Gender and the Institutional Nature of Marriage

12 Pages Posted: 13 Mar 2014 Last revised: 19 Mar 2014

See all articles by Tyler LeFevre

Tyler LeFevre

affiliation not provided to SSRN

Date Written: March 11, 2014

Abstract

Court decisions invalidating man-woman marriage laws frequently rely on the argument that expanding marriage to include same-sex relationships would have no social downside and, therefore, cannot be constitutionally justified. However, contemporary social theory casts doubt on this “no downside” argument for genderless marriage. Drawing on the philosophy of society, especially that of John R. Searle, this Article argues that redefining marriage to include same-sex couples will alter the institutional function of marriage, which alterations would have harmful effects on social welfare and children’s rights. This Article further argues that American courts and commentators are amiss when they mask or willfully ignore the plausible forecasts by gendered marriage advocates that redefining the marriage institution would have harmful social effects. Instead, courts and commentators ought to balance the probable social benefits and costs of the competing conceptions of the marriage institution.

Keywords: Marriage, Gender, Constitution, Fourteenth Amendment

Suggested Citation

LeFevre, Tyler, Gender and the Institutional Nature of Marriage (March 11, 2014). Available at SSRN: https://ssrn.com/abstract=2407789 or http://dx.doi.org/10.2139/ssrn.2407789

Tyler LeFevre (Contact Author)

affiliation not provided to SSRN

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