Rules of marriage reflect government’s view of good societal goals

While a Rhodes scholar at Oxford University, studying for two law degrees, Carolyn Frantz took a course in family law. It was a subject she found interesting, challenging and well worth pursuing. Now an Assistant Professor in the Law School, Frantz has focused her scholarship on family law and, specifically, marriage—an institution, she noted, that nearly 90 percent of Americans will be involved in at some point in their lives.

“It’s one of those areas of law where the most deeply held commitments of the government and the individual intersect, so it makes the interpretation of the law difficult, yet important,” Frantz said. “Marriage is a government institution that controls a very private practice. Ordinarily, the attitude within the government about deeply private endeavors is to allow you to do whatever you want, but marriage has a governmental form, which means the rules of marriage have to do something. They reflect what the government thinks is good for the government and good for you and numerous other societal goals.”

Frantz explained that the rules of marriage (with some notable exceptions such as gay marriage) are primarily about property rights. She said she believes most of the property rules are acceptable, but some—and particularly the exclusion from the marital estate in divorce of increased or decreased earning capacity—are “plain wrong. When people are divorced,” Frantz noted, “there is no way to systematically divide the ways in which one of the spouse’s career prospects have improved or not, which almost always works a hardship, most seriously for a stay-at-home parent.”

Frantz, who has clerked for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit and U.S. Supreme Court Justice Sandra Day O’Connor, has recently published an article she co-wrote with a colleague at Tel-Aviv University. The article, which appeared in the Columbia Law Review, proposes an ideal for the institution of marriage—marriage as an “egalitarian liberal community,” where “community” refers to the sharing of property without claim to individual entitlement, constrained on the one hand by equality, especially gender equality, and on the other by autonomy, meaning the freedom to exit the relationship. They argue that contrary to the common assumption, these goals can all be accommodated and can actually reinforce rather than undermine one another.

“We tried to conceptualize the elements of what a lot of people think is a good marriage,” Frantz said. “The old school argues that because marriage is communal, you cannot talk about gender equality because then you necessarily give up ideas of sharing, giving, loving and so forth. But because marriage has been a tool of oppression, marital property law must strive to achieve equality between the partners. No-fault divorce has been criticized because marriage is traditionally thought to require permanence, but this expansion of a spouse’s right to exit is necessary to protect autonomy within marriage.”

Frantz said she finds it interesting that not only is marriage a state institution, but for the majority of couples, it really matters to them “that the government says you’re really married.” She said a Scandinavian trend is toward partnerships that are not actually marriages. Frantz said this may require a more refined set of rules to provide two people with options when they intend to be profoundly sharing a wide range of things but do not actually need something to be called marriage to make their relationship work.

“Marriage could be a purely religious institution,” Frantz said, “but people seem to want it to have the government’s legal stamp. And the legal institution triggers specific social norms and sanctions that say to the world, ‘If you see me out with this person, look at us differently.’”