Specific Performance in the Marital Bed

[Cross-posted on The Agitator.]

In the past, I’ve advocated privatizing marriage. But I didn’t envision removing the state from the question entirely; I figured the state would still enforce contracts, including marriage contracts, according to whatever terms the parties agreed upon. This op-ed, however, gives me pause:

Stephen Safranek, a professor at Ave Maria School of Law in Ann Arbor, Mich., who … has launched TrueMarriage.net, a project that invites couples to sign a religious prenuptial agreement saying they will use church tribunals when marital disputes arise.

He expects these prenuptial agreements to be enforced in the same way prenuptials are for wealth distribution. Safranek says civil courts should direct couples to religious tribunals just as the courts would order two business partners in a contract dispute to an outside arbitrator if arbitration was a provision of their partnership.

Imagine the logical extention of this: Legions of young couples sign up to submit to religious tribunals, possibly as a condition of getting married in the church, synagogue or mosque of their choice. Like nearly all marrying couples, they expect their nuptials to be for life, so why quibble with how the union might be unraveled? Then problems arise. She thinks five children are enough and wants to start using contraception. He says it's against their Catholic faith. He wants to have sex even when she is menstruating. She refuses, pointing to a proscription under Islamic law. (The same is true for Orthodox Jews.) A religious tribunal rules for doctrinal purity.

Should the civil courts really be drawn into enforcing these kinds of judgments? [All emphasis mine – GW]

I think the difficulty here boils down to the choice of contractual remedy – damages or specific performance. Under current law, monetary damages are the standard remedy for most breaches of contract, with specific performance (requiring the party in breach to perform the specific actions promised) being reserved for a few special cases. But there’s a very persuasive argument for making specific performance the default rule: if the parties to a contract believe monetary damages are preferable to specific performance, then they can simply write the damages into the contract – even under a specific performance rule. The same is not true of damages: if courts are willing to award damages, you can’t counteract that with contractual language requiring specific performance. Therefore, a specific performance rule will do better at letting the parties to a contract choose the rules they think best for their circumstances.

So what’s the advantage of the damages remedy? Simply put, it’s easier to enforce. If the court says A owes B money, it’s not that hard to squeeze the money out of A. Just tap his bank account, or put a lien on his property, or in the worst-case (highest-cost) scenario, garnish his wages. But if the court says A must perform a specific duty for B, the court has to find a way for force A to do so. If that sounds easy, imagine trying to force an actor to do a performance of Macbeth.

In the marital context, specific performance would pose even greater difficulties. Suppose a religious tribunal says that a woman is obliged to have sex with her husband a certain number of times per month. How will this be enforced? The state cannot remain uninvolved, because either (a) the state will help enforce the tribunal’s ruling, perhaps by contributing police officers to oversee the required sexual acts; or (b) the state will stand by while the tribunal enforces its own ruling, perhaps with private enforcement agents; or (c) the state will oppose the tribunal’s ruling, on grounds that any forced sex between husband and wife constitutes rape (even if she agreed to have sex as part of her marital contract).

The problem is that if the state agrees to enforce all marriage contracts, it could get roped into enforcing specific performance in cases where doing so is prohibitively costly and sometimes shocks the conscience. One partial solution would be to require that all enforcement costs for marriage contracts be covered by private parties, so they’re not foisted off on the taxpayers. This approach – which is option (b) above – solves the funding problem but not the conscience problem. (Political philosophers will recognize a question of inalienability here. Can you choose to give away your future sexual autonomy?)

And even with this solution, the state cannot avoid choosing remedies for some marital contract disputes. Specifically, what if a spouse refuses to submit her dispute to a religious tribunal, even though she agreed to earlier? This is analogous to a business person’s refusal to visit an arbitrator despite having signed an arbitration agreement. The state court has two choices: either require specific performance (forcing them to visit the tribunal) or impose damages for breaching the contract that specified the tribunal.

These concerns do not, I think, constitute a knock-down argument against privatizing marriage, but they do mean it’s far from a simple proposition. I'm in favor of giving people more choice about their marital arrangements, but I'm less sanguine about how the more restrictive agreements might be enforced.