That is what Katherine Shaw Spaht says marriage is fast becoming under the law. The law, she says in The Meaning of Marriage, is rapidly retreating from its traditional defense of marriage, to instead making it just another private agreement. The three traditional elements of the legal understanding of marriage – permanence, mutual fidelity, and sexual complementarity – are all being eroded, dropped, even treated as mere prejudice.
Spaht's solution was to help draft the covenant marriage law in Louisiana. This is a second category of legal marriage, more demanding than the usual civil contract, that couples may voluntarily choose. It requires more time and preparation going in to marriage, and, if necessary, getting out. It establishes in law higher standards of marriage, especially if children are involved. Ironically, it does so through the mechanism of a contract (despite the covenant language). Spaht is trying to turn the very tools that have been undermining marriage to marriage's defense. I honor the project of covenant marriage, and note that it has been hugely successful – among the five percent or so of Louisiana marriages which use it.
I do not think things are as far gone as Spaht does. Marriage is a much stronger institution in our culture than it is in our law. And marriage could not survive without cultural support, no matter what the law said. But she is surely right that the law's rapid retreat from marriage threatens to undermine cultural support in the medium run.
To stem that tide we need a strong defense of marriage in law as a permanent, mutually faithful, and sexually complementary relation. Which is what we are talking about in this blog every day.