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married is a status constituted by the law. In the flux of human behavior the law has marked out certain acts and attached certain consequences to them. To perform the acts marked out is to become married. To become married is to enter a state with legal consequences attached. Can the law create the category and attach the consequences without infringing on sexual privacy, freedom of association in the home, and the equality of individuals before the law?

To ask these questions may appear to call for an answer too obvious to argue. As sexual association takes a variety of quasi-permanent forms, so, it may be said, should the legal definition of marriage be extended and the benefits which once flowed from a ceremonial exchange of consent between one man and one woman be those of any pair or any combination of persons who elect to share a common life. The unique legal privileges of heterosexual monogamy, it may be concluded, are constitutionally obsolete.

If this obvious answer is correct, it must be given in the name of the Constitution. It would be good to understand the constitutional basis for it.

The Mystic-Moral Character of Marriage

Equal Protection is the rationale chosen by the Court for many of its decisions-Levy, Glona, Weber, Richardson, Gomez, Eisenstadt, Stanley, New Jersey Welfare Rights Organization and the second Food Stamps Case. Equal Protection is rightly considered the weakest of constitutional grounds. 59 Government acts by making distinctions in roles, in benefits, in burdens. Unless you suppose you are governed by idiots, you will suppose that there is usually a governmental reason for the distinction made. Unless you are hostile to the basis for the distinction, you can usually discover what the reason is.

The Court in its third phase has been peculiarly blind to the reasons which led Congress or the States to adopt measures whose effect is to benefit the married. An extreme example is the second Foods Stamps Case where Justice Brennan characterized congressional legislation as "wholly without any rational basis," and culled from the Congressional Record a remark of Senator Holland about "hippic communes" to explain the Food Stamp Act exclusion while overlooking the Conference Committee's clear expression of intention to prefer the married. 60 In less extreme form, insensitivity

59. Buck v. Bell, 274 U.S. 200, 208 (1927); compare the critique of Eisenstadt in Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 34-35 and 48 (1972).

60. U.S. Dep't of Agriculture v. Moreno, 93 S. Ct. 2821, 2826, citing 116 CONG. REC. 44439 (1970).

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to legislative intent pervades Eisenstadt and Stanley.

The law did not suddenly in 1971 begin to treat the married and the unmarried unequally. The law had always done so. If the Court now invokes the Equal Protection Clause, it is because the Court has come to feel that the traditional inequality is intolerable. Why that inequality is now felt to be intolerable is not be to explained by the Equal Protection Clause.

Privacy does not offer a better explanation of the Court's position. When the constitutional right to privacy was first announced in Griswold in 1965— located in Justice Douglas' expressive phrase, in the "penumbra" of several Amendments—it was a right to marital privacy.61 The state could not prohibit the use of contraceptives because the state could not invade what were described as "the sacred precincts" of the marital bedroom.62 The right of privacy was an offshoot of the holiness of marriage. The opinion of the Court, delivered by William O. Douglas, ended with a tribute to the institution. "Marriage," he wrote, "is coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred."63 It was the marital association, older than the Bill of Rights he accurately observed, with which the state could not tamper.

How quickly marital privacy became procreative privacy. How remarkably a right flowing from the institution of marriage became a barrier to the fostering of the institution. With what peculiar intensity William Brennan declared that if the right "means anything," it means the right of "the individual, married or single," to decide whether to bear or beget a child.64

The swift seven year evolution of a liberty so recently proclaimed and so vaguely located suggests that privacy is not at the heart of the Court's constitutional progress. Sexual intercourse and its consequences have been perceived by every earlier generation as social. The imperfect contraceptive technology of the present has not made intercourse less social in its effects upon the persons engaging in it or upon the persons conceived through it. If the Court now sees it as peculiarly private and, therefore, peculiarly exempt from social control, the reason is not to be found in the category the Court imposes on it. Why private? In the answer to this question may lie. the basis for the Justices' new position.

The answer may lie in the mythic-moral character of marriage. By mythic I mean ideas, non-demonstrable but not necessarily untrue of the

61. Griswold v. Connecticut, 381 U.S. 479, 483-84 (1965).

62. Id. at 485.

63. Id. at 486.

64. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

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nature of the cosmos in relation to the destiny of man. By moral I mean prescriptions for human conduct in terms of a good. In primitive societies, Mircea Eliade says, the stories of the sexual life of the gods project the societies' view of the cosmos; at the same time they provide paradigms of sexual conduct for human beings.65 In monotheistic Israel, Yahweh was a jealous husband who demanded the fidelity in monogamous marriage of his chosen bride, Israel. In the Christian community, Christ was the monogamous, faithful husband of his bride, the Church.67 The paradigm was that of male to female, female to male fidelity, in a fruitful union of perduring character. Marriage in Europe was given a legal structure corresponding to the paradigm. 68

Until the American Revolution in America, and until still later in England, marriage was created, ruled, and ended in accordance with ecclesiastical law. When secular courts adopted this religious institution, the adjustments were often awkward and inconsistent. The doctrines of recrimination and condonation in divorce law are notorious examples. The institution survived. Eighteenth century rationalism and nineteenth century agnosticism did not attack it. Challenges such as the Mormons' polygamy were local and squashable. The consensus was broad. Division of opinion on divorce appeared to be an exception, but divorce itself was a canonical term; the functional dissolubility of marriage was established in the Catholic Church before the Reformation.70 In practice, Protestants permitted divorce without welcoming it,"1 and Catholics frowned upon it while cooperating in it as lawyers and judges.72 The ideal of husband and wife united for life in a fertile union was general. A Connecticut Yankee like Chief Justice Morrison Waite could sound like Pope Leo XIII; a Massachusetts Puritan like Chief Justice Charles Rugg could speak like Cardinal Désiré Mercier and the bishops of Belgium.

71

65. M. ELIADE, COSMOS AND HISTORY: THE MYTH OF THE ETERNAL RETURN 2327 (W.R. Trask transl. 1959); cf. M. ELIADE, MEPHISTOPHELES AND THE ANDROGYNE: Studies in RELIGIOUS MYTH AND SYMBOL 206-07 (J.M. Cohen transl. 1965).

66. Isaiah 54:5-8.

67. Ephesians 5:22-32.

68. See NOONAN, POWER TO DISSOLVE: LAWYERS AND MARRIAGES IN THE COURTS OF THE ROMAN Curia xvii-xviii (1972) [hereinafter cited as POWER TO DISsolve].

69. See FOOTE, LEVY, AND SANDER, CASES ON FAMILY LAW 649-57 and 665-70 (1966).

70. Power To Dissolve 130-31.

71. E.g., Holyoke v. Holyoke, 78 Me. 404, 411, 6 A. 827, 828 (1886): "Remove the allurements of divorce at pleasure, and husbands and wives will the more zealously strive to even the burdens and vexations of life, and soften by mutual accommodation so as to enjoy their marriage relation."

72. E.g., Chief Justice Edward D. White, a Catholic, wrote the majority opinion in Haddock v. Haddock, 201 U.S. 562 (1906), premised on "the inherent power which all governments must possess over the marriage relation, its formation and dissolution ." Id. at 569.

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In the last half century, the consensus weakened and, in the last decade, disappeared. Under the combined pressures of the ideologies of population control and women's liberation the orientation of marriage to procreation was questioned. The marriage contract in a state such as California became less than any other contract: terminable, without penalty, at the option of either party.73 A basic rift developed between Catholics, conservative Protestants, Orthodox Jews, on the one hand, and religious liberals and secular agnostics, on the other, over family planning and population control by means of abortion.74 The notion that a paradigm based on the relationship between Christ and the Church should inform American law would now be incomprehensible to most Americans.

In response to the shattering of the consensus the Court has rejected discrimination between the married and the unmarried. The decisions of the last two terms are another chapter in the history of disestablishment, another milestone, their champions would say, for religious liberty. They are not explicable by the barren formula of Equal Protection. They are not dictated by the new and shapeless right to privacy. They are anchored, according to this analysis, in the most enduring of American constitutional traditions, the separation between religious orthodoxy and civil government. It is no accident that Justice Brennan in Eisenstadt rejects the legal metaphor for the married based on Genesis. The covert religious assumptions underlying the old consensus have made civil support for marriage intolerable. The state, it is concluded, must leave the field; each person is to be free to make his or her own sexual style as he or she is free to make his or her own religion.75

Marriage and Family: A Distinction Without Historical Difference This explanation of the third phase-the last phase, so it seems- -encounters one snag: the existence of decisions too recent, too magisterial, and too rooted in experience to be regarded as obsolete, and yet entirely contrary to the line of analysis advanced. The words approvingly quoted by William Douglas in 1946 in Cleveland on the barbarous un-Christian character of polygamy have an atavistic sound. The words of Hugo Black in 1971 in Labine on the social difference between a concubine and a wife have the flavor of the ante-bellum South.76 The words of Earl Warren in

73. The Family Law Act, CAL. CIVIL CODE, §§ 4506-4507 (West 1970).

74. Compare the positions in THE MORALITY OF ABORTION, (J. Noonan ed. 1970) and ABORTION And the Law, (D.T. Smith ed. 1967).

75. Compare the analysis of the Abortion Cases in Tribe, The Supreme Court, 1972 Term-Foreward: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1 (1973).

76. Cleveland v. United States, 329 U.S. 14, 19 (1946); Labine v. Vincent, 401

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Loving v. Virginia" and the words of John Harlan in Boddie v. Connecticut78, however, cannot be so irreverently dismissed.

In Loving, in 1967, the Court, after avoiding opportunities for a century, finally ruled that the statute of a state forbidding a black person to marry a white person was unconstitutional. The statute was unconstitutional because the racial classifications violated the Equal Protection Clause.79 The statute was also unconstitutional on another ground which Chief Justice Warren put as follows: Marriage is "one of the 'basic civil rights of man,' fundamental to our very existence and survival. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."80 The right to enter lawful matrimony could not be arbitrarily restricted because marriage was among the most important of secular liberties.

In Boddie, in 1971, the Court considered the petition of welfare recipients who found the $75 set as court fees for a divorce action in Connecticut more than they could pay. The Court eliminated the fees for persons in their circumstances. Divorce, Justice Harlan wrote, was "the exclusive precondition to the adjustment of a fundamental human relationship."81 When the means of obtaining it was denied to the poor, due process of law was denied. The central assumption of the decision was, as John Harlan expressed it, "the basic position of the marriage relationship in this society's hierarchy of values. . . . "82

Loving-Boddie reflect no doubt in the durability of marriage as specifically shaped by law. They take marriage as an institution which is entered through the law, which is a privileged status created by the law. No one reading these opinions could suspect that Richard and Mildred Loving or Gladys Boddie had an alternative they might successfully have pursuedto have asked the Court to abolish the invidious denial of Equal Protection to the unmarried and to invalidate the state's recognition of marriage. In Boddie, marriage according to law is a fundamental human relationship; in Loving, marriage according to law is a vital personal right.

Loving-Boddie gave cognizance to the hunger for lawful marriage of persons denied the possibility of entering it by law. Has that hunger vanished in the six years since Loving or in the two years since Boddie? Arc

U.S. 532, 538 (1971).

77. 388 U.S. 1 (1967).

78. 401 U.S. 371 (1971).

79. 388 U.S. 1, 12 (1967).

80. Id., quoting from Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

81. 401 U.S. 371, 383 (1971).

82. Id. at 374.