What’s wrong with private civil union contracts?

Many opponents of same-sex marriage have argued that denying same-sex couples the right to marry doesn’t really burden the couples much: After all, the argument goes, the couples can get many of the benefits of marriage through private contracting, and the special benefits that they can’t get (tax breaks, mandated employer-provided benefits, and so on) are benefits that the state may properly reserve to those relationships that the state finds most beneficial.

I’m not quite persuaded by this argument, chiefly because I think that same-sex marriages are beneficial — maybe not precisely the same way that opposite-sex marriages are, but in a similar enough way that the two should be treated equally. But I do think the argument I mention above has at least some merit.

But now Virginia has enacted the following statute:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

This doesn’t just block courts from recognizing out-of-state civil unions, or creating special in-state civil union status. It also bars purely private contracts, if they “purport[] to bestow the privileges or obligations of marriage.” The phrase contract or other arrangement . . . purporting to bestow the privileges or obligations of marriage” is pretty vague, but presumably it would include, among other things, contracts to share property that will be acquired in the future, contracts obligating one party to support the other, wills that devise property to the partner, and so on — all benefits and obligations that some states automatically confer on married couples.

This strikes me as quite wrong. I realize that the law sometimes refuses to recognize contracts that are sufficiently harmful, for instance contracts to commit crimes, contracts to restrain trade, selling oneself into slavery, and so on. But this should be the exception to the rule, and something that only happens when there’s some serious likely social harm or harm to the contracting parties flowing from the agreement. What’s the harm of two people of the same sex promising each other that they’ll share property, or support each other?

The ability to make legally binding contracts is an important power that people have. It is the power to make binding commitments, and to rely on others’ binding commitments. It is the power to plan for the future with confidence — to defer short-term gratification today with the expectation that one will get benefits over the long term.

Contract law is premised on the recognition that this power is valuable both to the individual and to society (except in unusual cases) — and on the recognition that it is generally best to let people decide for themselves the proper terms of the contracts (again, unless there are persuasive reasons to the contrary) rather than have the government second-guess the promises they make, or limit the promises’ scope. I realize that the legal system has unfortunately eroded this principle a great deal in recent decades. But there’s no reason to erode it still further in this situation.

Thanks to Ron Najman and David Kaufman for the pointer.

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