Transforming Marriage: The Transformation of Intimacy and the Democratizing Potential of Love

27 Pages Posted: 14 May 2012

See all articles by Tammy Pettinato

Tammy Pettinato

University of North Dakota - School of Law

Date Written: 2007

Abstract

Whether for moral, economic or, as in Richard II, political reasons, the law has a long history of interfering with love relationships. Today in the United States, this interference is often clothed in Family Law doctrine, but interference it remains. Particularly through the laws of marriage and divorce, but through more indirect ways as well, Family Law renders a collection of judgments about who is appropriate to love and how that love should be enacted both structurally and sexually.

Such an idea clashes with neo-romantic notions of love. People like to believe that choices about whom and how to love take place in idealized isolation, far from the confines of the state. Though the private/public struggle in Family Law is well-recognized, it is less recognized that this struggle also affects love itself by influencing social norms about which types of love are appropriate. In turn, shifting social norms about love caused by other causes, such as the women's movement, have often led to Family Law reforms. Marriage, for all the greatly exaggerated reports of its death, is still the primary way in which love is organized in our culture, but the way love plays out in marriage is now up for grabs. Family Law could help insure that love relationships, and thus marriages themselves, will become more equal.

So what is love, what should it be, and why should it matter to the state? In this paper, I argue that love, aside from being the primary emotional bond of marriage, is also a political force. Democratizing marriages carries with it the possibility of increasing democracy in the state as a whole. By encouraging more egalitarian marriages, Family Law has the power to make society itself more egalitarian. To increase democracy in marriage, Family Law must account for the continuing power differentials that exist between men and women because of social inequality by filtering policy through an egalitarian lens. That is, only doctrine that increases sex equality should be preserved. In addition to helping equalize heterosexual marriages, this model has implications for same-sex relationships because when the primary focus of Family Law is egalitarianism, most of the justifications for preventing gay marriage fall away.

Keywords: family law, marriage

JEL Classification: K39

Suggested Citation

Pettinato, Tammy, Transforming Marriage: The Transformation of Intimacy and the Democratizing Potential of Love (2007). Journal of Law & Family Studies, Vol. 9, p. 101, 2007, University of Louisville School of Law Legal Studies Research Paper Series, Available at SSRN: https://ssrn.com/abstract=2058614

Tammy Pettinato (Contact Author)

University of North Dakota - School of Law ( email )

P.O. Box 9003
Grand Forks, ND 58202-9003
United States

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