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Full-Text Articles in Law
What Place For Marriage (E)Quality In Marriage Promotion?, Linda C. Mcclain
What Place For Marriage (E)Quality In Marriage Promotion?, Linda C. Mcclain
Faculty Scholarship
The place of marriage in a just and fair constitutional democracy reverberates as one of the most challenging questions posed in debates over family law and policy. Should government properly support and promote marriage, defined as the union of one man and one woman, as the proxy for the form of family best able to undergird our polity by allowing realization of the goods associated with family life and carrying out the important functions society assigns to families? Or is marriage's privileged place undeserved because it is an imperfect and inadequate proxy for these purposes. This article argues that, although …
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
Faculty Scholarship
The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …
Protecting Children By Preserving Parenthood, Jane C. Murphy
Protecting Children By Preserving Parenthood, Jane C. Murphy
All Faculty Scholarship
Establishing legal parentage, once a relatively straightforward matter of marriage and biology, has become increasingly complex. The determination of legal status as mother may now involve several women making claims based on genetic contribution, contract, status as gestational carrier or other bases. The debate about the best choice for children when adults are competing for parental status is ongoing, lively and filled with many voices. Less attention has been paid to a much larger, second category of cases - cases in which the law is faced with resolving the legal status of the one adult who may be available to …
Bringing Up Baby: Adoption, Marriage, And The Best Interests Of The Child, Robin Fretwell Wilson, W. Bradford Wilcox
Bringing Up Baby: Adoption, Marriage, And The Best Interests Of The Child, Robin Fretwell Wilson, W. Bradford Wilcox
Faculty Scholarship
In the piece, Professor Brad Wilcox and I ask who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under new definitions of legal parentage proposed in this volume of the WILLIAM & MARY BILL OF RIGHTS JOURNAL. This question is also important today for evaluating state adoption laws. A significant number of states bar consideration of a prospective adopter’s marital or non-marital status. We believe these laws miss an important opportunity to maximize the best interests of each child being placed. In this piece, we take an exclusively child-centered approach, drawing …
Marriage, Biology, And Paternity: The Case For Revitalizing The Marital Presumption, Jana B. Singer
Marriage, Biology, And Paternity: The Case For Revitalizing The Marital Presumption, Jana B. Singer
Faculty Scholarship
This article examines the recent history and current status of the marital presumption of paternity. It explores the social, economic and legal developments that have contributed to the erosion of the presumption, focusing in particular on the efforts of federal and state governments to identify and collect financial support from unmarried biological fathers. The article then describes the procedural and equitable doctrines that some courts and legislatures have used to bolster the marital presumption in the face of conflicting biological evidence. Finding these approaches problematic, the article advocates a revitalized marital presumption as a substantive rule of law. It argues …
The Framers' Idea Of Marriage And Family, David F. Forte
The Framers' Idea Of Marriage And Family, David F. Forte
Law Faculty Contributions to Books
The founders understood the symbiotic connection between family virtues and civic virtues. They knew it through their study of the classics, through their imbibing of the Scottish enlightenment, through their understanding of the providential nature of the Judeo-Christian God, through their familiarity with self-governing liberty, and through their utter respect of their own human experience of living. They looked upon the family as a model in which man’s selfish impulses would be contained, where the coordination of practical tasks could be effectuated, and where sentiments of affection and mutual respect could bind a people into a nation. It was the …
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
Faculty Scholarship
Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …