I think the difficulty is that for the vast majority of American history, marriages weren't really performed without any religious connotation. Hell, even legally, from what I understand, there was a time where marriages _had_ to be performed by a clergyman of some kind. Now, you're right, the religious association is technically optional, but it's worth remembering that for a very, very long time, marriage was as much a religious agreement as it was contractual.

There was once a time (and still some places) when religion played a role in regulating other aspects of society, like dietary regulations. Nobody says "keep religion out of my kitchen" when the local health department insists that you don't cross contaminate other foods with utensils used on raw meat.

Just because we used to regulate these ideas with religion in the past doesn't mean that our current institutions are religious. Some people who are legally married also subscribe to religious meanings of marriage. Some people who have food handlers cards also follow religious food customs. They're related but independent concepts in the modern day. The modern legal construct of marriage in the US is secular.

Got married in the '00s in the US and IIRC in that state it was still the case that, to be valid, you had to have an ordained minister or certain officials (a judge) sign the paper.

Now, would anyone ever check? Nah. Unless litigation (divorce, inheritance, whatever) came up and someone thought invalidating the original marriage might somehow help their case, though even then, dunno if it'd really matter.

> Marriage is a contract.

The really interesting thing is that marriage is a contract that changes over time (as the government modifies law), without either party re-consenting to the new agreement. It's part of why I will probably never get married, it technically represents infinite risk.

> it technically represents infinite risk.

a) Prenuptial agreements help some.

b) I hope your partner doesn't have a different view of what it represents.

c) this is actually a real interesting perspective I haven't heard. You're absolutely right and (like many things) the government could pass a law changing what it means, and who knows the affect. Actually, basically everything ever can change with government law changes (eg. taxes?) so maybe this isn't profound.

> without either party re-consenting to the new agreement

This can also happen time with non-marriage contracts, which is why prudent drafters include severability clauses

> prudent drafters include severability clauses

yes, but we dont get to draft the law/contract that is marriage -- that's done by law makers. IIRC even a pre/postnup cannot contradict law.

No contract can contradict the law, so marriage is not unique there. Employment and purchasing are examples of other contract areas governed by shifting laws, that can be changed without any of the parties renegotiating terms.

Still, this is not different than other contracts. Negotiability is not an essential element of any other contract. Nor can other contracts contradict law.

But the government doesn't get involved at the outset of new contracts between businesses. I get that government, via the courts, has involvement when there's a dispute, but it's not like two companies wanting a contractural relationship have to file the contract with the government when it's created.

That's note quite true; the entire framework for those contracts is set (regulated) but the jurisdiction they are in. It's also why companies have lawyers on staff and/or retainer.

How much do you think it should cost a couple to form the contract for their marriage? Even a proper review of a contract with that complexity will likely cost a thousand or two, let alone making modifications. Times two, of course, as you would need independent representation.

I imagine that if we actually did this, fairly standard versions would start floating around and drop the costs - but the worst case of this is essentially the status quo with a few hundred in legal fees for review & education. Come to think of it, that wouldn't be terrible as it would reduce the amount of surprise in divorce.

On the other hand, it only really works in one jurisdiction so still problematic.

Regulation is a different matter. Two companies can work under a non-legal contract for years - until there's a dispute, then the courts get involved and those regulations are enforced.

The government is not involved at the time of contract formation, there's not some government representative reviewing the contract. Nor do they enforce contracts (and related regulations) until there's a dispute.

Sure they do, in that the framework for writing those contracts is guided by the governments guidelines for what constitutes a valid contract. Just because a government isn't micromanaging the process doesn't mean it isn't "regulated".

> But the government doesn't get involved at the outset of new contracts between businesses.

Sure it does, depending on what the contract is about, even between individuals -- at least in most countries: A sale of real estate isn't really done until the deed is properly registered with the appropriate authorities. (I'm guessing this goes even for [at least most of] the otherwise so often wildly different USA.)

Marriage works the exact same way (again, at least in most of the world), and for the exact same reason(s): It only comes into force once properly registered, because it affects not only the parties and the relationship between them, but their relationship to government and the rest of society. For married people, taxation may change if the authorities know they're married; for property owners, they're the ones that can have others arrested for trespassing instead of themselves being arrested for it if the authorities know they're the owner.

That's pretty much how it has to work, otherwise it can't work at all. Isn't that rather obvious?

Sure, there are regulated processes around some types of contracts. There are regulations about what's legal to put in a contract, but here's no government employee who shows up to the meeting to make sure it's all perfectly legal. You certainly can form a non-legal contract. The government may never become aware until there's a dispute and it goes to court.