Mistaking Marriage for Social Policy
43 Pages Posted: 26 Apr 2006
This Article examines the role of marriage in society, focusing on the state's use of marriage as a proxy for desirable outcomes in social policy. Its analytical point of departure is the normative vision of modern marriage embraced by many of its proponents. From there, the idealized marriage is analyzed, not as a monolithic, opaque institution, but as one whose functional components may be identified and examined. The Article identifies the following as the primary functions of the normative marital family: expression; companionship; sex/procreation; caretaking; and economic support or redistribution. Analyzing the roles in society of each of these functions, it concludes that: (1) the expressive and companionate functions of marriage provide no societal benefit sufficient to justify state interference in those functions; (2) its purely sexual and procreative functions merit privacy and should, in all respects, be treated no differently than nonmarital sex and procreation; but (3) its caretaking and economic support functions benefit society significantly. Indeed, here the state's interest is at its apex. Accordingly, direct support of these two closely related functions, rather than the crude proxy of marriage in its entirety, should be the focus of state social policy in this area.
Keywords: Family Law/Policy, Marriage
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