Alex Tabarrok, "Laissez-Faire Marriage," at Marginal Revolution (30 November 2007)
It's no accident that the state began restricting and intervening in the marriage contract at the same time as it was restricting and intervening in economic contracts. It was of course the evil Oliver Wendell Holmes Jr. who dissented in Lochner v. New York and who also upheld forced sterilization laws in Buck v. Bell (writing that "three generations of imbeciles is enough.") Economists don't like to talk about social externalities but the connection between economic and social regulation is very clear in the progressives.
I think it's time to restore freedom of contract to marriage. Why should two men, for example, be denied the same rights to contract as are allowed to a man and a woman? Far from ending civilization the extension of the bourgeoisie concept of contract ever further is the epitome of civilization. Our modern concept of marriage, for example, is simply one instantiation of the idea of contract.
...yes, I'm just now catching up on blog-reading, thanks for asking.
There are some rather ancient concepts of marriage that are explicitly tied to the idea of contract law, of course. When Carrie and I got married, we both signed one of these.