Full Faith and Republican Guarantees: Gay Marriage, FMPA, and the Courts
Brigham Young University Journal of Public Law, Vol. 20, p. 243, 2007
33 Pages Posted: 11 Apr 2011
Date Written: February 10, 2006
"What difference does it make to your heterosexual marriage if I enter into a homosexual marriage?" Such is the frequent rejoinder to claims that traditional marriage needs to be protected by state or federal law or even by a federal constitutional amendment. Here I explore answers to that rejoinder. Marriage may be an individual bond, but it is fostered by society because it also fulfills fundamental societal functions. Indeed, we have an unbelievably important example of unintended consequences from another profound change to this important societal institution: no-fault divorce. The United States did not embrace no-fault divorce until 1969, and the move to no-fault divorce has fundamentally changed the nature of marriage in the short time since it was made. There were a significant number of people who, at the time it was proposed, argued against no-fault divorce because it would change the nature of marriage. No-fault divorce, it was argued, would undermine the institution of marriage and the understanding of family, which has been an important foundation for civilized society. Feminist theorists, in particular, expressed concern about the economic consequences of no-fault divorce to women and their custodial children. The response then was much the same as it is now-it was what Justice Scalia described in the related context of nude dancing as the "Thoreauvian 'you-may-do-what-you-like-so-Iong-as-it-does-not-injure-someone-else' beau ideal: How did the availability of no-fault divorce that might be utilized by others hurt your marriage? The move to no-fault divorce fundamentally changed the nature of marriage. The consequences of that change have been profound, even if not perfectly understood. The consequences of the latest push to disconnect marriage from either its procreative or parenting functions will, I predict, be equally profound, even if the full extent of those consequences cannot be predicted with any degree of scientific certainty.
Keywords: same-sex marriage, marriage, gay marriage, polygamy
JEL Classification: H70, I00, I30, I31, K00
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