Finally, one might also object that marriage isn’t the sort of thing for which surrogate decision-making is appropriate; that it is the type of decision that must always be made by the person on his or her own behalf. This seems wrong to me as well. There are many decisions that are far more significant to a person’s life than marriage. Some of these decisions will become the charge of surrogate decision makers. So, to say that marriage is a choice not amenable to surrogate decision-making is to claim there is something special about the institution. But, it seems to me that the onus should be placed on those who believe it is special to demonstrate that fact, rather than the other way around.
Significant as marriage is, it nonetheless seems quite clear that the difference of marriage here has nothing to do with its significance, but with its nature as a mutual contract. What Morris and Pourifoy actually have is a prior contract -- a contract to form and actualize another contract -- that one of the parties physically and mentally cannot complete because of an inability to engage in further contracts at all. Thus what Pourifoy is actually asking is for state to impose on Morris a contract, despite his inability to engage in contracts or fulfill any contractual responsibilities; and what Davies is arguing is that, given the prior intent, a surrogate decision-maker's decision should be adequate reason for the court to do so. It hardly needs to be said, in that light, that the judge's response was the only one seriously possible under Illinois law -- or, indeed, as far as I am aware, the marriage laws of any state. States in general only are able to requlate marriages qua contracts; this has the direct implication that they can't recognize marriages that cannot be legitimate contracts between the parties involved, nor can they recognize marriages that are not contracts of the sort that marriages are recognized as being under law. To change the status of a contract from being actually contracted between two parties to one in which it is contracted merely on behalf of one of the parties, is a very significant legal change, and not one that can be made arbitrarily by judges.
We could, of course, ask ourselves whether it would make sense to expand the law here so that such surrogate marriage-making were possible. But there are lots of situations in which someone will have a surrogate decision-maker, not all of which involve the patient in a vegetative state. So what conditions would have to be met for such a surrogate decision-making to be reasonable in the case of something like a marriage? What will be the result if a surrogate marriage-making happens and the person, perhaps misdiagnosed, wakes up and doesn't want to be in the marriage, or claims that their intent in proposing was not merely to be married but actually to engage in marrying? These are the sorts of things that would have be considered at the legislative end. There are reasons why laws are framed with the expectation that people will engage in their marriage contracts themselves rather than by surrogate decision-making: the latter just appears to be a morass that starts rendering the whole thing incoherent, and some positive reason for thinking it is not is surely necessary before any such major change.
