Peaceful Penetration: Proxy Marriage, Same-Sex Marriage, and Recognition
33 Pages Posted: 8 Feb 2012
Date Written: February 7, 2012
This Essay is a contribution to a symposium, “Modernizing Marriage through E-Marriage,” that focused on “E-marriage,” an idea developed by Professors Adam Candeub and Mae Kuykendall in their article Modernizing Marriage, 44 U. Mich. L. Reform 735 (2011). E-marriage, as Candeub and Kuykendall acknowledge, would be the latest instantiation of the ancient phenomenon of proxy marriage. In this Essay, I aim to complicate Candeub and Kuykendall’s claim that E-marriage would represent a positive step forward in the recognition of marriages by same-sex couples by providing a partial genealogy of proxy marriage in our country. In particular, the Essay offers some historical observations about how proxy marriage flourished for a time among immigrants to the United States and was then abolished by the National Origins Act of 1924. There are some striking parallels between E-marriage and these earlier forms of proxy marriage, and my hope is that the historical examples will provide us with a richer backdrop for understanding the complex legal and cultural dynamics surrounding proxy marriage. The story of how proxy marriage became popular and was ultimately banned as a basis for immigration tells us a great deal about marriage’s cultural valence in times of social upheaval.
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