Modernizing Marriage

This Article proposes to modernize the archaic procedures states use to authorize marriages so as to provide legal flexibility, promote efficiency, and enhance individual choice. Almost universally, states require couples’ presence within their borders, however briefly, for a ceremony. After considering the historical and policy rationales for this requirement and finding them either obsolete or incoherent, we propose that states offer marriages to those outside their borders. Such distance marriages could occur via video-conference, using the internet or even telephone, with readily available safeguards to prevent fraud. This simple reform would allow certain couples who cannot marry under local law to import the trappings of an official marriage ceremony in “real time,” as well as assure access to the legal tie for any couple facing a barrier of physical separation. Our proposal builds upon the historical and present-day precedent of proxy marriage and legal principles such as choice of law for multi-jurisdictional contracts and corporate formation. With this reform, states would be free to compete over marriage procedure efficiency and experiment with alternative regulatory goals or menu options, such as enabling greater disclosure about personal or health histories, permitting more restrictive prenuptial arrangements (as with certain states’ development of “covenant marriage”) or tying access to certain distance marriages to advance agreement to accept jurisdiction for marriage dissolution. Finally, our proposal would allow same-sex couples (and other couples unable to marry under their home jurisdictions’ laws) easier access to marriage authorization and the ability to perform wedding ceremonies before family and friends. Our procedural reform offers a gradualist approach to the controversies concerning the substantive rules of marriage, notably Judge Walker’s recent ruling declaring Proposition 8 unconstitutional.