Special Relationships

There are relationships out there that may once have been contractual but now I suggest that they are properly viewed, at best, as three-party contracts and more properly ought no longer to be treated as contractual at all.  First-year law students will recall that at its fundament, a contract requires one party to make an offer of whatever terms that party wants, another party to accept that offer agreeing with those terms, and the parties to then exchange valuable consideration congruent with the terms of the bargain. 

Two relationships which are at the base of some of our most important social relationships are called contracts but I suggest to you that they really aren’t.  I refer, of course, to employment and marriage.

To be sure, the employment relationship has contract at its fundament.  I sell you my time for an agreed-upon rate, and you may then tell me what to do with that time.  We are both absolutely free to form or terminate the relationship at will and to include whatever terms of the relationship we wish.  Only:

• You may not refuse to form this relationship with me based upon my race, my national origin, my religious beliefs, my marital status, whether I have children or not, my gender, my age over 40, disabilities that do not absolutely bar me from performing the job, my age, or my advocacy or lack thereof of union membership and in a variety states around the USA, based upon my sexual preference, expression of political beliefs, prior military service or lack thereof, and countless other factors.  Thus, you cannot simply hire whoever you like to do whatever job is in question and thus your freedom to contract as you like is curtailed by law.
• I must prove to you my eligibility to be employed in the form of documentary proof of my citizenship and age. Again, you cannot hire whoever you like; the law curtails your freedom.
• I must provide you with my social security number so that you can withhold a fraction of the money you promised to pay me and pay it to the government instead.  Here the law curtails my freedom.
• The rate that we agree upon that you will compensate me for my time may not fall below a certain minimum.  Both of our freedoms are curtailed here, although I might like it.
• Under most circumstances, the time that I sell you may not exceed a certain maximum per day and per week, and if it does, the rate that you pay for my time increases.
• You cannot pay me when we agree, but rather must do so at least once every two weeks. Furthermore, you must pay me with a check and cannot pay me with cash or non-monetary consideration, even if we agree otherwise.
• You must provide me with not just the money that we agree upon but also certain mandatory benefits, primarily accounting and prepayment of taxes on my behalf.
• If you promise me something of value other than just money (for instance, health insurance), you must also provide accounting and supervisory benefits concomitant with those non-monetary benefits as well.
• You must provide me with workers’ compensation insurance, unemployment insurance, and disability insurance, whether I want them or not.  You must purchase this unemployment insurance and disability insurance from the government and your failure to do so would be a crime.
• You may not punish or retaliate against me either before, during, or after our employment relationship if I make a claim for benefits on the workers’ compensation insurance or unemployment insurance that you are required to provide for me, or if I get sick, or if I accuse you of discriminating against me based on my race, age, religion, gender, national origin, union advocacy, parental status, marital status, or in some states veteran status, sexual preference, or political advocacy, or if I accuse or threaten to accuse you of engaging in illegal activity, whether those accusations are ultimately proven correct or not.
• You must allow me to not work during the times that you would prefer I work if I am sick, injured, disabled — or at least, if I can find a doctor willing to say that I am.
• Further, under most circumstances you must allow me to take time out in the middle of the day to rest and eat, with greater amounts of time involved on a sliding scale as you demand more and more of my time.  After a certain point, I cannot waive and agree with you that I will not take this mandatory rest time during the day.
• You cannot require me to work in just any conditions you please but instead must provide me with a working environment reasonable to the job at hand, even if I agree to work in unreasonable conditions.

This doesn’t look like a freely-negotiated contractual arrangement to me.  And it’s certainly not an arrangement between just you and me.  The government, at both the state and national levels, is intimately involved and indeed the government looks like it’s pretty much micromanaging the details of our relationship.  Perhaps we’d have reached similar sorts of arrangements if we were both infinitely sophisticated and had equal bargaining strength in the negotiations, but perhaps not — and that’s the point; the result of the agreement between you and I for you to employ me will not be a reflection of our respective bargaining strengths.  And in addition to the ongoing and instrusive meddling of the government, at least one private third party, the workers’ compensation insurance carrier, is also involved.

So we can talk about a “contract of employment” all we like.  But the relationship is far from a free contract between just you and me.  At least this resembles a contract insofar as there is an offer — “I will work for you for X dollars per hour” — and an acceptance, and an exchange of something that can be legally recognized as being of value between you and I, even if neither of us really gets to take away from the relationship everything that we bargained for.

The “contract of marriage” is something else entirely.  I might offer to marry you, and you might agree to my proposal.  That looks like an offer and an acceptance.  From there, what do we exchange that is of value?  It might be any of these:

• Sex.  Except there are sexless marriages.  Maybe your marriage isn’t like that, but it doesn’t mean that your neighbor’s marriage isn’t.
• Sexual monogamy.  Except there are open marriages, “arrangements,” and some marriages allow for the occasional three-way.  And there are marriages with infidelity that is not treated as a breach of contract by the non-cheating partner.  Maybe your marriage isn’t like that, but it doesn’t mean that your neighbor’s marriage isn’t.
• Procreation and child-rearing.  Except not all marriages result in children and not all marriages are intended to result in children.  Maybe your marriage has children, but that doesn’t mean someone else’s does.
• Social Prestige.  Except couples don’t give that to one another; third parties afford that to them.  And not everyone thinks particularly highly of everyone else’s marriages.  Come on, you know somebody whose spouse you just can’t stand, someone you’d be closer friends with if it didn’t mean dealing with their obnoxious husband or wife, so we see that sometimes a marriage results in a diminishment rather than an increase of social prestige.
• Mutual support.  Except some people just plain don’t give a damn about their spouses.
• Love and affection.  Hopefully your marriage has this, but again, there is no requirement that you have to be in love in order to be married.
• Insurance and healthcare benefits.  Except some people don’t have any to bring to the table.  And some employers don’t offer spousal coverage.  The county clerk sure doesn’t ask about this when she issues you the marriage license.
• Mutual ownership of common property.  Except if you and your spouse agree, you can acquire property as your individual property and exclude it from your marital estate.  And proceeds of your family’s estates and life insurance are generally your separate property that never enters the marital estate.  And the property you had before you were married, in theory, stays your individual separate property.
• Lifelong companionship.  Except if you get divorced.  Or if you live somewhere other than your spouse (say, for your employment).  Or if you don’t like your spouse.
• The free choice of your spouse.  Not everyone has this; arranged marriages are still common in many parts of the world and practiced by some families even here in the twenty-first century USA.
• Ability to file a joint tax return.  Sure, if you want, but you can also file separately if you wish and there’s no requirement that you do a joint return.
• Ability to jointly declare bankruptcy.  See above about tax returns; same thing applies mutatis mutandis.
• Eligibility for joint and survivorship social security and welfare benefits.  Again, same thing — if you want them and some people don’t for whatever reason that might be.
• Change of name.  Except you don’t need to get married to change your name.  You can do it whenever you want.

In fact, pretty much anything else you might want to add to the list that might be seen as a valuable thing to exchange when getting married is something that is not necessarily part of the exchange and is almost certainly not part of the exchange for some couple that holds a marriage license issued by the state.  So, marriage fails the test of contract formation because by itself, marriage does not necessarily mean that there is an exchange of valuable consideration.

Then there’s the fact that not just anyone can get married.  Certainly the issue of whether two adults of the same sex can get married, which is still a hot-button political issue.  But setting that aside, if you and I are too closely-related by blood, we are excluded from the ability to marry.  Or if one or both of us are not of a certain age.  Or mentally incompetent.  In the past, if we were of different racial groups that would be a bar, although that primitive notion is thankfully purged from our society.  The point is, we can’t freely contract to marry.  It requires the by-your-leave of the government.

What, then, is marriage? From the law’s point of view, it is an agreement between two people that they will have a “default” of jointly acquiring property after the marriage license is issued, adoption of a particular method for division of property if and when the spouses subsequently divorce or when one of them dies, joint eligibility for a spectrum of (waivable) governmental benefits, and an allocation of responsibility for childrearing should there happen to be children.  In each of these, there is governmental involvement at a meaningful level.

I guess the controversy comes from the fact that the word we use to describe this legal state of existence coincides with the same word used by most religions to describe a more particular set of mutual circumstances regardless of whatever obligations or options are put into play by the government.  That is why it is important to distinguish between civil marriage and religious marriage.  And because the government is involved, that is why I think it is imperative that everyone have access to this, unless there is a damn good reason they shouldn’t.

But what I want to suggest today is that calling this a “contract” isn’t really accurate.  That doesn’t mean it isn’t important or worthwhile or something not to be taken seriously.  But it’s so fluid, so individualized, and the government is so deeply involved in the ways that it takes material effect in the real world, that it simply isn’t an agreement between one spouse and another.

Employment and marriage are special relationships before the law.  To be sure, in a society like ours, these are exceedingly important realtionships and we ought to treat them with respect and do what is reasonable to maximize the ability of people to freely form and dissolve them.  The government, at many levels, is not just a witness to but an active and ongoing participant in both of these ongoing relationships. And so it is high time we stopped trying to graft the language of the Uniform Commercial Code to such special relationships.