Law Commons^™

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

For Better And For Better: The Case For Abolishing Civil Marriage, Anibal Rosario Lebron

Anibal Rosario Lebron

This article examines – on the eve of next term U.S. Supreme Court’s review of same-sex marriage equality cases (The DOMA Cases) – whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or whether it would be better to simply abolish civil marriage in order to achieve such a goal. The piece explores why we still adhere to the unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children, and how we could achieve familial disestablishment (requiring the state to recognize the existence of …

What's In A Name? The Case For The Disestablishment Of Marriage, Carolyn A. Mcconnell

Carolyn A McConnell

The most remarkable social change of the past two decades has been the movement for gay rights focused on the right to marry. The movement for gay marriage has made urgent (and indeed is bringing to the Supreme Court) the question of what the right to marry might be and what marriage is. Marriage is, among other things, a sacred and expressive institution imbued with robust notions of the good life, but it is also a state license. That is, in our society, marriage is established as religion is not, and this places marriage in deep tension with liberal ideals. …

What's In A Name? The Case For The Disestablishment Of Marriage, Carolyn A. Mcconnell

Carolyn A McConnell

The most remarkable social change of the past two decades has been the movement for gay rights focused on the right to marry. The movement for gay marriage has made urgent (and indeed is bringing to the Supreme Court) the question of what the right to marry might be and what marriage is. Marriage is, among other things, a sacred and expressive institution imbued with robust notions of the good life, but it is also a state license. That is, in our society, marriage is established as religion is not.

This paper addresses the question begged by centuries of American …

Modern Marriage And Judgmental Liberalism: A Reply To George, Girgis, And Anderson, Matthew L. Clemente

Matthew L. Clemente

State by state, cantankerous debates about same-sex marriage continue to capture headlines. The outcome of these debates has not only changed the political landscape in United States but has also impacted public policy and legal theory. However, the same-sex marriage debate raises a more fundamental philosophical question—why is the state involved in marriage in the first place? I argue that the best answer to this question is that marriage plays a vital role in modern Western democracies. The right of marriage stems from its social function of habituating the character traits that are essential to effective democratic citizenship.

The standard …

Over My Dead Body: A New Approach To Testamentary Restraints On Marriage, Ruth S. Lee

Ruth S Lee

Money is a tool that can be wielded from the grave. It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a grant, devise, or bequest, on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage—prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as it is “reasonable.” A restraint is “unreasonable” if a marriage permitted by the restraint …

Multiplicity Of Marriage Forms In Contemporary South Africa, Roberto A. Garetto Ph.D.

Roberto A. Garetto Ph.D.

From the perspective of family law, South Africa seems particularly interesting as it recognizes a multiplicity of marriage forms, according to its laws: not only common law marriage, deeply linked with the traditions of Western culture, but also customary marriage and same-sex marriage. Customary marriage, a plural marriage practiced in the form of polygyny, is deeply related to the cultural identity of some South Africans; same-sex marriage is an innovation related to fundamental rights affirmed in the post-apartheid Constitution of 1996. The South African Constitution has a highly advanced sensibility related to issues of human dignity, equality, and freedom. Both …