Marriage Law and Family Law: Autonomy, Interdependence, and Couples of the Same Gender

Abstract:     
The Article argues for the recognition of same-sex marriage from a normative and family law perspective, rather than a rights perspective. Contemporary family law and marriage law in the United States have been criticized by communitarian scholars and others as being too focused on individuals and individual fulfillment. These critiques make some valid points. It is also important, however, to emphasize that contemporary marriage law, for the first time, presents a model of equality and of reciprocal obligations.

The Article articulates a broad framework of the functions of family and marriage law, drawing on work by Carl Schneider and Mary Ann Glendon. It applies both this framework and the communitarian critique of family law to the issue of same-sex marriage, also referred to in the Article as ‘same-gender marriage'. This analysis leads to the conclusion that same-sex marriage should be recognized. All the key functions of family law - the expressive, protective, facilitative, dispute resolution, and channeling functions - call for recognition of same-sex marriage. Strong morality-based arguments actually support same-sex marriage. Arguments against same-sex marriage, discussed in the Article, contribute to the 'atomistic' focus of contemporary family law.

Number of Pages in PDF File: 62

Keywords: same-sex marriage, gay marriage, family law, liberalism, Mary Ann Glendon, Carl Schneider, communitarianism, community, liberalism, gay rights, lesbian rights, equality, moral discourse

Accepted Paper Series