The Integrity of Marriage
67 Pages Posted: 23 Feb 2020
Date Written: January 25, 2019
While the Supreme Court’s decision in Obergefell v. Hodges resolved a dispute about access to legal marriage, it also exposed a rift between the Justices about what rights, obligations, and social meanings marriage should entail. The majority opinion described marriage as a “unified whole” comprised of “essential attributes,” both legal and extralegal. The dissents, in contrast, were more skeptical about marriage’s inherent legal content. Justice Scalia, for instance, characterized marriage as a mere bundle of “civil consequences” attached to “whatever sexual attachments and living arrangements [the law] wishes.” This side debate has taken center stage in several recent disputes. In the years following Obergefell, courts, including the United States Supreme Court, have considered whether the First Amendment limits a state’s authority to require public accommodations to provide equal access to services related to a wedding celebration, whether the right to marry encompasses the right to be deemed a parent to a child born to one’s spouse, and whether states can withhold valuable employment benefits from married same-sex couples. And numerous state legislatures have considered proposals to get states “out of the marriage business.” All of these disputes ultimately question how the positive law of marriage should be constituted and whether marriage is indeed a unified or integrated whole.
Some scholars have analyzed these questions from a historical or functional perspective. This Article starts from a different point. It accepts Obergefell’s invitation to think of marriage as an institution that can be more or less “unified” or “integrated.” Along these lines, it proposes a new framework for analyzing questions about the positive law of marriage: the continuum of integration and disintegration. This continuum has two interrelated dimensions. The first involves the rights and duties that the law imposes upon spouses. The second involves the uniformity of those legal rules across jurisdictions. Marriage becomes more integrated when rights and social norms mutually reinforce each other, and less integrated when rights and norms conflict. The package of rights and norms becomes more integrated when it is uniform across jurisdictions, and less integrated when jurisdictional differences prevent marriage from acquiring a singular meaning. This integration framework has two benefits. First, by focusing attention on the relationship between the functions, laws, and norms of marriage, the integration framework provides a methodology for assessing claims that changes to marriage laws are bringing about marriage’s disintegration, rendering visible whether and how disintegration occurs. Second, it identifies benefits and costs of integration, demonstrating the extent to which marriage relies on effectively communicating information about its content but noting the downsides of centralization and state control. This integration framework enables a more principled analysis of efforts targeted at reforming marriage laws and recognizing nonmarital relationships.
Keywords: marriage, same-sex marriage, marriage equality, domestic partnerships, civil unions, marital presumption
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