Rights, Privileges, and the Future of Marriage Law

Abstract

On the eve of its final triumph, has the cause of marriage equality fallen short? This article discusses persistent differences in the incidents that attach to same-sex marriages versus man-woman marriages. It examines these in light of the distinction between fundamental rights and concessions of privilege in marriage law, and in common law constitutionalism generally. That examination suggests that the norms of natural marriage are likely to reassert themselves in positive law, notwithstanding the U.S. Supreme Court's recent marriage jurisprudence. Finally, the article suggests that lawmakers would do well to consider how additional concessions of privilege can best serve the interests of all.

Keywords: marriage equality, fundamental rights, children's rights, privileges, common law constitutionalism, natural law, positive law