Marriage and the Elephant: The Liberal Democratic State's Regulation of Intimate Relationships between Adults

Abstract

This essay discusses the current debate in legal theory over the state's proper position toward intimate relationships between adults. In it, I argue that scholars involved in this debate have reached diametrically different conclusions from one another because they have focused on only a few of the range of goods at issue in these relationships. And to complicate matters still further, these goods stand in tension with one another - some militating in favor of, others militating against, state recognition and support.

The essay contends that a workable approach to the issue of intimate adult affiliations can only be fashioned through recognizing the diversity of goods at stake and seeking to ameliorate the tension among them. It then offers one example of such an approach. In it, the state continues to provide a civil route to formalize relationships among adults, as well as to provide particular, albeit limited, privileges to members of these relationships. Yet it requires, as well, that the state actively seek to forestall the negative consequences that can result from recognizing and subsidizing these intimate relationships between adults, including increased gender and economic inequality.