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Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights

45 Pages Posted: 11 Feb 2009 Last revised: 18 Mar 2010

John G. Culhane

Widener University - Delaware Law School

Date Written: February 10, 2009


This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury to same-sex relationships in tort law; and the creation and enforcement of private contractual agreements between same-sex partners. The period surveyed covers the early 1970's through late 2008.

Through examination of case law, legislation and legislative history, and the increasing visibility of the LGBT community during the period in question, Marriage, Tort and Private Ordering: Rhetoric and Reality in LGBT Rights argues that, during the 1970's, the socially enforced invisibility of gay lives and relationships translated into an inability to regard "gay marriage" as anything but an oxymoron. Moreover, inasmuch as marriage was also seen as required for relationship validity, tort claims also met with failure when the intimate lives of gay and lesbian couples came into view. Over time, though, both visibility and the vocabulary needed to describe it have moved same-sex couples ever closer to formal, legal equality. Private arrangements by same-sex couples, by contrast, have long enjoyed greater recognition, in part because courts were been able to focus on economic understandings and the law of contract.

Keywords: same-sex couples, gay marriage, same-sex marriage, gay rights, LGBT rights, tort law, marriage, contracts, lesbian couples

JEL Classification: K1, K13, K12

Suggested Citation

Culhane, John G., Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights (February 10, 2009). Chicago-Kent Law Review, Vol. 84, 2009; Widener Law School Legal Studies Research Paper No. 09-09. Available at SSRN:

John G. Culhane (Contact Author)

Widener University - Delaware Law School ( email )

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