As the Supreme Court prepares to here DOMA and Prop 8 challenges this March, we should all reflect on the central question of the debate: What is marriage? I take the inquiry from the title of an article and a book by three great scholars, one of whom I have the pleasure of knowing personally.
So consider this as a kind of teaser.
The law of contracts requires parties to meet a high capacity requirement, attempting to secure a fair playing field for free private agreements. For instance, minors are presumptively not bound by their contracts, and an unfair term buried in pages of fine print might be tossed out on grounds of equity. The law of donative transfers requires that the gift-giver not only possess sound mental faculties, but also have the ability to understand the effect of the gift on his own financial well-being.
The law of wills requires a basic mental capacity, but is not as stringent as contracts. Thus, a person with early onset Alzheimer’s or other dementia may be able to make a valid will. An interesting example of this is Lee v. Lee. A man executed a deed and a will on the same day. The court threw out the deed because the man lacked capacity to make gifts, but upheld the will because evidence showed he was lucid when he wrote it.
Now comes marriage. Even a person legally incapable of making a will is capable of entering a marriage.
So here is the Rorschach test: When you look at a marriage, what do you see? Do you see a contract between freely consenting adults? Do you see a solemnization of warm affection? Or is it something else, less about autonomy (like a contract) and more about some other social good?
These can be controversial questions. As we will see in the coming weeks, much of the often hurtful conversation about who can get married is made more painful by skipping the important first question: What is marriage?