Will you e-marry me? Law professors propose sweeping changes in state marital statutes

By Rick Haglund

Legal News

Couples who marry today do so in ceremonies much like those held a century ago. They say their "I do's" while standing before a minister or other person empowered by the state to officiate at weddings.

But two Michigan State University College of Law professors say it's time to change marriage laws in a way that would allow couples to use online technologies in tying the knot.

"Marriage statutes have been largely unchanged for a century," said Michigan State law professor Mae Kuykendall. "They don't recognize how mobile people are now."

Kuykendall and fellow law professor Adam Candeub are co-creators of The Legal E-Marriage Project, which would assist couples in one state to use the Internet to marry under another state's law.

Their work originally was focused on studying how e-marriage might help same-sex couples living in states where gay marriage was illegal get married in states where it is allowed without having to travel there.

Same-sex marriage is legal only in Connecticut, Iowa, Massachusetts, New Hampshire and Vermont.

But the law professors soon discovered the issue they were dealing with was larger than making same-sex marriages more convenient.

"We decided that marriage procedure deserved a lot more attention than it was getting," Kuykendall said. "The culture wars have focused on who should be able to marry. We began to conclude that just simple old-fashioned legal reform was overdue."

Companies conduct business in one state using contracts signed under another state's laws. Why not extent the same concept to marriage, Kuykendall and Candeub wondered?

Several states, including California, Colorado and Texas, already allow marriage by proxy when one person is serving in the military and stationed outside the country.

"The military looks favorably on this kind of access to marriage," Kuykendall said.

The Legal E-Marriage Project is designed to be a clearinghouse of legislative proposals to institute "e-marriage."

Kuykendall and Candeub are planning a national symposium, tentatively scheduled for November, that will bring together state legislators and marriage-law experts from around country to discuss issues surrounding e-marriage.

Those issues include getting all states to recognize e-marriage, whether or not e-marriage creates a genuine legal bond and whether it could lead to an increase in same-sex marriages.

Kuykendall admits that getting state legislatures to enact e-marriage laws will be difficult. The concept is opposed by conservative groups who believe it would open the floodgates to same-sex marriage.

"It seems a not very cleverly or well-disguised scheme to establish the legal and emotional fiction of so-called homosexual 'marriage' in states which truthfully define and legally recognize marriage as only between one man and one woman," said American Family Association of Michigan President Gary Glenn in a prepared statement.

Glenn was the co-author of the 2004 Marriage Protection Amendment that defined marriage as between one man and one woman in Michigan and was adopted by voters.

But Kuykendall said e-marriage also could help maintain marriage traditions in a variety of new ways using online technologies.

For example, a couple living in one state could be married in an online video ceremony by the couple's childhood priest officiating from another state, she said.

"It doesn't make for less tradition," she said. "It allows for people to preserve their traditions."

States that enact comprehensive e-marriage laws might also be able to reap a financial windfall at a time when many are facing huge budget deficits.

Kuykendall said a state could charge several thousand dollars for an e-marriage. Some services, such as marriage videoconferencing, could be farmed out to private companies while the state maintains tight control over the procedures.

She said it's unlikely that Michigan will soon legalize e-marriage, in part because of the Marriage Protection Amendment and a generally conservative view of marriage in the state.

"If Michigan wanted to get with it, it wouldn't be a bad thing to be a first mover," Kuykendall said. "It could capture a big market and establish a reputation that says this is a good thing."

Published: Wed, Feb 17, 2010

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