ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, May 16, 2008

"It's contract law, marriage, that's all it is, contract law."

Charles Karel Bouley's reaction (at Huffington Post) to the California Supreme Court's marriage decision. Here's an excerpt of his reaction:

Mayor Newsom, I was wrong. I apologize. This morning, May 15, 2008 at 10am, when the California State Supreme Court said nope, no reason to ban gay marriage in California that we can see, I cried. I cried for all those in my community that were happy today. I cried because having fought to be recognized as a couple myself and changing the only laws we had at the time, AB 25 and AB 205 that granted SOME rights, changing them to recognize those that had wrongful death cases pending before the legislation, well, today was my victory also, Andrew Howard's victory (my late partner).

And it is. Andrew and I were the first gay couple on drive time radio on KFI Los Angeles. It was a big deal. Hasn't been done since, either, anywhere on talk radio to my knowledge. When he died, I saw marriage equality. Thousands of straight couples emailed in grief to say they felt as we were part of their marriage, and that we represented a normal couple to them. That's marriage equality. When the courts told me I couldn't sue, I said yes I can (when he died) and then did after changing law. That got media coverage and told people that the legislature and the courts favored granting rights to gays and lesbians.

Then Gavin made his decision, right or wrong, to grant licenses. And in the aftermath, yes, some bigoted states allowed their people and legislatures to put bigotry in their state codes. But this state, my state, Gavin's state, did the right thing. And as a jaded gay male of 45 years, I didn't expect it to. That's why I've stated I'm all for Civil Unions with the exact same benefits of marriage. So, I'm all for marriage, but with a different name. Why? Because I believe that's what is nationally obtainable in the short term why states fight out the marriage issue.

However, I'd be lying if I said today didn't feel good. Because while I would settle for Domestic Partnership, there's no reason for it. It's contract law, marriage, that's all it is, contract law. And just like you can't stop a person from entering a contract because they're black, Hispanic, a woman, etc., then you can't stop someone from entering the marriage contract based on gender. It's horrible for lawyers and judges, because in their legal hearts they know same sex marriage must be legal and available for all the couples that want it. But in their moral or religious hearts the vision gets cloudy. That's why we turn to the courts, to uncloud things. And when they do, as in today's case, they see that the law is in fact the law.

(emphasis added).

Is marriage really about contract law? Certainly, many New York cases describe marriage as a "civil contract." Or, is the description of marriage as a contract a metaphor that does not recognize the complexities of defining "contract"? (See Thomas Joo, The Discourse of "Contract" and the Law of Marriage). If it is a metaphor, is it an effective one for same-sex marriage advocates?

[Meredith R. Miller]

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