Law Commons^™

Why The State Cannot “Abolish Marriage”: A Partial Defense Of Legal Marriage, Gregg P. Strauss

Indiana Law Journal

Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Recently, several scholars have answered this question with a no and concluded that the state should abolish marriage, along with all other categories of intimate status. While politically infeasible, these proposals offer a powerful thought experiment. In this Article, I use this thought experiment to argue that the law cannot avoid relying on intimate-status norms and has legitimate reasons to retain an intimate status like marriage.

The argument has three parts. The primary lesson of the thought experiment is that the state cannot abolish intimate …

A Marriage By Any Other Name: Why Civil Unions Should Receive Federal Recognition, Deborah A. Widiss, Andrew Koppelman

Indiana Journal of Law and Social Equality

The federal government now recognizes same-sex marriages as triggering rights and responsibilities under federal law. However, it still generally refuses to recognize alternative legal statuses—civil unions and domestic partnerships—that were created by states to serve as functional marriages. Even though all the states that created such alternative statuses now permit same-sex couples to marry, this misguided policy causes ongoing harms. Some same-sex couples who entered into alternative relationships when marriage was not an option may now lack the capacity to marry. Couples who have since married may also be hurt by the federal government’s refusal to recognize civil unions or …

Baker V. Nelson: Flotsam In The Tidal Wave Of Windsor's Wake, David B. Cruz

Indiana Journal of Law and Social Equality

Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the U.S. Supreme Court’s 2013 ruling in United States v. Windsor to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court as it returns to the issue. Part II then at some …