Marriage and Equality: What's Love Got to Do with it?
(2015) 40(4) Alternative Law Journal 225
Posted: 14 Aug 2017
Date Written: 2015
The marriage traditionally recognised at law is hardly the liberating concept that forms the foundation for the global movement for marriage equality. As an institution, it has traditionally represented a site of inequality for women and the social norms associated with that inequality continue to resonate. Yet despite these foundations, the institution continues at law even as the legal consequences of marriage have changed significantly, promoting objectives of equality. Now there remain only traces of the legal status traditionally afforded by marriage — official forms for example, continue to ask for marital status.
Despite significant advances in the law’s equal treatment of parties within an intimate relationship, and as between different types of intimate relationship, the vestiges of marriage remain exclusive. While the law prohibits discrimination based on marital status, it retains the discriminatory foundation of marriage as restricted only to couples comprising a man and a woman.
The law’s treatment of the sexual dyad has changed significantly over time. It now largely reflects principles of equality both within a relationship and as between State-certified (marriage) and de facto relationships. This movement towards equality is just the most recent in the long history of legislative regulation of relationships — a history that mirrors social and economic imperatives of the times.
This article traces the origins of the State’s regulation of marriage. It articulates the contemporary context of marriage within the broader legislative framework of equality within and between intimate relationships. In none of these contexts does the law accord with love or romance. Rather, the contemporary context of the law focuses on equality: equality before the law, and equality in access to its institutions. On this basis, and despite the vestigial legal effect of the institution of marriage, this article argues that the failure to bring it within the broader legislative framework of relationship equality leaves marriage as a marker of unjustified exclusion from a heteronormative system.
Keywords: marriage, marriage equality, same sex marriage, feminism, human rights
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