More on marriage as a contract

Proponents of same-sex marriage were smart to cast it as a civil rights issue. However, if opponents of same-sex marriage are to have a chance in future battles, they would be wise to re-cast the issue as one of a contract involving three parties: the state and the two halves of the couple. Although marriage itself is not merely a contract, it can be helpful to think about the value of marriage to society in contract terms. For a more thorough understanding of the true nature of marriage, see this article by Jennifer Roback Morse. The state, by tradition, has decided to enter into contracts with couples including one man and one woman. The question is, does society now wish to enter into contracts with same-sex couples?

Consider these three states: California, Iowa, and Vermont. In California, the outcome of the referendum could be seen as the people declining to enter into contracts with same-sex couples. That is the laboratory of democracy in action. In contrast, Iowans were told by a court that they had to allow these contracts because a panel of judges bought the civil rights argument. Iowans are being forced to enter into contracts with same-sex couples. Even if there is evidence at some future date that society does not benefit from these contracts, the civil right to marriage has been established in Iowa. It will be much harder to change law made by a court than by a referendum or by legislation. Vermont took the legislative route, and they, too are an example of the laboratory of democracy. Vermont has the opportunity to change the law if the people, through their representatives, determine that conferring marriage on same-sex couples is not benefiting society, just as California has the opportunity to do the reverse. Unfortunately, Iowans are more tightly locked into a public policy of allowing same-sex marriages. In the future, other states should watch carefully what happens in Iowa and Vermont to see if they really want to expand their contractual relationships to same-sex couples.