From Union to Association

• Post by: William C. Duncan
• December 24, 2017

In 1888, U.S. Supreme Court Justice Stephen Field wrote the majority opinion in a case involving the validity of an Oregon legislative divorce as it related to ownership of a land grant. In the opinion, Justice Field wrote:  "It is also to be observed that, whilst marriage is often termed by text writers and in decisions of courts a civil contract . . . it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress."[1] Now, the opinion of the justices about what marriage is does not necessarily change social practices or attitudes, but it does tell us something about what very influential elites think about the institution. And law has a teaching and a “channeling” function. It shapes and reflects wider perceptions. In 1965, the Court issued another opinion with a significant discussion of the nature of marriage. At this time, the opinion’s author, Justice William Douglas, was just less than a year into his fourth marriage. The question the Court addressed involved contraception, but marriage was important here because the opinion was trying to ground a right to contraception in the concept of marital privacy. In the opinion, Justice Douglas invoked an earlier decision involving the NAACP for the proposition that the Constitution protects “freedom of association” and “privacy in one’s associations.” Perhaps this ex