Place of the Public in Mar-riage Practice, 2011 MICH. ST. L. REV. 171, 189-90.


June Carbone provides a textured articulation of community, expres-sion, and visibility in the complex setting of a culture with many layers of localism for defining common values. She rightly identifies the expressive significance of our proposal, linking community support to municipal sup-port for same-sex couples. The communitarian approval of which Nichols speaks is quite real in the efforts of municipalities to recognize and support the partnerships of same-sex couples.

Carbone’s summary provides a clear statement of the rich possibilities of e-marriage in the cultural divide in which we find ourselves:

Combining out-of-state marriage, municipal recognition, and/or contractual incor-poration would extend to same-sex couples the emotional experience of a marriage ceremony together with public validation in their home community and private en-forceability. It would further lay the ground for more equal recognition of their commitments. At the same time, it would allow state and local governments to manage the public expression of family values in a manner consonant with the sen-sibilities of the locale. The result would allow the country to realize the benefits of a federal system in an era in which expression matters as much as immediate legal consequences.15

Carbone recognizes that the arguments for states as the province of marriage law support, rather than inhibit, our proposal. Carbone’s vision of an al-liance between marriage-exporting states and municipalities serves the goal of community-based support for marrying couples and shows that the com-munities receiving these exported ceremonies will afford strong visibility to the ritual of marriage into which the couples enter. Brian Bix suggests that such locality-defying visibility bears a resemblance to civil disobedience.

16 Thus, Carbone regards the alliance of municipalities and law-exporters as a means of deepening community expression that supports local commitments to family values, while Bix glimpses a spirit of dissent, bordering on prin-cipled law violation. A third view draws upon a classic First Amendment claim: more expression is good, especially in venues where it challenges settled beliefs. Speech may challenge the culture, but, in so doing, it does not disobey the state.17 In a companion piece, co-author Kuykendall has developed at some length her argument about the First Amendment and other constitutional18

15. June Carbone, Marriage as a State of Mind: Federalism, Contract, and the Expressive Interest in Family Law, 2011 MICH. ST. L. REV. 47, 52.

values served by e-marriage. Federalism, it should be emphasized, supports the power of states to export law, even as their claim-ing the power to do so with marriage would enhance the realization of our

16. Bix, supra note 1, at 39. 17. The exceptions to constitutional protection of speech—for obscenity, incitement to illegal action, fighting words, fraud—do not come remotely close to applying to the partic-ipation in an official ceremonial marriage authorized by another state. 18. See supra note 5.


commitment to free expression and to equality embedded in the Constitu-tion and in our deep cultural values.

Carbone’s happy view of the alliance of municipalities and other states is an important development of a practical program for e-marriage as a well designed collaboration in a federalist system supportive of experiment, ex-pression, and equality. Mark and Dante show us the possibilities for couples to be marriage pioneers, boldly challenging the local embargo on same-sex marriage, standing up to disapproval, and constructing their own supportive community for the ceremony. Their marriage ceremony in Dal-las was deeply emotional for them, richly expressive for those in attendance, and a form of equality activism with continuing manifestations. Mark and Dante have, for example, pressed the Dallas Morning News to publish their wedding announcement19 in the paid Wedding announcements of the paper. Citing the Texas ban on same-sex marriage, the paper has refused, inform-ing Mark and Dante that their announcement may only appear in the civil unions section of the paper’s paid personal announcements.20 As of this writing, Mark and Dante have received indication that their complaint under the public accommodations law of Dallas is proceeding.21 In addition, Mark and Dante have organized an online petition seeking support through notice to the Dallas News of support for the paper to publish Mark and Dante’s marriage announcement in the paid wedding announcements.22

Allison Tait’s reflective essay on the visual element in marriage, which the Utah Supreme Court used to conclude that a religious ceremony that avoided using state licensure was nonetheless a marriage ceremony because it looked like one, directs attention to the combination of “perfor-mance, publicity, and place,”

23

19. Mark and Dante repeated their marriage ceremony in Washington, D.C., on December 10, 2010, to comply with the District’s demand of physical presence.

as they may relate to localism. Tait empha-sizes the historic connection of rules about marriage ceremony and publicity to the monitoring by local communities of the evidentiary proofs of mar-

20. For a thoroughly diligent review of the prospects for the First Amendment treatment of such a claim, see James M. Donovan, Same-Sex Union Announcements: Wheth-er Newspapers Must Publish Them, and Why We Should Care, 68 BROOK. L. REV. 721 (2003). 21. Email from Mark Reed Walkup to Mae Kuykendall (April 2, 2011, 7:22:29 P.M) (on file with author). They also had an encouraging meeting with the chief executive officer of the Dallas Morning News on June 7, 2011. Mark has reported as follows: “We had a positive meeting with the CEO of the Dallas Morning News on June 7, 2011 who agreed to review their policy again for a possible change. The CEO scheduled a meeting with us and two local LGBT community leaders on June 30 that we feel good about.” Email from Mark Reed Walkup to Mae Kuykendall (July 1, 2011) (on file with author). 22. See Hey Dallas Morning News: Same-Sex Marriage Announcements Belong in the Weddings Section, CHANGE.ORG, http://www.tinyurl.com/3wqaodm (last visited May 17, 2011) (showing 14,091 signatures). 23. Tait, supra note 14, at 172.


riage reliant upon “exposure to information.”24 While Tait’s essay provides some hint of aid to a Nichols-style claim about local control within states of the official incidents of marriage ceremony, she enriches her discussion with an invitation to consider the effects on the role of publicity and the meaning of localism as they encounter the pressures of contested definitions of marriage, demands for marriage equality, and issue-based, networked communities. She warns that not all audiences can serve the marriage good of granting status and that new marriage practices, to succeed, must “match the public and the place.”25

This focus on audience as a relevant test for the effectiveness of new marriage practice is important as states consider whether to adopt reformed marriage procedure, and as couples like Mark and Dante work to be creative in designing the visual element of a wedding, creating an audience for their marriage ritual. In the past, the concern of communities was to assure pub-licity and thus avoid the perils of secret marriages that allowed for fraud to occur. Ironically, the attempt of a couple such as Mark and Dante to spread the word, visually in a place, Dallas, before their friends, on the internet with many posted pictures of their wedding and accounts by witnesses, and in the Dallas paper, is unwelcome in parts of Dallas and among opponents of same-sex marriage. They are met with opposition to such publicity; Tait comments that “exposure to information”

26

Anita Bernstein uses the attention we gave to the geographic “essen-tial” of marriage to review other essentials of marriage, including those that unexpectedly affect marriage substance.

as a good has been a component of marriage practice. With the export of ceremonial marriage, and the effort to expose more communities to same-sex marriage information, it is the couples who are insisting on providing more information. State majorities, which use territorial control to enable the local suppression of one set of marriages, posit less exposure to information about certain marriages as a good. That suppression is not counterbalanced by information about ap-proved marriages, though, made known to a monitoring local community by virtue of a geographic anchor empowering moral control over couples. E-marriage has all upside in terms of circulating information about marriages, to prospective spouses, local communities and supportive groups, or to data bases that could function to prevent marriage fraud and to enable improved statistical studies of marital patterns.

27

24. Id.

She accepts our invitation to view marriage as a murky conception within the legal domain. As much as marriage remains a hardy concept among those who enter it, celebrate it, or

25. Id. 26. Id. 27. Anita Bernstein, Toward More Parsimony and Transparency in the Essentials of Marriage, 2011 MICH. ST. L. REV. 81.


critique it, the content of marriage as a legally guided construct is less than transparent. Even as the gendered meanings provided by coverture are gone from the formal grounding of marriage, essentials lurk drawn from gendered assumptions about marital roles. Bernstein does not examine the vestiges of gender out of an interest in how gender figures as a continuing factor in marriage; rather, she focuses on the way that features of marriage said by judges to be essential arise with little rationalization to disrupt couple ex-pectations created by private agreement. Bernstein’s “gathering” of the cases that continue to define “essentials” aligns with our claim that marriage procedure lacks a strong rationale and contains odd stipulations that serve little purpose.

The fact that the stray essentials of marriage found by Bernstein enjoy a historic pedigree within the law of coverture provides a caution about ap-peals to treatise statements made during the time when the idea of coverture dominated the legal understanding of marriage as a status.28 Nichols useful-ly crystallizes a recurring traditionalist idealization of history, linked to res-ervations about changes in marriage ground rules. Over time, conservatives have resisted changes in procedure, such as we propose, and also in connec-tion with divorce, marital legal unity, and other developments that have created an alarm in conservative opinion about the state of marriage.29

mony to locale, Nichols quotes text in which nineteenth century American jurist Joseph Story called marriage a “quasi seminarium reipub-licæ.”

Drawing on this tradition in response to loosening the tie of marriage cere

30

28. HARTOG, supra note

Seemingly, the sense is that marriage is constitutive of citizenship, and of the republic, and, for that reason, requires rooting in the existing practices about jurisdiction. Yet analysis that appeals to moral abstractions, removed from their historical context and meant to critique evolution in marriage practices, may carry meanings most compatible today with our idea of using e-marriage to enhance the visibility of marriage ceremonies and improve access. In their original context, such abstractions often carry meanings that are alarming and unsuited to our time. While the Story quote has a capacious meaning that e-marriage can support, a traditionalist invoca-tion of the seminary of the republic to arrest change risks grounding a lesson about marriage and citizenship within the deep, and obsolete, gender as-

12, at 116. 29. Id. at 19. 30. Nichols, supra note 12, at 198-99 (citing JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND DOMESTIC, IN REGARD TO CONTRACTS, RIGHTS, AND REMEDIES 100 § 108 (1st ed., 1834) (eliding “seminarium” reference)). “Seminarium” meant “seed-plot” in Latin but became the Latin origin of the word “seminary.” Seminary Defini-tion, OXFORD ENGLISH DICTIONARY, http://oed.com/view/Entry/175684?rskey=pns1k2& result =1&isAdvanced=false#eid (defining “seminary” and including “seminarium” in the etymology of the word) (last visited Oct. 5, 2011).


sumptions of an earlier time.31

Indeed, a heightened male consciousness of sexual power can be interpreted as an aspect of republican citizenship. Men who participated with other men in the mak-ing and maintaining of government, who ruled in public, also ruled in private. In-deed, their control over their private domain could become the foundation for their public rights.

The hazards of importing a nineteenth cen-tury quote about marriage and the republic to our twenty-first century mo-ment are substantial:

32

A seminary—both secular and spiritual—continues today but its meaning is transformed from one about male power and consequent resis-tance to change into a broad vision of participation. The rooting in male power was overstated in American commentary of the nineteenth century

33 and contested at the time. Today, the nineteenth century meaning of mar-riage as a seed-plot, or seminary of the republic, lacks the legal or cultural soil in which to thrive34

We honor marriage, and draw upon its historic weight as a social prac-tice to endorse procedural improvements that strengthen its availability in today’s society. We also believe the significance of marriage is not con-fined to a specific historic context. The history of marriage in America is more complex than was then, or is now, commonly understood. Idealiza-tion of past meanings, without careful attention to their problematic early meanings and potential to carry larger meanings for our time, breathes life

but the vital role of marriage in our lives—as pri-vate support for public roles, and as a rite of citizenship—continues.

31. Hartog explains how, relying on a commentator’s brevity, Americans wrested from “a complex and loosely related body of rules and institutions shaped by a variety of political, theological, and legal histories” a distorted understanding of English marriage law and culture by seizing upon eight short paragraphs in Blackstone to spread a patriarchal and misleadingly simple picture of the law of coverture in marriage. HARTOG, supra note 12, at 120, 115-121. 32. Id. at 104-05. 33. Once again, we turn to Hartog for shattering myths based on un-contextual his-tory:

Blackstone’s language distilled the decisions of one important legal jurisdiction—the common law courts. It sketched one body of rules located in a society filled with multiple-rule bodies, many of which participated in the constitution of mar-riage. It was not, on its own, the compulsory imposition of a rigid religiously sanc-tioned patriarchy.

Id. at 120. 34. The appeal of the image of male rule in marriage remains powerful, of course. The rhetoric about marriage that leaks into twenty-first century claims about history’s control over the permissible forms of marriage substance and procedure can scarcely be severed from their grounding in the connection to coverture. The nineteenth century male’s marital status enabled him to claim “republican political virtue,” and to be “ the sovereign of a do-main, able to meet with other rulers and to participate with them in government.” Id. at 101.


into unexamined gender ideas that judges once would enforce, on occasion dogmatically, without reflection.35

To be sure, even with assumed gender roles, marriage has always combined couple autonomy with forms of community support that are sub-tle and variable over time. Marriage builds community, and marriage cere-monies serve to enact and affirm the requirement of consent, in the concep-tion of philosopher Stanley Cavell of marriage consent as an affirmation of engagement with the political order.

36

Marriage ceremony functions as a rite of citizenship, and that rite, in today’s world, is not limited by the meanings of marriage and citizenship in earlier eras, suggested by anachronistic quotations. A rite of citizenship transmitted from one state to another in a federalist system is symbolically effective as an affirmation of the norm of affiliation and consent. As we note below, our post Civil War idea of citizenship is not, as a conceptual matter, tied exclusively to the state of residence. Enactments that confirm citizenship gain symbolic meaning from the intent of the parties and from the extra stamp of approval, or imprimatur, of a state in a federalist system. Marriage is a citizenship rite that, in a nation bound together by the shared national citizenship of its population and the common social spaces opened up by social networking on the internet, is moveable across state lines.

But that feature of marriage ceremo-ny—its power at enacting consent as a basis of political affiliation—calls upon an ideal of wider access, not narrower. It gathers its widest social meaning from more occasions for performances of affiliation and commit-ment, not fewer.

No one captures better than Hendrik Hartog the inherited meaning of marriage and the radical discontinuity in meaning. He explains that we have marriages that feel to us much like those of our parents and grandpa-rents and yet:

Nineteenth-century marriages were not the same as ours, in part because nearly everyone began their marriages committed to an understanding that their marriages were, definitionally and factually, for life. Their marriages were not the same as ours because their marriages were constructed in part out of a received legal ortho-doxy, call it coverture, that gave a husband power and a wife protection, that united them in theory, and insisted that they adopt distinctive identities in legal practice. Their marriages were not the same as ours, as well, because they lived their mar-riages in a decentralized federal polity with many jurisdictions, in which there were many small variations in the marital regimes and large differences in the rules of exit.

35. Id. at 211-15. 36. STANLEY CAVELL, CONDITIONS HANDSOME AND UNHANDSOME: THE CONSTITUTION OF EMERSONIAN PERFECTIONISM 105 (1988).


But their marriages were like ours because we, like they, remain gripped by a sense of the centrality of marriage for an adult life.37

Our vision of marriage ceremony as a critical enactment of citizenship lands in an intersection of history that positions marriage both with the great honor that we accord it and with a freighted history of marriage licensing as a form by which states once apportioned citizenship to some and withheld it from others, with states permitted an insularity unmediated by forces that eventually yielded a large degree of convergence in marital regimes. Kris-tin Hass provides a review of the landmark book by the late Professor Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America. The book, published in 2009, received many honors in the history profession; the book gave fresh meanings to a history we thought we knew and yet, under the force of the deep archival research and interpre-tive insight of Pascoe, found strange and disturbing. Kristin Hass empha-sizes the way that this history, unearthed and interpreted by Pascoe, controls some features of cultural citizenship today.

The DAR is a citizenship-celebrating society that affirms and awards a claim about the formation of the nation by the ancestors of the members. In her review, Hass draws on her own forthcoming book, Sacrificing Soldiers, to highlight how the DAR instituted a requirement of proving the birth legi-timacy of the line by which one claims membership only when African-Americans began to apply for membership. Such a rule neatly excises the history in the nation’s formative moments of those who were excluded from legal marriage. In this way, the historic uses of marriage licensing as a means of awarding and withholding citizenship remains with us in defining who is in and who is out. Hass refers to what the DAR confers and polices as “cultural citizenship.”

Despite this history, we do not adopt the rejectionist view of marriage preferred by some who convict it of both a misogynist and a racist past, of providing a present venue for private injustice and domination, and for enabling public exclusions. Rather, we see in it the great meanings about commitment, consent, mutual protection, and solace it has always carried as it has evolved over time. As Hartog recognizes, marriage retains a hold on our imagination about creating our adult lives. Marriage allows us to create a private world into which there are public glimpses. To paraphrase Hartog, our marriages belong to us.38

But first we seek public affirmation for our private creation. E-marriage is a means of sharing the wealth of citizenship ritual more widely than is possible with the geography-bound limitations we now accept with little thought. The happenstance of our colonial history leaves our twenty-

37. HARTOG, supra note 12, at 311. 38. Id. at 312.


first century society of tremendous mobility, technologically advanced communications across distance, and, despite these changes, marriage tour-ism, committed to a mythical tie to locality as the source of community oversight of the moment at which a marriage becomes official.

Bryan Wildenthal generously allows us a glimpse of his marriage, in-cluding the challenges he and his husband, Ashish Agrawal, faced in attain-ing public acknowledgment, with family participation, within the geograph-ic metes and bounds of California during the brief period of state-authorized marriage. His family and others of us happy enough to know him see in Bryan a unique combination of passion for justice, and since they met one another, for Ashish as well, in combination with an elevated sensibility that leads him to a disinterested concern for sound policy and for careful legal analysis without allowing a preferred result to interfere with his judgment. In his paper for this symposium, he admits to fantasizing, though not com-ing close to doing it, about retaliating in kind against Prop 8 supporters who tore down the “No on 8” road signs he and Ashish put up.39 About mar-riage, Bryan is concrete and practical. (Professor Kuykendall here claims the privilege of first-name usage, accounted for in Bryan’s explanation of their common family roots in a small South Texas town.40

the ones abstracted from real life.

) He suggests it is the voters who supported Prop 8, presumably including patients of Ashish who may well have voted to divorce their doctor from his husband, who are

41 In his piece for us, Bryan admits to wounded feelings about Prop 8, especially on behalf of his “less jaded” hus-band innocent of “the cynical twists and turns of the law and politics.”42

For now, Ashish and Bryan go happily about in possession of their California marriage certificate and a copy of the California Supreme Court case holding that marriages like theirs, which took place during the period before Prop 8 ended marriage equality in California, remain valid under

Bryan, an initial skeptic about the soundness of e-marriage as an approach to marriage access and fairness, concludes his personal report with a san-guine assessment of its potential, which he thinks may lie not so much in creating a gradualist compromise, as in functioning as an “accelerant” of the on-going cultural conflict, perhaps hastening its ultimate resolution in favor of full marriage equality.

39. Bryan H. Wildenthal, A Personal Perspective on Marriage, Time, Space, Cer-tainty, and the Law, 2011 MICH. ST. L. REV. 229, 230. 40. Id. 41. Bryan tells us:

Opposition to marriage equality for gay people is ultimately an abstraction rooted in dogma, most often religious dogma. Such opposition has little or nothing to do with real people or practical needs; it is inherently impractical and divorced from the real world.

Id. at 233. 42. Id. at 230.


California law.43 Like the Lovings of Virginia, who kept their marriage certificate framed and hanging on the wall of their bedroom (which became a convenience for the sheriff who invaded their bedroom in the night and arrested them for violating Virginia marriage law), Ashish and Bryan are practical and visionary, all at once. They are part of the ebb and flow of history, and of the rich and evolving context of law and culture with which history presents us.44

The effect of importing a state imprimatur, even where there is local dispute about the effectiveness, is underlined by Jennifer Gerarda Brown’s nomination of dot.edu as the correct domain for e-marriage. After consider-ing whether e-marriage is a dot.com domain, enabling efficient formaliza-tion for practical and economic needs of an existing household, or a dot.org service for symbolism and solidarity, she concludes that the “rich expressive potential” of e-marriage ceremonies brought to a couple’s home state by remote technology is the creation of a dot.edu enterprise. A brief analysis of the potential of e-marriage as an economic undertaking for a state—a business proposition that enables the state to gain profit from the needs of remote consumers of a legal tie—suggests to Brown that e-marriage may not be an appealing dot.com model for any state. She acknowledges the unknown factors in terms of the level of demand and the possible viability of a “premium” fee structure that might, or might not, make e-marriage a workable business model. Like others, she concludes that the loss of the income from wedding tourism by states that have been first movers in au-thorizing same-sex marriage is a seeming disincentive, as a state would wit-ness other states reaping the harvest of the wedding industry dollars that are rightly theirs as the one of the only states offering marriage to same-sex couples. Brown and Ian Ayres have urged that heterosexual couples should reward states that authorize same-sex marriage by vacationing there, and consider not holding their marriage ceremonies in states that continue to withhold marriage authorization from same-sex couples.

45

That model is the dot.org vision of e-marriage. Certainly, we agree that states have the ability to take a political lead in offering marriage access, both practical and expressive, to more couples on a basis of equality norms that are widely shared throughout the culture. The payoff to the state for such political pioneering, and to the policy entrepreneurs who make it happen, is explored by Thom Little in his piece on the historic role in mar-riage equality of both Vermont and the Chair of the House Judiciary Com-mittee, Bill Lippert. We will discuss that further below.

43. Id. at 232-33. 44. See supra note 12. 45. Jennifer Gerarda Brown, E-Marriage: “Dot Com” or “Dot Org?”, 2011 MICH. ST. L. REV. 209, 211-13; IAN AYRES & JENNIFER GERARDA BROWN, STRAIGHTFORWARD: HOW TO MOBILIZE HETEROSEXUAL SUPPORT FOR GAY RIGHTS (2005).


A. Responding to Specific Critiques: Religion, Backlash, Empirics

We see three of the pieces as raising particular concerns, on various grounds, about our proposed innovation in marriage procedure. We are grateful for the ways in which the idea has been tested in this forum, allow-ing us to reflect upon potential flaws in our thinking and to clarify and re-fine our idea in light of the challenges it faces, both conceptual and practic-al. We thank our critics quite as much as we are grateful to those who find the idea appealing and generative of further ideas about marriage in a mod-ern procedural context. Our three most sustained criticisms concern the connection of marriage to religious tradition (Nichols), the potential for e-marriage to create backlash akin to a historic moment when Japanese pic-ture marriage, tied to immigration, caused an anti-Asian reaction (Abrams), and the “science” of our proposal in light of a parsing of our assumptions and the empirical basis of our construct as a workable execution of our stated or implicit goals (Mitchell).

Professor Nichols argues that e-marriage omits religion in its analy-sis—and that only an examination of marriage’s “pre-political, contractual, and covenantal” nature will likely succeed in ratcheting down the tension in today’s discussion about same-sex marriage.46 First, we are not sure what Professor Nichols refers to when he speaks of marriage’s “pre-political, contractual, and covenantal” nature. Because we do not believe that mar-riage existed in the state-of-nature, we cannot locate marriage’s pre-political nature. Unless you believe (and only believe) the old Anglican Book of Common Prayer’s claim that marriage was “instituted of God in the time of man’s innocency [i.e, that would be Adam and Eve in Eden],”47

Nor do we believe that religion offers a coherent or complete vision of marriage as a legal institution. As our article discusses, Roman marriage was a pure civil status in which religion played little, if any, part. Further, Christian marriage as we know it today first emerged in the early Middle Ages, in a specific political, legal, and economic context. The Biblical vi-sion of marriage seems quite alien to modern standards. It was polygamous; with the exception of Isaac, the Patriarchs all had more than one wife. It was not completely sexually faithful, as with Abraham’s offering of Sarah to Abimelech king of Gerar. Indeed, the marriage was, at times, celibate, for in many Christian traditions Joseph and Mary were celibate.

marriage’s social and political nature is inescapable.

46. Nichols, supra note 12, at 195. 47. THE BOOK OF COMMON PRAYER: ADMINISTRATION OF THE SACREMENTS AND OTHER RITES AND CEREMONIES OF THE CHURCH ACCORDING TO THE USE OF THE CHURCH OF ENGLAND 171 (1662), available at http://www.vulcanhammer.org/anglican/bcp-1662.pdf.


Second, Professor Nichols states, “[a] second, and quite looming, problem is that the proposal barely mentions religion at all.”48

In picking out what aspects of social or religious marriage to recog-nize, however, United States civil marriage plays a unique role in (i) speci-fying which parts of the social and religious marriage the state will enforce, and (ii) normatively engaging dissenting views on marriage. Thus, for in-stance, a state’s refusal to recognize polygamous marriage both sets the boundaries of legally enforceable relationships and sends the strong mes-sage that the majority finds such relations normatively objectionable.

To the con-trary, our article contains extensive analysis of how marriage procedure developed from the influence of the Anglican Church and America’s unique history as a multi-religious patchwork community. We conclude this histo-ry led to a unique cooperation between state and church in marriage solem-nization. As we say in our paper, unlike in other countries, such as modern Israel or England under the Hardwicke Act, United States marriage exists (and due to our unique history always has existed) as both a social/religious and civil/legal ordering. Civil/legal marriage, therefore, exists in conversa-tion with religious/social marriage. But, due to the unique history of Amer-ican religion, they exist in different spheres.

In contradistinction to England, in which the Hardwicke Act only rec-ognized Anglican marriage (i.e., Jews, Quakers, and the Royal family were exempted but England refused to recognize Catholic marriages until well into the nineteenth century), the United States always has allowed any reli-gious group to solemnize marriage almost from its beginning as a nation—as our article shows. In other words, more than any other nation, the United States separated church marriage and civil marriage, allowing both to coex-ist because the state would recognize any religious marriage. To use Anita Bernstein’s framework, United States law creates a few (relatively inchoate) “marriage essentials” and then will recognize any religion’s marriage pro-vided it fits these essentials.49

From our perspective, then, religious marriage in the United States is different from its civil recognition. E-marriage is about expanding proce-dural access in civil recognition. Could such access affect religious mar-riage? It is unclear that better procedural access would have any effect on religious marriage. This is so for one basic reason: while the current system gives the several states the exclusive power of civil recognition, there is no relationship between religious communities and the states, which are now to some degree historical accidents.

50

48. Nichols, supra note

In other words, e-marriage’s disruption

12, at 200. 49. Bernstein, supra note 27. 50. At some historical moments, in “the varying schedules of particular state politi-cal environments,” certain churches played a role in “the politics of marriage and divorce reform.” HARTOG, supra note 12, at 12. But such sporadic political influence in an experi-


of state geographic monopolies should not affect religion, which is not con-nected or organized according to state jurisdictions. E-marriage allows reli-gious communities to define themselves without reference to state bounda-ries—which can only be a good thing from Prof. Nichols’s perspective. Tellingly, despite Professor Nichols’s lament that we do not discuss reli-gion, he has failed to provide any analysis of how precisely e-marriage would help, hurt, or affect religious marriage at all.

Indeed, our article explicitly points to covenant marriage as an exam-ple of a religious-inspired innovation to substantive marriage law that could use e-marriage to gain a greater impact and traction. This is an example of innovation that Prof. Nichols admires. Similarly, by allowing greater flex-ibility in ceremony, i.e., beaming in a childhood parish priest to officiate, e-marriage offers a more varied and expansive palette on which religion can paint its charming pictures.

Thus, we concede that e-marriage is about innovation in civil marriage procedure and is not much concerned with religious marriage. But that is a feature, not a bug. Unlike Europe in which marriage was purely religious (or, in France after 1804, purely civil51), U.S. marriage procedure has al-ways involved both the state and religion: the state licenses, the religion solemnizes.52

mental, even “playful” legislative process of trying out rules on marriage and divorce scarce-ly amounts to a structural tie between churches and state boundaries. See id. at 15 (describ-ing the “almost playful spirit of legislating” in the U.S., including on basic matters affecting marriage).

Our proposal allows couples to transcend the geographic boundaries of their state to identify with any group, religious or otherwise. Unless Professor Nichols can show some sort of essential relationship be-

51. MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 33 (1989) (“Unlike many other inno-vations of French revolutionary law, the compulsory civil marriage was carried forward by the Napoleonic Code of 1804.”); see also Civil Requirements for Weddings in France, WEDDINGS IN FRANCE.COM, http://www.weddingsinfrance.com/requirements.html (last vi-sited May 19, 2011) (“French law recognizes only the civil marriage.”). 52. Rep. Lippert provided the following comment in response to this feature of linguistic usage:

Just as an interesting historical side note. Vermont marriage law uses the term “so-lemnize” for a marriage, even when performed in a completely civil setting by a Justice of the Peace.

When we wrote the Civil Union law in 2000, we wanted the Civil Union law to be as parallel to Vermont marriage law as possible, but did change three words: “Civ-il Unions” instead of “Marriage”; “certify” instead of “solemnize”; and “dissolu-tion” instead of “divorce.” These were concessions in terminology that were made to avoid (unsuccessfully) having opponents of “same-sex marriage” feel that “their ‘marriage’ terms” were being appropriated by proponents of Civil Unions.

E-mail from Representative Bill Lippert to Mae Kuykendall (Jan. 7, 2011 3:59.51 P.M.) (on file with authors).


tween religious community and state identity, it seems as if he should wel-come our proposal wholeheartedly.

In her piece using a specific episode in marriage history, Professor Abrams argues that e-marriage may create a backlash against gay marriage. In a meticulously researched article, she examines the relationship between Japanese “picture” marriage and anti-Asian immigration sentiment. She shows that the picture marriage reinforced the narrative of uncontrollable waves of Asian immigration transforming, in an alien way, American socie-ty. She also examines proxy marriage. As our article is the first scholarly and original examination of this issue in forty years, we are gratified by her important research in this area.

Professor Abrams then draws a parallel between picture and e-marriages. Both provide a way “to gain access to a particular communi-ty.”53 They both implicate a fear “of invasion and theft of public benefits.”54 Just as mass immigration would threaten American society so “E-marriage could become a controversial and potentially polarizing symbol in the de-bate over same-sex marriage . . . [f]urther threaten[ing] [states’] autono-my.”55 Professor Abrams fears that besieged states would create a “back-lash” against same-sex marriage. In fearing backlash, she is joined by Pro-fessors Mitchell and Wildenthal.56

This type of historical argument both fascinates and eludes. Those who know no history are condemned to repeat it, says George Santayana, but Hegel, so it is said, wrote that the only thing we learn from history is that we learn nothing from history. Regardless of how one views such his-torical arguments, there are salient differences between e-marriage and pic-ture marriage that render Professor Abrams’s parallel questionable.

53. Kerry Abrams, Peaceful Penetration: Proxy Marriage, Same-Sex Marriage, and Recognition, 2011 MICH. ST. L. REV. 139, 164.

First, while the anti-Asian immigration and anti-same-sex marriage movements may share a similar rhetoric, as Abrams points out, there is a big difference: gay people are Americans living in America, not Japanese living in Japan. To the extent their e-marriage presents a threat, the mere presence of gay people in American communities present a “threat.” Surely, even an America in the midst of a culture war can tolerate such “threats.” Second

54. Id. at 167. 55. Id. at 168. 56. Our sense is that e-marriage can offer a gradualist approach to same-sex mar-riage, allowing it to become visible in many states, while providing some satisfaction to couples, without immediate transformation of all state family law legal regimes. For a theory of “small steps” in the process by which western democracies recognize same-sex marriages, see Kess Waaldijk, Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands, in LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS 437-64 (Win-temute & Andernaes eds., 2001), cited in WILLIAM N. ESKRIDGE, JR. & NAN D. HUNTER, SEXUALITY, GENDER, AND THE LAW 727 (2011).


and perhaps more responsive to Abrams’ point, a same-sex e-marriage per-formed within a state that does not recognize such marriage is transgressive and could induce backlash. Indeed, one might say it is protected political speech. But, such transgression, and its possible backlash, must be weighed against an existing background of hostility towards same-sex couples and considerable cultural struggle. The question is not whether e-marriage would produce a backlash; the question is given the existing background of existing social tension and backlash whether e-marriage would improve matters. It is not clear how historical analysis can answer that more subtle question.

Most fundamentally, while we support same-sex marriage, e-marriage as a concept is, in a sense, neutral on the matter. It is primarily a procedural reform based in jurisdictional competition and experiment. By making mar-riage more accessible, it allows communities to see what types of marriages work, and which ones do not. There are always costs in experiment and change, but, given the radical transformation of family life during the last fifty years and the sense that law and convention has not kept pace with the needs of the family, such experiment seems to us worthwhile.

Professor Greg Mitchell argues that the e-marriage proposal turns on three assumptions: (i) the existence of a need for greater access to marriage; (ii) the indefensibility of physical presence requirements; and (iii) the desi-rability of interstate competition and procedural innovation. He then ex-amines them for their “coherence and empirical defensibility.”57

1. The Need for Greater Access

The fol-lowing responds seriatim.

Professor Mitchell appears convinced, concluding that it is on “its own terms normatively defensible and empirically plausible.”58

2. The Indefensibility of Physical Presence

Professor Mitchell states that if there are “good reasons for their [states’] physical-presence requirements that C[andeub] and K[uykendall] ignore or fail to accommodate, then their argument for improving access to marriage law by permitting marriage at a distance is not likely to persuade legislators.”59

Professor Mitchell lists the good reasons for the physical-presence re-quirement. First, the risk of coercion and abuse seems greater with virtual

57. See generally Gregory Mitchell, Should it be Easier to Get Married?, 2011 MICH. ST. L. REV. 217. 58. Id. at 221. 59. Id.


ceremonies where there may be no in-person check on conduct or sincerity by persons not directly involved. This claim is far from clear. Thanks to technology, identity can be established quite well online. Banks, the IRS, and others conduct transactions worth billions of dollars every day on the internet.

As opposed to identity, coercion is somewhat difficult to address, par-ticularly because Professor Mitchell does not define what he means by it. If he means coercion working through social- and family-control mechanisms, e-marriage would neither exacerbate nor ameliorate the problem. Such me-chanisms, i.e., emotional and psychological pressure by family members, would work equally well in both virtual and real life.

If Professor Mitchell worries about someone with a gun lurking just beyond the computer video camera forcing a bride to say “I do,” this could be remedied with the requirement that e-marriage be performed in front of a notary—or even a requirement that a social worker meet with the prospec-tive couples. E-marriage, with its promise of jurisdictional competition, offers potential enhancements that can best respond to Professor Mitchell’s speculative concerns.

Second, Professor Mitchell posits that “in-person licensure and cere-mony requirements may serve as checks on impulsive marital decisions.”60 However, he concedes that our “alternatives designed to guard against im-pulsive or ill-informed nuptials under a distance-marriage regime, such as compelled exchanges of background information that could serve as substi-tutes for the precautionary effects of the physical-presence requirements” may work well enough to fill the protective functions of physical presence.61

Third and finally Professor Mitchell comes to a purpose of the in-state requirement that he argues is “directly at odds with the very idea of distance marriage.”

62

[r]equirement helps states to confine their particular marriage regulations largely to in-state residents—as may be the case with states authoring same-sex marriage that fear reprisals from other states with respect to reciprocity on marital law and other matters—and may help to promote a particular vision of marriage within the state, either as approved or disapproved by voters or as conceived by elected officials.

He argues that the in-person

63

Like Professor Abrams, Professor Mitchell fears e-marriage will cause “backlash” because it will disrupt these particular visions.

We are not convinced that the several states have “particular vision[s] of marriage within the state, either approved or disapproved by voters or as conceived by elected officials.” Or, at least, in a federalist system people

60. Id. at 222. 61. Id. at 223. 62. Id. 63. Id.


are aware that fellow residents of a particular state may have legal status that another state confers but which is not available in their home state. We live in a post-Dred Scott world.

There are numerous reasons to doubt the notion of the state as a repo-sitory of a vision of marriage, particularly one that must be untainted by contrary visions. Among these are the narrow majorities by which some states have rejected same-sex marriage. While such “majority-wins” resolu-tions can be and are dispositive of a state’s legal offerings to its residents in terms of marriage authorization, it cannot in truth be said to capture a vision of marriage that is constitutive of a community consensus. Carbone’s piece is a lucid description of localism in marriage visions, with a demonstration that a commitment to localism and community in marriage points toward still greater decentralization of normative input into marriage ceremony and visibility.64 Mark and Dante, with the community that supports them, are sources of normative input about the ideals of marriage in Dallas, Texas. Further, federalism presupposes interpenetration of state cultures and legal arrangements; keeping states pristine in the sense of being insular and sealed off from the culture of other states, and from the change that being part of a union brings with it is, in a real sense, a matter resolved by the Civil War.65

More fundamentally, Americans have always looked to non-state in-stitutions for marriage procedure. The “state” has historically played a mi-nimal and cooperative role. The state licenses, the church solemnizes. This is, of course, in distinction to England, which prescribed marriage formation quite explicitly, requiring all marriages to be solemnized pursuant to the rules of the Anglican Church. Thus, Americans never looked to the “state”

Particularly given the patchwork of community support for same-sex marriage, which does not align neatly with state geography, a fo-cus on states as a repository of a veto power over public affirmations about official marriage lacks grounding in the very values recited in support of state control: community-supplied support and local control over a key con-stitutive institution in civil society.

64. See Carbone, supra note 15, at 64. 65. For a useful analysis of the “locus of sovereignty” views of the Confederate states, see G. Edward White, Recovering the History of the Confederacy (VA. PUB. LAW & RESEARCH PAPER Ser. No. 2011-11), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1792594. The critical feature of the view was that, “There was no ‘national community’ of individual citizens; the rights of citizens were associated with their member-ship in local and state communities.” Id. at 35. The ultimate conclusion of the Civil War, which, among other things, repudiated the conception of state sovereignty that supported a legal right of secession, “relegate[ed] the government of the Confederacy to the American past . . . thereby confining it to oblivion.” Id. at 91. In his important piece on the federal Defense of Marriage Act, Larry Kramer emphasizes the same transformative meaning of the post-Civil-War reconstitution of the political basis of the Union. Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L.J. 1965, 1977 (1997).


as the location for a “theology” of marriage. Rather, more than any other Western country, they looked to religion and civic society. The state was primarily the helper, strengthening the ties these other institutions, and couples themselves, fostered and supported. Indeed, an examination of his-tory that exceeds the scope of this Essay shows how the formally religious ideas that invaded state-enforced marriage law—unity, “one flesh,”66—were often kept at bay in the lives of couples and softened by judges asked to apply them as part of the marriage regime.67

3. “The Desirability of Interstate Competition and Procedural Inno-vation”

Professor Mitchell argues that we ignore certain empirical facts and “open questions” in our proposal.68

We would respond that the numbers of covenant marriages are grow-ing, if slowly,

First, he points out that marriage com-petition already exists for types of marriage. People just have to travel to the states that offer different procedural and substantive rules of marriage. Further, with the exception of same-sex marriage, there seems little demand, as covenant marriage has few takers.

69

Second, while Mitchell argues that outside of same-sex marriage, most travel to other jurisdictions to marry “is probably motivated by factors other than the choice of law or barriers imposed by physical-presence require-ments (e.g., desires for destination weddings or to wed where one of the couple’s relatives reside).”

and simply because one experiment failed is not support for abandoning experiment. More fundamentally, Professor Mitchell underes-timates the role convenience plays in consumer decisions so that it is hard to predict how making interstate marriage available without travelling to the authorizing state will change marriage. The internet has existed for years but only achieved mass popularity when the worldwide web interface was invented. In exchange for the convenience of avoiding toll boths, individu-als allow governments to track their driving with “easy pass” electronic sensors. The convenience of credit cards accelerates spending. In short, convenience is a wildcard in human decision-making.

70

66. HARTOG, supra note

We would point out that many people for des-tination marriage remarry in their home jurisdiction because they do not trust the registration system in their exotic destination. With e-marriage, such efforts could be removed. E-marriage will enhance the reliability of

12, at 43. 67. Id. at 4-5. 68. Mitchell, supra note 57, at 219, 224. 69. Covenant Marriage: A Fact Sheet, NATIONAL HEALTHY MARRIAGE RESOURCE CENTER, http://www.healthymarriageinfo.org/docs/CovenantMarriage.pdf (last visited May 19, 2011). 70 Mitchell, supra note 57, at 224-25.


records and help different types of couples in different ways that are not always foreseeable.

Third, Mitchell claims we “ignore the remarkable evolution in marital dissolution laws across the nation in a fairly short time period (legally speaking) even with residency requirements in place.”71 We think it is im-portant to distinguish between massive social change, like the sexual revolu-tion and the widespread acceptance of divorce in the 1960s and early 1970s, from a reasoned development of the law, as one might find in corporate codes or model laws. Undoubtedly, marriage laws have reflected dramatic social change. But the fact remains that marriage formation law has changed little since the early part of the 20th

Further, Professor Mitchell voices concerns about our notion that ju-risdictional competition might offer procedural reforms that improve mar-riage, itself. Specifically, we argue that states might compel reliable infor-mation exchange in the form of credit history and criminal background ex-changes. We also suggest that states might present couples with a list of default prenuptial terms. We posit that if couples were forced to make ac-tive choices about dissolution and inheritance issues pre-marriage, those choices should be better informed than simply accepting state-chosen de-fault rules.

century.

Professor Mitchell, while conceding that such disclosures might pre-vent “fraudulent or less-than-candid courtships,” asserts that “these ideas do not get at the marital distress and inequitable bargaining issues that arise after vows have been exchanged and that, most importantly, are difficult to predict.”72 The consensus view among those who analyze the factors con-tributing to divorce seems to be that there is no “average divorce.” Mitchell argues that states, therefore, will not know what information to request. Somewhat contradictorily, he then states that “we do know risk factors as-sociated with divorce—youthfulness at the time of marriage, lack of college degrees, lower income and unemployment, prior unwanted children, a histo-ry of anxiety disorders, alcohol abuse”73—but concludes that “states are unlikely to regulate who can enter marriage on the basis of these factors.”74

So Mitchell essentially says that we do not know the reasons for di-vorce and states are unlikely to compel disclosure of the divorce risk factors for which there is social scientific evidence. We suspect that non-residents of the Isle of Laputa will find Professor Mitchell’s insistence on these stan-dards of social scientific evidence somewhat odd. As we state, no one knows what types of disclosure would be “best.” Rather, we point out that

71. Mitchell, supra note 57, at 225. 72. Id. at 226. 73. Id. (citing ALISON CLARKE-STEWART & CORNELIA BRENTANO, DIVORCE: CAUSES AND CONSEQUENCES 29-51 (2006)). 74. Id.


government compels disclosure in much smaller matters, ranging from ap-plying for a federal job to stock offerings, to allow people to make better choices. Surely marriage is as important as purchasing securities.

As Professor Mitchell concedes, disclosure in some instances is “no doubt” beneficial. The problem is that no one knows the ideal level of that disclosure. Professor Mitchell, therefore, should welcome new offerings, like e-marriage, that could provide a down-to-top, pluralistic approach to discovering the ideal level.

As our article discussed, there is a role for government to mandate disclosure because serious signaling problems prevent couples from acting on their own. If a fiancée were to ask her fiancé about his criminal record, that would hardly signal trust (which, we remark, may well be one feature of marriage that is vital and that the state can support by asking hard ques-tions the couple rationally may sidestep posing). Just as this signaling prob-lem is blamed for the paucity of prenuptial agreements, this signaling prob-lem likely interferes with the disclosure between prospective spouses. It prevents them from making decisions with an optimal amount of informa-tion.

More concretely, the types of disclosure government can cheaply pro-vide, and with which our articles suggests states experiment, relate to many things on Mitchell’s social scientific list of threats to marriage. For in-stance, giving prospective partners access to tax returns would provide in-formation about lower income and history of unemployment.

Further, the types of disclosure government can cheaply provide, and with which our articles suggests states experiment, involve matters about which people universally have an interest—with or without the approval of social science’s limited tools. Your prospective spouse’s criminal record impacts your personal physical safety. Your prospective spouse’s credit history could affect (at least in community property states) your personal assets should your spouse go bankrupt. Tax history points to financial lia-bilities and could uncover criminal behavior. Many reasonable people, with sound justification, would want this information even without social scien-tific regressions demonstrating their importance to marital success. Given the signaling problems inherent in asking, states should experiment in find-ing workable disclosure regimes.

Finally, Mitchell contends that e-marriage creates a selection problem. “C[andeub] and K[uykendall] overlook the real barrier to implementing what they see as ‘better’ (i.e., stricter) marriage regulation in the form of the adverse selection problem: the people these stricter regulations target are the very people who will be motivated to avoid such regulations.”75

75. Id. at 227.


In assuming that people (presumably he means “couples”) with skele-tons in their closet will flock to low-disclosure jurisdictions, Mitchell over-looks the subtle, and interesting ways, that a menu of jurisdictions with dif-ferent disclosure regimes would work. Couples would not decide together to use a particular jurisdiction. Rather, there would be a negotiation. One member of the couple would say “let’s use X jurisdiction to get married.” That opening offer is quite revealing. If one prospective spouse suggests a high-disclosure (or low-disclosure) jurisdiction, that suggestion reveals a desire to show the records (or hide them). Given that people with nothing to hide would no doubt choose high-disclosure jurisdictions to demonstrate their own worthiness (assuming equal cost), we believe that it is certainly possible that jurisdictional choice for disclosure will allow more informed marriages. There will be a pressure for each prospective spouse to signal worthiness to his or her partner by selecting a high-disclosure jurisdiction. Whether this pressure will create a race-to-the-top is hard to predict, but it does suggest that Professor Mitchell’s predictions need some empirical sup-port and cannot be accepted on mere a priori grounds.

B. Concluding on a High Note

We were greatly honored at the symposium by the attendance of sev-eral interested legislators, and most especially by the Honorable Bill Lip-pert, Chair of the House Judiciary Committee in Vermont.76 In recognition of his historic role in marriage history in the United States, and in an aware-ness that the scholarly literature would benefit from a documentation of the way in which Vermont became an innovator in marriage law, the Law Re-view followed the symposium by arranging for Thom Little, an expert on legislative processes and on state legislatures, to write an essay about Rep. Lippert’s historic role. The essay is based on archival research and contem-porary interviews of Vermont legislators and other observers present during the 2000 and 2009 policy debates and legislative action affecting the rights of same-sex couples to receive official recognition of their marital ties.77

76. Other legislators and officials in attendance were Hon. Karla L. Drenner, Ph.D. GA State Representative; Hon. Marko Liias, Rep. WA Legislature; Hon. Jason Lorber, Rep. VT Legislature; Mr. Aaron Nash, Assistant Clerk Maricopa County, AZ.

The value of such an effort at recognizing and analyzing legislative history is dual: (a) giving due honor and recognition to the work and persistence of Bill Lippert under deep stress in the backlash of 2000/2001 and in the more supporting but challenging environment of 2009 and to his striking generos-ity of character; and (b) sketching one answer to the standard views in the “public choice” economics literature about the creation of legislation, that

77. Thomas Little, Bill Lippert and Civil Unions: A Policy Entrepreneur in the Right Place at the Right Time, 2011 MICH. ST. L. REV. 237.


is, the common sense and also theoretical objections raised in this sympo-sium that no state will have the motivations to enact e-marriage.

Little brings attention to the influence a policy entrepreneur can have on advancing a cause.78 The qualities that a committed legislator can bring to an issue are “passion, persistence, and resources.”79 These are qualities that Representative Lippert brought to his long-term goal, once he was elected to the Vermont legislature, of bringing gay and lesbian Vermonters into the embrace of “‘a fully just and welcoming community.’”80 Lippert’s words are telling and indicative of the force of his leadership. He speaks in broad terms of justice, warmth, and community. While never shy about revealing his own gay identity, he transcends the usual ideas about identity politics. The symposium gathering was privileged to witness his personali-ty, at the same instant unassuming and powerful, quiet in manner and like a trumpet in effect, civil but unyielding. He speaks as a gay man using a voice shaped by training as a therapist and immersion in the task of listen-ing, persuading, and legislating for all Vermonters.81

As Little’s essay explains, the legislature of Vermont, after the Ver-mont Supreme Court held that marriage equality was a constitutional mandate but could take different forms, had options. One was not to act, leaving final resolution of Vermont marriage law to the Court, which re-tained jurisdiction over the case. The legislature could have avoided the problem by doing nothing, and it could have delayed the matter by creating a commission to study it. Instead, a part-time legislature guided by a com-mitted activist for gay rights and for fair and just treatment of citizens, un-dertook to shape a solution to the constitutional mandate in the cultural moment in Vermont. Legislators voted for a civil union law with full legal equivalence to marriage, except in name. They acted after confronting an-gry constituents in Town Meetings, some described as “scary.”

82 Many legislators who voted to pass civil unions paid a price at the polls, losing their seats in a voter backlash against their vote for marriage rights.83

The legislative action in Vermont provides two lessons about legisla-tive incentives. First, legislators in Vermont took action, which they could have avoided by allowing the blame for a potentially unpopular change to fall on the Court. They looked past personal self-interest to continue a Vermont tradition of “leading the way on social issues.”

84

78. See generally id.

Second, they

79. Id. at 243. 80. Id. at 243 (quoting Bill Lippert: Founder and Senior Foundation Officer, SAMARA FOUNDATION OF VERMONT (2011), http://www.samarafoundation.org/ about_sub02c.html). 81. See generally Little, supra note 77. 82. Id. at 241. 83. Id. at 249. 84. Id. at 247.


acted with awareness that their action would affect not just Vermont, but would “‘change[] the landscape of our country.’”85 And, indeed, while Vermont legislators were primarily voting for Civil Unions to establish le-gal recognition for Vermont gay and lesbian couples, subsequently, most of the civil unions performed in Vermont were done for visitors who eagerly travelled to Vermont.86

Thus, a view of all fifty of the state legislatures as models of the legis-lative process as a pure economy of measurable gain or loss accruing to the state by the enactment of laws is incomplete in accounting for the sources of disinterested legislative innovation for country-wide benefit. As Little ex-plains, some states have features that can make them likely “first adopters” of socially novel legislation.

Even if such visitors spent money in Vermont, that is surely not what motivated Vermont legislators as, despite facing angry constituents, they risked sacrificing their own political careers by voting for civil unions: legal recognition of same-sex couples for the first time any-where in the United States.

87 Vermont lacks some of the standard metrics used, but benefits from a model of civic engagement abetted by its small size, willingness to experiment to influence other states, and pride in a tradi-tion of social justice. Indeed, Vermont has a history of seeking wide influ-ence, as Little notes, having declared war on Nazi Germany and demanded in 2008 that President Bush end the Iraq War.88

Vermont is unique but in a country of fifty states not necessarily alone in pride and ambition. Long ago, believe it or not, Connecticut, Indiana and South Dakota led the way as divorce havens.

89 The reasons for it may have varied over time, often having a mercenary element, but necessarily mixing with ideas about a need for couples to end marriages as a matter of law when their legal tie was no longer a marriage in fact. In fact, divorce-haven states were doing a favor to states that wished to maintain a rigid rule against divorce and remarriage, and could more readily do so if some states enabled couples to escape onerous ties to one another.90

85. Id. at 250.

Within federalism, there were implicit arrangements by which one state could provide services for another state’s citizens, thus relieving the second state of the need to resolve a clash between forces of conservatism and the pressing needs of

86. Id. Representative Lippert commented as follows on the benefit to Vermont of the enthusiastic response by out-of-state couples to the enactment by Vermont of Civil Un-ions: “Visitors from out of state often use Vermont as a ‘destination wedding’ location, and we hoped, accurately, that Vermont would also benefit economically from Vermont becom-ing a Civil Union ‘destination’ as well.” E-mail from Representative Bill Lippert to Mae Kuykendall (Jan. 7, 2011 3:59.51 P.M.) (on file with authors). 87. Little, supra note 77, at 245. 88. Id. at 247. 89. HARTOG, supra note 12, at 14. 90. Id. at 277-78.


many of its citizens. In similar fashion, and as imagined by June Carbone, states could create explicit arrangements that allow for states that wish to allow majorities to continue to restrict marriage to opposite-sex couples to continue to maintain that line, while leaving space for the needs of couples to garner by remote communication some of the emotional and even legal benefits of a marriage ceremony made available by another state’s provision of its marriage law.

II. CONCLUSION

E-marriage raises narrow legal issues: Can a state do it at all? What is its legal effect as a procedure? What is its significance for the recognition of same-sex marriages in hostile states? It also raises broad cultural ques-tions: Does e-marriage devalue marriage or create unusual new risks for impulsive “marriers?” Does e-marriage deepen and even reclaim tradition, or cheapen it? Does it widen access to official marriage, or accelerate the proliferation of privatized approaches to creating choices among the modes of union for an intimate pair? Would any state ever enact it, and, if one did, should it take a libertarian turn or a paternalistic detour? Does religion have any part in the analysis of how states should make their marriage laws available? Does the history of marriage suggest entrenched tradition or evolution over time and across jurisdictions? Is e-marriage a logical next step in the state’s role in facilitating and memorializing ceremonial mar-riage?

This symposium has defined and discussed the myriad issues embed-ded within our concept of “e-marriage.” The conversation about its form, its practicality, and its theoretical import is already rich, and we hope it will continue in many forums.

III. ADDENDUM—JUNE 28, 2011

On June 24, 2011, the New York State Assembly passed, and the gov-

ernor of New York signed, a law granting marriage rights to all couples without regard to gender. The State of New York will begin to perform marriages of same-sex couples on July 24, 2011.91

The change in New York law confirms that marriage access in the substantive sense is a value with increasing support among voters. The law

91. Nicholas Confessore & Michael Barbaro, New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law, N.Y. TIMES (June 24, 2011), http://www.nytimes.com/2011/06/25/nyregion/gay-marriage-approved-by-new-york-senate.html?sq=samesexmarriage&st=cse&adxnnl=1&scp=6&adxnnlx=1309795208-PGbIVvNGM/YeBD+lcQdjew.


also demonstrates to political leaders that legislators will expand marriage access, if courts fail to do so.92

The availability of marriage in New York will change the current market for marriage tourism by same-sex couples. New York couples will marry at home rather than travel to Connecticut, Massachusetts, or Ver-mont. Because New York has many features making it a tourist draw, other couples who may have chosen Vermont or Massachusetts as a destination for a wedding will instead choose New York.

93 The economic impact is estimated to be $210 million.94

One might well ask whether this unexpected development in New York alters the analytic framework for e-marriage, lessening the practical reasons to advocate e-marriage as a reform. Our answer is that e-marriage gains in importance. As the forthcoming article by Monu Bedi will explain in detail, the need for military families is greater than ever. For same-sex couples, the New York reform does not cure the lack of access by same sex couples to marriage ceremonies in most states. As one New York couple, who married in Massachusetts in 2010 commented: “We had to choose be-tween having our family present or getting married,” she said. “It’s an ob-stacle having to go to another state to get married.”

95

Practically, as a patchwork of states recognizing and not recognizing same-sex marriage develops, the logic of e-marriage should gain momen-tum. Couples in states that do not adopt same-sex marriage will feel the lack of family presence in their marriage ceremonies more keenly. States that resist adopting same-sex marriage may be more open to recognizing marriages authorized by other states, and may gradually relax the norms that cause them to refuse recognition to marriages that the residents contract under the law of another state. Already, in Dallas, the Dallas Morning News has agreed to alter its long-standing policy not to publish announce-

92. Those opposed to gay marriage maintain that they will roll back the progress, with hopes of so nationalizing the issue that they achieve a national ban through a constitu-tional amendment. Eric Eckholm & Katharine Q. Seelye, New York’s Approval of Same-Sex Marriage Spurs Opponents for New Fights, N.Y. TIMES (July 2, 2011), http://www.nytimes.com/2011/07/03/us/politics/03gay.html?_r=1&scp=1&sq=gay%20marriage%20spurs%20opponents%20into%20action&st=cse. 93. Kai Ma, New York City Hopes to Cash In on Gay Marriage Tourism, TIME (JUNE 28, 2011), http://newsfeed.time.com/2011/06/28/nyc-gay-marriage/ (reporting an esti-mate of 45,000 out-of-state gay couples travelling to New York in the next three years to marry and describing the efforts of NYC to promote New York City as a destination for gay couples to marry). 94. Carolyn Thompson, Wanna Cash In on Gay Marriage? New Yorkers Say ‘I Do’, USATODAY (July 3, 2011), http://www.usatoday.com/money/industries/2011-07-03-New-York-gay-wedding-sales_n.htm. 95. Elizabeth A. Harris & Adriane Quinlan, A Sense of Euphoria Settles on the West Village, N.Y. TIMES (June 24, 2011), http://www.nytimes.com/2011/06/25/nyregion/a-sense-of-euphoria-settles-on-the-west-village.html?hp.


ments in the wedding section about out-of-state gay weddings,96 showing that opinion leaders in a culture will “recognize” a status that the culture still will not sponsor. Las Vegas is said to be examining ways to attract gay honeymooners, even as the state maintains an official ban on gay mar-riage.97

As noted above, a state may do so for idealistic reasons relating to providing access to marriage for all couples who seek either the satisfac-tions of a ceremony at home, or the fully portable marital status, or both. Short of a Supreme Court mandate, e-marriage will be increasingly attrac-tive to same-sex couples and perhaps less discomfiting to others. E-marriage offers a means for states to ease into same-sex marriage over time--by seeing the ceremonies occurring in their state, and, perhaps, res-ponding by relaxing their laws to recognize marriages that they do not themselves authorize.

At the same time as states like Texas relax their vigilance against any manifestation of same-sex marriage as a cultural reality, and a city such as Las Vegas seeks to establish its franchise for gay wedding events, states that have enjoyed marriage tourism may give e-marriage close considera-tion.

98

The unexpected breakthrough in New York suggests that public opi-nion has softened toward same-sex marriage, yet as The New York Times underscores, states that are potentially open to authorizing same-sex mar-riage are not plentiful. “Twenty-nine states have constitutional bans on same-sex marriage, while 12 others have laws against it. And many of those states where support for same-sex marriage is high have already acted

96. Dallas Morning News Confirms That It Will Publish Same-Sex Marriage Under Weddings, DALLAS VOICE (July 1, 2011), http://www.dallasvoice.com/dallas-morning-news-confirms-publish-same-sex-marriages-weddings-1081987.html. 97. Vegas Officials Consider Marketing to Gay Honeymooners, SEATTLE PI.COM (June 30, 2011), http://www.seattlepi.com/news/article/Vegas-officials-consider-marketing-gay-honeymoons-1447170.php. 98. There is already some willingness by states to extend recognition to marriages, even though they choose to maintain their state marriage licensing law as being exclusively for opposite-sex couples. Wyoming provides a recent example of a state that accepts a prin-ciple of strong comity even while declining to authorize same-sex marriage. The defeat of a bill in March 2011 that would have denied all recognition to same-sex marriages contracted elsewhere, and the tenor of the debate about it, suggest there is room for states to recognize the marriages of newcomers to the state, and perhaps of their own residents who marry under another’s state’s laws. Legislators in Wyoming strongly articulated norms of fairness where rights have been granted by another state. “This bill does nothing more than to strip away liberties that have been granted by other states,” said Rep. Ruth Petroff. “We go from being the Equality State to the Strip-Away-Liberty State.” Aaron LeClair, Anti-gay Marriage Bill Defeated in Senate, LARAMIE BOOMERANG.COM (MAR. 3, 2011), http://www.laramieboomerang.com/articles/2011/03/03/news/oc4d6f23246ab30937837749.txt.


on the issue.”99

The adoption of gay marriage by New York takes off the marriage map one promising receiving venue for e-marriage to be offered by another state to gay couples. But the New York breakthrough heightens the case for federalism as a viable path for spreading marriage access and opens a new territorial logic for its sister states that have been hosts for marriage tourism to alter their mode of “selling” their marriage law.

As public opinion moves, barriers to a rapid relaxation of state hard-wired bans on same-sex marriage, at least for initial state authori-zation, are strong. For same-sex marriage to become accessible, ceremo-nially and perhaps with growing substantive effect, to couples all over the United States, e-marriage remains an interesting and even promising avenue short of a Supreme Court resolution favoring same-sex marriage.

Professor Carbone has written astutely about the cultural division in the country between Red States and Blue States, and for this symposium she has offered a creative vision of e-marriage as a means to build a bridge be-tween blue states and urban blue islands in red jurisdictions.

Her vision of the immediate future in our federalist approach to mar-riage remains intact: “New York State generally and New York City, in particular, provided models for gay friendly jurisdictions that could not get same-sex marriage through the state legislature to use recognition of out-of-state marriages to support gay and lesbian couples. With adoption of same-sex marriage, New York will become a destination state, but the analysis of how to go about extending recognition will remain the same.”100

E-marriage has a role in shaping debates about marriage, states, and federalism in the years to come.

99. Nicholas Confessore, Beyond New York, Gay Marriage Faces Hurdles, NEW YORK TIMES (June 26, 2011), http://www.nytimes.com/2011/06/27/nyregion/for-gay-marriage-movement-momentumbutchallenges.html?scp=7&sq=same%20sex%20marriage% 20other%20states&st=cse. 100. Email from June Carbone to Mae Kuykendall (June 25, 2011, 3:58 P.M) (on file with the author).

Symposium Overview: Perspectives on Innovative Marriage Procedure

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