Calling a Truce in the Marriage Wars

Posted: 13 Sep 2001  

F. H. Buckley

George Mason University - Antonin Scalia Law School, Faculty

Larry E. Ribstein

University of Illinois College of Law (deceased); PERC - Property and Environment Research Center

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Abstract

The debate over the changing institution of marriage is marked by the clash of ideas about social institutions. Recent marriage reform proposals highlight these differences. Covenant marriages, in which spouses waive the right to a no-fault divorce, appeal to social conservatives but are regarded with suspicion by social liberals. Authorization of same sex marriages appeals to social liberals but is strongly opposed by social conservatives. Previous articles have focused on same sex marriage and have proclaimed a total victory to one side or the other in the debate. We offer a compromise based on jurisdictional choice and enforcement of contracts. Objections to recognizing covenant or same sex marriages in one's own state are stronger than those to enforcing at least the contractual elements of marriages solemnized elsewhere. At the same time, a state need not give a non-standard foreign marriage the same effect internally as to government-conferred subsidies and benefits as it has in the state of celebration. In other words, we would reject the all-or-nothing principle by which a marriage is either wholly valid or wholly invalid in other states for all purposes. This compromise approach is preferable to absolutist, top-down solutions because it offers a chance of building a consensus between the two sides in the debate.

JEL Classification: D1, K3, K4

Suggested Citation

Buckley, F. H. and Ribstein, Larry E., Calling a Truce in the Marriage Wars. University of Illinois Law Review, pp. 561-610, 2001. Available at SSRN: https://ssrn.com/abstract=281837

Francis (Frank) H. Buckley

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

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8028 (Phone)
703-993-8088 (Fax)

Larry Edward Ribstein (Contact Author)

University of Illinois College of Law (deceased)

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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