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Abstract

This Article argues that civil marriage and democracy are inherently incompatible, whether assessed from a transcultural perspective that reduces them to their most universal aspects or a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than selfdetermining based on their own preferences; they effectively deprive their citizens of equality by establishing insidious status hierarchies. While some deprivations of liberty and equality are justified-for example, those offset by substantial benefits to social welfare-this Article argues that deprivations of liberty and equality resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a transcultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and hererosexist ideologies, whereas American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses. Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this Article argues that it should be abolished. It does not, however, propose (as some have) that the institution be replaced by a relatively analogous "civil union" regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, it would also enable states to allocate governmental benefits more appropriately. It should be emphasized that this Article applies only to civil marriage and does not propose to prevent sexual partners from celebrating their commitments through private ceremonies or dissolving their relationships according to the terms of private contracts.

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