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Marriage Equality? First, Justify Marriage (If You Can)

Drexel Law Review, Vol. 1, No. 2, 2009

Widener Law School Legal Studies Research Paper No. 09-27

28 Pages Posted: 3 Jul 2009  

John G. Culhane

Widener University - Delaware Law School

Date Written: July 2, 2009

Abstract

With recent positive developments in Connecticut, Vermont, Iowa, and New York, mixed success in California, and setbacks in Arizona and Florida, the marriage equality movement remains in the center of political, legal, and social debate in the United States. Proponents have argued that granting the right to marry to same-sex couples is compelled as a matter of simple fairness and equality, while opponents have continued to make a host of related - but unconvincing - arguments about the intrinsic meaning of marriage and how this will be lost or compromised if marriage equality takes hold. But below this turbulent surface, courts called upon to solve real problems confronting same-sex couples have expressly or impliedly recognized that a much deeper problem exists: the vast and often unexamined privileging of marriage over other forms of family and other kinds of relationships. Legal scholars, too, have questioned marriage - sometimes by focusing on the privileges that attach to it, but sometimes more broadly, by questioning the status itself. These unavoidable questions reveal that the controversy over same-sex marriage is but the most visible part of a much larger set of issues about equality and social justice.

What public health and policy goals are we trying to further with laws recognizing and subsidizing marriage? How do the signals sent by privileging marriage advance or compromise those goals? Is there a continued justification for marriage, and, if so, ought we consider changing its prerogatives in ways that will further the public good? What might those ways be, and how will (or could) we know whether we have succeeded? This brief Article raises and explores these questions, and asks whether and to what extent the current privileging of marriage is (or is not) justified.

Keywords: marriage equality, same-sex marriage, health law, health policy, public policy, marriage

JEL Classification: K3, K32

Suggested Citation

Culhane, John G., Marriage Equality? First, Justify Marriage (If You Can) (July 2, 2009). Drexel Law Review, Vol. 1, No. 2, 2009; Widener Law School Legal Studies Research Paper No. 09-27. Available at SSRN: https://ssrn.com/abstract=1428971

John G. Culhane (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
(302) 477-2107 (Phone)
(302) 477-2255 (Fax)

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