59 Pages Posted: 21 Apr 2016 Last revised: 27 Apr 2016
Date Written: April 20, 2016
What is marriage for? The social (as opposed to religious or personal) function of marriage has been to foster the natural or biological family — a woman, and man, and their biological children — as the best setting for the raising of children. Marriage was supported primarily through the symbolic or expressive (or teaching) function of law — that is, "in expressing social values and in encouraging social norms to move in particular directions.”
However, in Obergefell v. Hodges, by a 5-4 vote, the Supreme Court fashioned a constitutional right to same-sex marriage, thereby invalidating the classical definition and social justification for marriage. What now is marriage for? Some critics of the traditional concept of legal marriage offer alternative justifications. This article reviews these alternatives and finds none of them plausible. After Obergefell, marriage has no core legal function; marriage is merely a group that, for whatever reasons sufficient to itself, wants to be legally married. The Supreme Court has ushered in a new age of meaningless marriage.
Some commentators welcome this development. They argue that government should stop promoting marriage and “get out of the marriage business.” However, the natural family has performed vital social functions. The demise of the natural family has already led to huge social costs, and the Obergefell decision will exacerbate these costs.
This article reviews these issues and suggests some ways to deal with the problems caused by Obergefell.
Keywords: Obergefell v. Hodges, Marriage, Biological family, Social function, Legal function of marriage
JEL Classification: K10, J12, A13, D63
Suggested Citation: Suggested Citation
Dent, George W., Meaningless Marriage (April 20, 2016). Case Legal Studies Research Paper No. 2016-12. Available at SSRN: https://ssrn.com/abstract=2767635