For and Against Marriage: A Revision

83 Pages Posted: 2 Oct 2003


Recent developments emphasize that marriage is a legal artifact. No matter what end they pursue - extending marriage to same-sex couples, a "defense of marriage" that seeks the opposite goal, reform of divorce rules, or marriage promotion as social policy-marriage activists are fighting over rights, entitlements, and appropriations. As their wins and losses reveal, the legal effects of two persons' joining together into a dyad are not static. Legislatures and governments bestow the law of marriage, and can also take it away. More change is possible: Marriage could cease to exist as a legal category. Under this proposal, the government would ignore pairings-off, intervening in couples' lives only as it now uses the law of contracts, tort, crimes, and property to moderate relations between any other pair of adults.

This paper considers what such a change would do to American law and society. It explores the current legal consequences of getting married and of ending a marriage, and then moves from individuals to the collective, assessing detriments and benefits that Americans as a group experience as a result of recognizing this legal category. In the end, although it finds the prevailing rationales for marriage unconvincing, the paper favors retention over abolition.

Suggested Citation

Bernstein, Anita, For and Against Marriage: A Revision. Michigan Law Review, November 2003, Emory Public Law Research Paper No. #, Available at SSRN: or

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-7934 (Phone)

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