ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, May 23, 2008

"Well, my hope is that someday it won't be called a contract; it will be called marriage."

Ellen DeGeneres to Senator McCain earlier this week, in an exchange that made McCain visibly squirmy. Her remark is apropos of my previous post concerning the marriage as contract rhetoric. Here's a transcript of their exchange:

DeGENERES: We're back with Senator John McCain, and so let's talk about it. Let's talk about the big elephant in the room. So -- by the way, I was planning on having a ceremony anyway this summer, even though it wasn't legal. But I feel that at least I get to celebrate my love. Then it just so happened that I legally now can get married, like everyone should. * * * And what are your thoughts?

JOHN McCAIN: Well, my thoughts are that I think that people should be able to enter into legal agreements, and I think that that is something that we should encourage, particularly in the case of insurance and other areas, decisions that have to be made. I just believe in the unique status of marriage between man and woman. And I know that we have a respectful disagreement on that issue.

DeGENERES: Yeah, I mean, I think that it's -- it is looked at -- and some people are saying the same -- that blacks and women did not have the right to vote. I mean, women just got the right to vote in 1920. Blacks didn't have the right to vote until 1870. And it just feels like there is this old way of thinking that we are not all the same. We are all the same people, all of us. You're no different than I am. Our love is the same.

To me -- to me, what it feels like -- just, you know, I will speak for myself -- it feels -- when someone says, "You can have a contract, and you'll still have insurance, and you'll get all that," it sounds to me like saying, "Well, you can sit there; you just can't sit there." That's what it sounds like to me. It feels like -- it doesn't feel inclusive...It feels -- it feels isolated. It feels like we are not -- you know, we aren't owed the same things and the same wording.

McCAIN: Well, I've heard you articulate that position in a very eloquent fashion. We just have a disagreement. And I, along with many, many others, wish you every happiness.

DeGENERES: Thank you. So you'll walk me down the aisle? Is that what you're saying?

McCAIN: Touche.

DeGENERES: Well, my hope is someday it won't be called a contract; it will be called marriage.

(emphasis added).

On the one hand, you have gay marriage advocates attempting to distill marriage to an issue of contract law, and with that, framing the debate as a simple matter of allowing adults to contract without bias based on gender or sexuality. (Bouley's view in my previous post). On the other hand, you have the anti-same-sex marriage view, which says that gay people don't need marriage rights, because they can cobble together marriage rights with contracts. (McCain's position, above). To which the the same-sex marriage advocates say: we don't want a system of ad hoc contract rights, we want the equal footing of marriage. (Ellen's position, above). Everyone seems to be throwing around contract in a way that is supposed to suit them, and I don't think it works for either side of the debate.

Marriage it seems is not a contract, but rather a system of statutory default rules setting forth the bare minimum of the parties' obligations and what should happen in the event their relationship sours. Many of the marriage laws can be contracted around. But, unless there is a trust fund to protect, the overwhelming majority of couples do not have contracts (pre-nuptial agreements) but, rather, they take on (and probably many of them unknowingly) the system of statutory default rules. Which undermines the analogy/ rhetoric about marriage as contract. But it also undermines the argument that same-sex couples can and should (in McCain's words) "enter into legal agreements." They don't. It is expensive, time consuming, unromantic... And this is where the equality arguments come in. It seems that the argument should be that same-sex couples should be permitted to marry not because marriage is a contract but because it is a system of statutory default rules. Otherwise, the law is essentially saying that committed gay couples have to take on the expense and hassle of bargaining in a way that committed straight couples do not.

By the way, maybe McCain should have just danced:

[Meredith R. Miller]

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It is kind of McCain to compliment Ellen DeGeneres on her eloquence in defense of gay marriage. It's too bad he can't be equally eloquent in explaining his belief "in the unique status of marriage between man and woman."

But McCain is not alone here, of course. Hillary Clinton and Barack Obama are on record as opposing gay marriage while supporting civil unions.

Here's Clinton: "Marriage has got historic, religious and moral content that goes back to the beginning of time, and I think a marriage is as a marriage always has been, between a man and a woman."

Here's Obama: "I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman."

Posted by: Jeremy Telman | May 23, 2008 8:34:27 AM

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