The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors

63 Pages Posted: 3 Jul 2016

See all articles by Helen M. Alvare

Helen M. Alvare

George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2005

Abstract

Over the last forty years, family law has been shaped in very important ways by three types of arguments: arguments that bow to past failures, arguments that minimize children’s needs, and arguments that discount religious reasoning. As a result, today marriage is viewed as more of a self-seeking than self-giving institution and family law-making is dissociated from fundamental community and social aspirations about marriage and family. This is especially true in the context of three crucial family law debates: first, the debate about the ease of dissolubility of marriage, which led to the adoption of no-fault divorce, followed by the debate about whether to regulate assisted reproductive technologies (ARTs) designed to create children outside of marriage, which led to the decision to avoid regulating ARTs, and, today, the same-sex marriage debate. This article traces those arguments across the course of the first two debates, summarizes how they shaped the legal and social environment for marriage and parenting, demonstrates the presence of the same three arguments in the current same-sex marriage debate, and offers a critique of such arguments as directly contrary to efforts to strengthen marriage and parenting.

Keywords: assistive reproductive technologies, family law, marriage, no-fault divorce, religion, Roman Catholic Church, same-sex marriage, welfare of child

JEL Classification: K3, K10, K36

Suggested Citation

Alvare, Helen M., The Turn Toward the Self in the Law of Marriage & Family: Same-Sex Marriage & Its Predecessors (2005). Stanford Law & Policy Review, Vol. 16, No. 1, pp. 135-196, 2005, George Mason Legal Studies Research Paper No. LS 16-23, Available at SSRN: https://ssrn.com/abstract=2783453

Helen M. Alvare (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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