The American Spectator

br> The law of marriage, or more properly the law of divorce, does not require a permanent commitment to each other. The law of marriage does not dictate that any particular vows, or any vows at all, be exchanged at the commencement of the marriage. Any vows are purely aspirational. No court can enforce them and the vows can be broken with impunity. The spouses have the option, of course, to remain married until one dies since marriage, unlike other contracts with specific terms, is of indefinite duration. At the same time, they may freely, at their bilateral or unilateral option, dissolve the marriage. (Covenant marriage laws in a few states allow spouses to restrict the causes for divorce.) /p>

The only laws that are available to enforce a particular marriage are criminal laws against bigamy and civil laws, in about 10 states, retaining the historical torts of “criminal conversation” and “alienation of affections,” that is, grounds for a lawsuit against a third party for interfering with a marriage. Indeed, if the parties meet the minimal grounds for divorce, courts cannot deny a request for a divorce — even where a spouse seeks to avoid financial responsibility for an ailing spouse. (Some estate planners suggest that a spouse divorce an ailing spouse, even where their love perdures, in order to conserve the family assets.)

If a Martian studied the current law of marriage in the United States, without knowing how marriage is lived, the Martian would know practically nothing. As we have just discerned, the law governing who can enter into marriage is extremely minimal. The law has just six requirements: that (1) two (2) adults (with exceptions) (3) of opposite gender (heretofore implicit) (4) not related by blood (5) consent to marry, and (6) are not currently married to someone else. The law governing the termination of the marriage is equally bare. Whether the divorce is unilateral or bilateral, a court must grant it. No governmental body may initiate the termination of a marriage; (by comparison, the government may initiate the termination of a parental relationship with a child). And the grounds for divorce are minimal and easy to satisfy.

When our focus is solely on the law of marriage, gay and lesbian couples are simply two men or two women who meet the minimal requirements of the law for marriage (number, age, lack of kinship) who wish to marry. It is incorrect to state, as does the plurality opinion in Goodridge, that “same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another,” since civil marriage — the only type of marriage at issue in Goodridge and other cases on same-sex marriage — does not require this. Civil marriage has no obligations, no commitments, solemn or otherwise. By the law of marriage, almost everyone is eligible to marry and to remain married. They may marry for any reason for any length of time and under any living arrangements.

If we were to restrict marriage (or domestic partnerships) to those who love each other, wish to be intimate with each other, wish to share a common residence, wish to share financial resources, wish to have children, or desire to make commitments to each other, or any combination of these, then there would be a very large number of people eligible to marry of whom gay and lesbian couples are only a subset.

Point 2: Many Persons Ineligible to Marry Under Current Law Can Demonstrate Love, Intimacy, Common Residence, Sharing Financial Resources, Having Children, or Commitment

Our laws do not prevent unmarried adults from:

- loving each other;

- being intimate with each other (except in the rare instance when any laws proscribing fornication are on the books and enforced);

- cohabiting;

- providing financially for each other;

- having or adopting children; or

- being committed to each other.

Not only do our laws not prevent unmarried persons from such activity, many unmarried persons do engage in this activity. Many of these people cannot marry under the current law of marriage. Gay and lesbian couples are only some of them. Two additional categories of such people are immediately apparent: (A) sets of people numbering more than two, and (B) blood relatives.