Marvel’s WandaVision asks the age-old question, can a mutant (or Inhuman or altered human) and an android have a loving marriage in a situational comedy? The series echoes themes from the 1980s Vision and Scarlet Witch limited series, The West Coast Avengers (hint: the US Government was not happy about the time Vision took over the nuclear arsenal), with a dash of Avengers Disassembled and House of M. There is a lot of source material to explore in this show.
Wanda and Vision are living in a small town with no memory of how they got there, but are claiming to be married. At the conclusion of the first episode, Wanda creates wedding rings for them and they exchange vows on the couch.
So…could a woman marry a robot?
More Human Than Human
Courts have stated that a “robot is not an animate object. It is not a living thing; it is not endowed with life. A robot is a mechanical device or apparatus, a mere automaton, that operates through scientific or mechanical media.”[1]
The Vision is definitely a machine without a skeleton, but he is clearly is an animate object and behaves like he has life, from telling jokes to singing. To say otherwise is right up there with saying someone’s golden retriever has no soul.
Case law is no less heartwarming on artificial intelligence, stating AI includes “expert system,” which are “are a class of computer programs that were first developed in the 1960’s. They seek to emulate the decision-making of human experts in a field of expertise (e.g. chemistry, medicine, geology). An expert system stores knowledge obtained from human experts in a ‘knowledge base.’” A “decision module” inference engine is “programmed to selectively apply expert rules stored in the knowledge base in order to resolve problems.”[2]
Defining life has both biologic and legal norms to meet, which also have significant controversy. The Supreme Court entered the firestorm of what is “life” in the abortion cases from Roe v Wade to Planned Parenthood v. Casey. The question of whether or not a state has an interest in promoting the “potentiality of human life” turns on whether or not that life is viable. As such, the state cannot put on an undue burden on a woman’s fundamental right to an abortion before a fetus is viable.[3]
How can these cases be applied to determining whether or not Vision is “alive”? If a robot’s programming gives it the ability to identify itself as an individual, be self-aware, and viable to survive on its own, does that make it alive? Would a court hold a robot that could think for itself and feel emotion be property? Or a new form of artificial life?
The law is not designed for “robots” to be recognized with human rights. First, biology defines life as 1) a distinctive characteristic of living organisms from dead organism or non-living things, as specifically from the capacity to grow, metabolize, respond to stimuli, adapt, and reproduce.[4] Secondly, the law defines a “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”[5]
Robots are not defined as a species by the law. They also do not meet all the elements for “life” as we currently define it. However, the capacity to grow does not need to be in the physical sense, but intellectually and emotionally. Is the robot self-aware? Does the robot have goals? Does it adapt to its environment, or does it need updated programming?
Vision is self-aware, experiences emotions, and is not limited by his original programming. All of those factors would give a Court pause in finding he is not “alive.” A judge would recognize something new would be happening and a country founded on personal freedom would want to know more before issuing an order.
We’re Going to the Chapel
Marriage is “a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary.”[6] The key to all marriages is that the marriage is between two human beings and there is consent.
Marriage is a Fundamental Right that has been the subject of large volumes of case law. States have put both reasonable and unreasonable restrictions on marriage, such as the reasonable requirement that the parties to be over the age of consent. However, there are examples such as Loving v. Commonwealth of Virginia, where the state enacted the following abomination[7]:
Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.
The United States Supreme Court was unanimous in finding Virginia’s racially based prohibition on marriage violated the Equal Protection Clause of the Constitution. Chief Justice Earl Warren explained[8]:
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
Would a Court apply this logic to a human who wanted to marry a robot? In the era of Marriage Equality, perhaps, if the robot possessed artificial intelligence to the point it was self-aware and felt love.
There are many legal limitations on marriage. Bigamy is the act of marrying one person while still legally married to another.[9] The law only allows a person to have one spouse at a time.[10] The Federal government prohibited bigamy in US Territories after the Civil War.[11] States also prohibit people from having multiple spouses. Courts have also refused to find a “religious exemption” for those claiming having more than one spouse is part of their faith. [12]
States also have strict prohibitions on incestuous marriages between family members. Courts have cited three reasons for not allowing incestuous marriages, besides the “GROSS, What’s Wrong with You” reaction[13]:
(1) [Incestuous marriages] are forbidden by ecclesiastical law (see Old Testament, Leviticus 18: 6-18);
(2) Inbreeding is thought to cause a weakening of the racial and physical quality of the population according to the science of eugenics; and
(3) [P]revent the sociological consequences of competition for sexual companionship among family members.
There is the fourth reason that such marriages immediately make people think of dueling banjos, thus requiring the strict enforcement for public safety, because Burt Reynolds will not always be there to save you.
I, Do
Justice Kennedy in Obergefell v. Hodges, the Marriage Equality case, outlined four legal principles and historical traditions supporting that holding that marriage is a fundamental for same-sex couples under the Constitution:
1) The right to personal choice regarding marriage is inherent in the concept of individual autonomy;
2) The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;
3) The right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and
4) Marriage is a keystone of our social order.
How would a court apply Obergefell to a human-robot marriage? As to the first point, there is no question that the human being has a concept of individual autonomy. Would the same be true for the AI robot?
A human-robot marriage would require a court to accept a new definition of “person” to include robots. A court would be more inclined to accept personhood if the robot was more like the Vision and not Robby the Robot. A judge would want to see humanity reflected in the robot, not a lack of it.
The third point gets tricky. One could argue a human-robot marriage would be physically impossible for procreation. Options for children would range from adoption to the human spouse either being artificially inseminated or having a surrogate mother. Or in Wanda’s case, reality altering magic.
Marriage is a keystone for our social order. That social order is broad enough for same-sex marriages, but might not be for human-robot. County clerks selectively reading the Three Laws of Robotics could throw massive fits in refusing to issue marriage licenses on cable news.
Courts would not expand marriage rights to robots unless the robot was substantially “human.” The law does not allow inter-species marriages. While many people might feel they did marry a gorilla, no one has a right to marry an animal. Robots with advanced AI might be in the same category.
What does this mean for Wanda and Vision? Perhaps a Court would find he is meets all of the requirements to be a legal human. There are strong arguments for such a finding. However, there is the real issue the law is not designed to answer such questions without legislation or Constitutional Amendment.
[1] Lewis Galoob Co. v. United States, 66 Cust. Ct. 484 (Cust. Ct., 1971).
[2] Vehicle Intelligence & Safety, LLC v. Mercedes-Benz USA, LLC, 2014 U.S. Dist. LEXIS 130809, 5-7 (N.D. Ill. Sept. 18, 2014).
[3] Planned Parenthood v Casey, 505 U.S. 833, 873, 876-78.
[4] Biology Online, Life, http://www.biology-online.org/dictionary/Life
[5] 16 U.S. CODE § 1532(16).
[6] CA Fam. Sec. 300(a) (California Code (2015 Edition))
[7] Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
[8] Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
[9] Westlaw Black’s Law 9th Dictionary App.
[10] See, Antony T. v Rosemarie B.T., 41 Misc. 3d 1208(A), 1208A (N.Y. Sup. Ct. 2013), citing 11 NY Prac, New York Law of Domestic Relations § 9:5.
[11] See, Cannon v. United States, 6 S.Ct. 278, 116 U.S. 55, 29 L.Ed. 561 (1885):
‘Every person who has a husband or wife living, who, in a territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman in a territory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead; nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court; nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract.’
[12] State v. Holm, 137 P.3d 726, 2006 UT 31 (Utah, 2006).
[13] Loughmiller’s Estate, Matter of, 629 P.2d 156, 229 Kan. 584 (Kan., 1981), citing 52 Am.Jur.2d, Marriages § 62, p. 915.
