Two Models of Disestablished Marriage

Many theorists have recently observed that the response to the same-sex marriage controversy most congruent with basic liberal principles is neither the retention of the institution of marriage in its present form, nor its extension so as to include same-sex unions along with heterosexual ones, but rather the ‘dis-establishment’ of marriage. Less commonly observed, however, is the fact that there are two competing models for how the state might effect a regime of disestablished marriage. On the one hand, there is a ‘deflationary’ approach, on which the state ceases to confer marital status, but does remain in the status-conferring business. On this approach, the state would still bestow a certain ‘thinner’, more ‘neutral’ legal status – as it does when it creates civil unions, for instance. Call this the ‘Status Model’ of disestablished marriage. On the other hand, there is an ‘eliminativist’ approach, on which the state ceases to confer any sort of status at all – not even the thin or neutral status of ‘civilly-unioned’. There simply are no registered domestic partnerships. What there is, is contract law, and individuals entering into contracts for life-partnership – contractual arrangements which might assume any of a wide variety of forms. Call this the ‘Contract Model’ of disestablished marriage. In this paper, I explore the merits of these competing models. After briefly discussing what it means to speak of ‘disestablishing marriage’, and examining the case for disestablishment, I proceed to consider the advantages and disadvantages of each model. My tentative conclusion is that the Contract Model is the one that best instantiates cardinal liberal virtues.