John Witte and Joel A. Nichols, More than a Mere Contract: Marriage as Contract and Covenant in Law and Theology (2008). University of St. Thomas Law Journal, Vol. 5, p. 595, 2008. Available at SSRN: http://ssrn.com/abstract=1292998
In 1841, the American jurist Joseph Story noted that marriage is something more than a mere contract. Justice Story’s writings embody an American common law refrain, namely that marriage is at once a contract and something more. This Article details the historical roots of that common law tradition. The history stems mostly from the Christian tradition, but also has antecedents and analogues in Jewish and Islamic teachings. All of these traditions have long taught that marriage is at once a contract (ketubah, pactum, and kitab) and more than a mere contract. Marriage is an institution that is both private and public, individual and social, civil and religious, temporal and transcendent. Its origin, nature, and purpose lie beyond and beneath the terms of the marriage contract itself. The idea of covenant is emerging in Western law, theology, and ethics as a common inter-religious and interdisciplinary term to capture some of the higher dimensions of marriage.
Historically, the Jewish, Christian, and Islamic traditions found ways to reconcile the contractual and covenantal dimensions of marriage, but American law today juxtaposes them and has moved much more toward a straight contractual model. In all but three states, parties who wish to marry must choose the state’s contract marriage option. In Louisiana, Arkansas, and Arizona, though, parties may choose contract marriage or covenant marriage, which has tighter marital formation and dissolution rules. But even in those three states, there is not yet a robust legal appreciation and reification of some religious covenantal notions of marriage (and current conflict of laws rules do not favor the enforcement of covenant marriage laws in inter-state disputes). Ultimately, a fuller legal response may well be necessary to recapture the multi-layered dimensions of marriage. America’s religious communities may need to draw upon and reformulate their own norms and resources, and American states, in turn, may need to think more seriously about granting greater deference to the marital laws and customs of legitimate religious and cultural groups that cannot accept a marriage law of the common denominator.
