Why Marriage as a Private Contract is a Bad Idea

Marriage certificate. Image source.

Every so often, I hear people making the argument, "The government shouldn't be involved in marriage at all. If you want to get married, you can just make a private contract with your partner, that says whatever you want, whatever terms the two of you are agreeing to." (Sort of a libertarian argument.)

(This could also be an idea for polyamorous people, but I'm not sure on the details for that, so in this post I'll just use the example of marriage between 2 people.)

And every time I hear this, I'm like, oh this is a scary bad idea.

If we actually changed the laws so this would be the case, I think this is what would happen: Most people who aren't lawyers aren't really interested in writing a contract themselves. So, probably some lawyer would write a standard template for a marriage contract, it would be gender-neutral and completely equal between the two partners, and most couples would just use that, and not think about it much. 

And for the couples who did that, it would be fine. They would be equals, and have all the legal protections that are reasonable to have in marriage.

But here's another thing that would definitely happen: Conservative religious groups would tell their members, "You must NOT use this standard marriage contract. It is based on worldly, evil, sinful ideas about marriage- like the idea that you can marry someone of the same gender, or the idea that the husband and wife are equal, rather than the husband being the leader. It is a SIN to get married and use this contract! You must use our contract instead."

And the conservative religious groups would make their own versions of the marriage contract. It would say things like, the wife must submit to the husband. It would have a very short list of acceptable reasons to get divorced- most likely you would be allowed to get divorced if your spouse physically abuses you, or cheats on you, but other than that, no, you can't get divorced. Or perhaps it would say divorce is NEVER allowed, regardless. It would put restrictions on women- for example, saying a woman has to be a stay-at-home mom when the couple has kids. And it would have details on exactly what hoops a wife must jump through, in order to get help if her husband isn't treating her right- ie, first she has to ask their pastor for help, and go through counseling to find out why it's her fault that he's abusing her, etc. And maybe the husband would have veto power over his wife's decisions about medical care, access to birth control, her education, her job, whether she's allowed to have a bank account, etc.

Oh yeah, religious groups would DEFINITELY make marriage contracts like that.

And for the girls who grow up in those conservative religious environments, that would be completely normal to them. Of course they would plan on using their church's version of the marriage contract, not the standard one that makes the husband and wife equal. Of course they would. They wouldn't even see it as a decision, they would never consider the standard contract as an option. That's only for bad, sinful, worldly people who have been influenced by the evils of feminism.

Actually, a lot of the legal rights related to marriage are about divorce. For example, I've heard people give advice "If you're thinking of buying a house with your partner, and you're not married, don't do it. You should be married if you're buying a house together- because then if you break up, there's a standard process for how to fairly divide up the finances related to the house. If you're not married, it will be so ugly and emotionally distressing trying to negotiate that." Typically, the only time you need to use the law to force your spouse to do something, is if you're divorcing. If the marriage is good, then you will treat each other right, regardless of what your actual legal rights are.

And people don't enter into marriage expecting to get divorced, so they're not thinking about what legal rights they would have in that situation. No, when you're planning your wedding, apparently you're not supposed to think about that. That would be unromantic. I certainly didn't think about any of the legal implications when I got married. It was just, we love each other, we want to spend our whole lives together, so we get married. And not really thinking about what marriage means in a legal sense.

So it's good that lawyers have thought about this, and feminist activists have thought about this, and the laws around marriage are fair. (Or, at least not explicitly sexist...) It's a good thing no-fault divorce is an option. Because people who are engaged- the ones who really *should* be thinking about this- are *not* thinking about it, because society says if you love each other then none of those things will ever be a problem, and if you're thinking about "what legal rights would I have if we divorce" then you're not really committed to the marriage.

My point is, in the hypothetical world where the government is not involved in marriage, and people can make their own marriage contracts, people would just go ahead and use a template contract from some official source, rather than actually thinking about what it means for them legally. Most couples would use a standard contract that makes the two partners equal, without thinking about it, and that would be fine. But couples in conservative religious groups would use their religion's version of the contract, without thinking about it.

I was taught all sorts of things about how "God designed" marriage to work, in church, in Sunday school, from Christian books, etc. The wife is supposed to submit to the husband. The husband is supposed to be the leader. All of this is seen as completely normal, in the evangelical church. Of course I believed that- I was taught that as a Christian, I had to believe that. That's how God said marriage should work.

It's one thing to believe that. To be taught that in church. To be surrounded by people who all think this kind of sexism is completely normal. It's a completely different thing to be legally bound by it.

It's hard enough for a woman in a bad marriage in a conservative church. Everyone wants to tell her that it's her fault, maybe because she didn't pray enough, didn't submit to her husband enough, didn't have sex with him enough. It's hard enough finding the courage to reject that ideology and realize that what she wants actually matters. It's hard enough when all her Christian friends ghost her because of it.

Imagine if she is also legally bound to those beliefs. That's horrifying.

In a practical sense, I think most couples who have a sexist marriage contract (in this hypothetical) would still have a good marriage. If they love each other, and the husband is a decent human being, then he won't actually use any of those rights. So Christians would believe that those contracts are totally fine, because usually there aren't problems. A false sense of security. They would think it was fine, but it wouldn't be fine- because when it goes wrong, it goes VERY wrong.

I can easily see young, idealistic girls who just want to do their best to obey God, finding examples of marriage contracts that are *much* more patriarchal and abusive than what the average person in their church has. And listening to rhetoric that says if they're really following God, they'll use the extremely patriarchal versions. Like me in purity culture- when my parents (who had life experience and common sense) told me some of the teachings of purity culture weren't right, I didn't listen because the purity books all said that this is the way to really follow God. I can easily imagine a 20-year-old girl getting married, choosing an extremely patriarchal marriage contract, and other Christians warning her against it, but she of course doesn't listen. She believes that if she got married with a contract where she had rights, that would mean she didn't really love her husband or have faith in God.

I can also imagine a young woman reading through her church's sample marriage contract, wisely thinking through what the actual implications are, and asking questions about why on earth her husband would have those rights to control her life. And the church people would act like it was bad for her to even ask about those things- of course her husband would never use those rights in a bad way! She shouldn't even be thinking about that! Just like when I asked church people what "submit to your husband" really means, and they all insisted "don't worry, the husband loves the wife and will make good decisions!" Okay... maybe... hopefully... but man I wouldn't want to be legally bound to that.

At weddings, people recite marriage vows which contain all sorts of promises to each other. But wedding vows are a very different thing than a legal contract. Wedding vows are about communicating the things you intend to do, because you love this person and you want to do those things for them. A legal contract is about what you'll be forced to do, even if in the future you decide you don't want to. Would you want lawyers parsing the exact words of your wedding vows, and arguing about whether your behavior in the marriage matched the vows or not? Would you want to have to present arguments in court, to try to convince a jury that your spouse didn't keep their vows?

(I've attended weddings where the bride's wedding vows included "submit to her husband" and the groom's wedding vows included "lead his wife." Imagine actually being legally bound to that.)

So, to sum up: It's a bad idea to allow everyone to make their own private marriage contracts, because in conservative religious groups, young people will be taught that they need to use their own group's sexist version of the contract. And of course they'll accept it without question, like I accepted the evangelical church's bad teaching about marriage. Wow, I'm glad I wasn't legally bound to it. When I decided I wanted to leave, I could leave.

But, unfortunately, I have 3 examples of ways that churches really have used laws or contracts to control people or restrict their rights in marriage. These are real things- these are not hypothetical.

Example 1: Church covenants

There are churches in the US which require people to sign a contract if they want to become members. The contract is called a "church covenant" or "membership covenant." This has led to problems such as:

1. Someone no longer wants to be a member of the church, but the contract only allows them to quit for specific reasons, and the church leadership determines that their reasons aren't good enough, so they aren't allowed to quit.
2. A woman wants to divorce her husband (for example, because she found out he is a child abuser) but the church says that's not a good enough reason to divorce, and because of the "covenant" she signed, the church has the legal right to "discipline" her for divorcing her husband.
3. Or various other situations where a church puts someone under "church discipline" because the contract gives them the right to do that to members who are deemed to be "sinning."

Some links on this:

Wartburg Watch: Matt Chandler Proves That the Membership Covenant Is a Legal Document. 

Captain Cassidy: Church Discipline: Covenants and Contracts.

Matthew Paul Turner: Dear God, what is Matt Chandler thinking? 

No Eden Elsewhere: Before You Sign: What You Need to Know About Membership Covenants 

Todd Wilhelm: The Dirty Little Secret About Church Membership Covenants

And from me: Covenants. Because Future-You May Need Punishment. 

Do not sign one of these.

Example 2: Covenant marriage

So, this post is about a hypothetical world where conservative religious people enter into marriage contracts which don't have all the reasonable legal protections we have now. But, actually, this is a real thing that exists in 3 states in the US. It's called "covenant marriage" and wikipedia defines it this way:

Covenant marriage is a legally distinct kind of marriage in three states (Arizona, Arkansas, and Louisiana) of the United States, in which the marrying spouses agree to obtain pre-marital counseling and accept more limited grounds for later seeking divorce (the least strict of which being that the couple lives apart from each other for two years). Louisiana became the first state to pass a covenant marriage law in 1997;[1][2] shortly afterwards, Arkansas[3] and Arizona[4] followed suit. Since its inception, very few couples in those states have married under covenant marriage law.

Oh, look at that, if you live in Arizona, Arkansas, or Louisiana, you actually can enter into a marriage where you have fewer rights than a normal marriage. Yay religious freedom, or something...?

(I will note, though, that my hypothetical examples of conservative marriage contracts were explicitly sexist, but covenant marriage is not. In practice, though, because women are more likely to be victims of abuse, and women are more likely to be the ones filing for divorce, the practical results of covenant marriage would be disproportionately harmful to women.)

I first heard of covenant marriage at my church in college, when somebody in a Sunday school class mentioned it. He thought it was a totally great idea, and all Christian marriages should be covenant marriages. He said it meant that the couple couldn't just decide to divorce, they had to go through counseling first and try to heal the marriage. And I just nodded along because I had always heard people in church talking about how "these days people are getting divorced willy nilly because they are selfish, and that's the cause of all of society's problems" etc. 

Yes, I believe you shouldn't just immediately divorce if you have an argument. (But, does anyone actually do that, or is that just a myth that evangelicals are constantly repeating? I am skeptical.) I believe you should go to counseling and try to fix the problems and stay married. But here's the thing: If you're in a situation where one partner does not want to do that, and has to be forced by the law to go to counseling, well you're already past the point where the marriage could be saved. It doesn't help the situation at all, to force people to stay married. And, also, it's not safe to go to couple's counseling with an abusive partner- abusers are able to manipulate the therapist to make it look like they're not abusive. Sometimes, the victim just knows they need to get out of the marriage. They might not have evidence that will be able to convince other people that they have a "good enough reason" for divorce, but they know the truth, they know what they experienced, even if no one believes them. They know they need to get out. And being in a covenant marriage may force the victim to stay in a dangerous situation with an abuser.

It's one thing to teach people the general principles of how to solve problems in marriage, rather than get divorced. It's a completely different thing to make it an actual legal requirement. To have lawyers and judges butting into your personal life to debate whether what your spouse did to you is bad enough that you're allowed to leave them. 

The guidelines on how to have a healthy marriage are for people who want to have a healthy marriage. That's a good thing. Making it into a legal obligation, a "covenant marriage", would only affect the couples where one spouse isn't even trying to have a healthy marriage, and that is exactly the kind of bad situation where you need to NOT put more legal requirements on people. 

A post from Libby Anne: Jill and Jessa Duggar Have “Covenant” Marriages 

Example 3: Child marriage

Child marriage. Yes, this is a real thing that happens in the US. White American Christians think that child marriage is something that happens in foreign cultures in faraway countries- no, there are white American Christians right here pressuring their children to get married.

The majority of children who get married are girls. Sometimes they are marrying adult men, much older than them. Some states allow a child to get married with "parental consent" which really means the parents are pressuring the child into it, and the child doesn't have an actual choice. Because, if you're in an environment where child marriage is seen as an acceptable option, do you think that will also be an environment where a child saying no to her parents is an acceptable option? Hahaha, no.

And often, pregnancy is seen as a reason that we need to allow a teenager to get married. What on earth. Because, oh, wouldn't it be just terrible if a baby was born to unmarried parents. More terrible than a teenager being stuck in a legal arrangement that she's way too young for, apparently.

Girls who get married as teenagers are much less likely to complete high school or college. And if/when they realize they're in a bad situation and need to get out, it's so hard because they don't have the education or skills to get a job, and maybe they already have several children.

This is an example of religious groups pushing people into a marriage where they have fewer legal rights than in a normal marriage- because people under the age of 18 don't have the legal rights of an adult.

It's not something that happened in the evangelical culture I grew up in- the Christian groups which are pushing children into marriage are much more controlling and conservative than the evangelicals I know. But yes, my point is, if everyone is allowed to make their own versions of a legally-binding marriage contract, there absolutely will be very conservative groups pushing women into very bad marriages.

Some links:

Libby Anne: Louisiana Lawmakers Want to Marry Off Pregnant 15-Year-Olds 

Libby Anne: Virginia Reforms Troglodyte Marriage Law 

(And here's a link to the whole list of Libby Anne's posts on child marriage)

Washington Post: Why can 12-year-olds still get married in the United States?

The 19th: The 19th Explains: Why child marriage is still legal in 80% of U.S. states 

PBS: Child Marriage in America 

Politico: ‘Why Is Child Marriage Still Legal?’: A Young Lawmaker Tackles a Hidden Problem

And from me: All of the LOLs for this Sermon on "Marrying Young" (though this might not necessarily be about child marriage, just "marrying young," whatever that means)

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Conservative religious groups have a lot of very controlling teachings about correct moral behavior. When you grow up in that environment, all of those teachings feel completely normal, and it doesn't even occur to you that you could choose to do something different. (No, you've been taught that people who choose to do something different are bad, sinful, evil.) 

In particular, they have a lot of very harmful teachings about marriage. About how a wife has to "submit" to her husband, about what kinds of reasons are or aren't acceptable reasons for divorce. These teachings have very real harmful effects- if a woman realizes that her husband is not treating her right, and she needs to divorce, her whole church community will turn against her and blame her, and also she likely has a bunch of children she needs to provide for, and maybe she has no college education because she was taught that women don't need that. This is a very real thing that happens (for example, we see it in the Shiny Happy People documentary). Imagine how much worse it would be if these women were literally legally bound to those patriarchal teachings. If they actually literally don't have the legal right to reject those teachings and get out. Which is absolutely what would happen if every religious group was writing its own version of a marriage contract for its members to use.

I know that's what would happen, because there already are examples of Christian groups in the US using contracts and laws to control people. Church covenants, covenant marriage, and child marriage.

We cannot change laws to allow everyone to just make marriage whatever they want it to be, because conservative religious groups will make it into something very harmful, which their members will totally accept when they're young and in love and have no awareness of what it actually means.

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Followup post: On Marriage as an Immigrant in China

Related:

Covenants. Because Future-You May Need Punishment. 

I Can't Write Wedding Vows Without Thinking About Divorce

On "Unjust Marriage"