Check out some of the great pieces from the Michigan State Law Review Symposium on “Modernizing Marriage.”
Kerry Abrams, Peaceful Penetration: Proxy Marriage, Same-Sex Marriage, and Recognition, 2011 Mich. St. L. Rev. 141-172
This Essay is a contribution to a symposium, “Modernizing Marriage through E-Marriage,” that focused on “E-marriage,” an idea developed by Professors Adam Candeub and Mae Kuykendall in their article Modernizing Marriage, 44 U. Mich. L. Reform 735 (2011). E-marriage, as Candeub and Kuykendall acknowledge, would be the latest instantiation of the ancient phenomenon of proxy marriage. In this Essay, I aim to complicate Candeub and Kuykendall’s claim that E-marriage would represent a positive step forward in the recognition of marriages by same-sex couples by providing a partial genealogy of proxy marriage in our country. In particular, the Essay offers some historical observations about how proxy marriage flourished for a time among immigrants to the United States and was then abolished by the National Origins Act of 1924. There are some striking parallels between E-marriage and these earlier forms of proxy marriage, and my hope is that the historical examples will provide us with a richer backdrop for understanding the complex legal and cultural dynamics surrounding proxy marriage. The story of how proxy marriage became popular and was ultimately banned as a basis for immigration tells us a great deal about marriage’s cultural valence in times of social upheaval.
Anita Bernstein, Toward More Parsimony and Transparency in “The Essentials of Marriage”, 2011 Mich. St. L. Rev. 83-139
Written for a symposium about marriage-related innovation, this article catalogs impediments to freedom of contract related to marriage that American judges and legislatures have put in the law and continue to impose. Although many of these impediments have become quaint, ‘defense of marriage’ statutes codified in the last fifteen years have made this interference worse. Marriage is a legal status, of course, and Status defeats Contract almost by definition. From a premise that the state ought to use its interference power sparingly, however, the article calls for more parsimony and transparency in the law of marriage: Constraints on freedom related to marriage should be kept to a reasonable minimum; to the extent they persist, these constraints ought to be intelligible.
June Carbone, Marriage as a State of Mind: Federalism, Contract and the Expressive Interest in Family Law, 2011 Mich. St. L. Rev. 49-82