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The positive arguments for same‐sex marriage are discussed. The first argument links marriage rights to a normative ideal of long‐term, monogamous, sexually faithful intimacy, and defends marriage rights based on the value of that ideal. The second argument presses the connection between homophobia and sexism, stressing the way that securing same‐sex marriage rights might reduce sexism. The third argument links the denial of marriage rights to the cultural construction of gay men and lesbians as outsiders to the family, who are for that reason defective citizens. In pursuing this third line of argument, the US House and Senate arguments supporting the Defense of Marriage Act (DOMA) of 1996 are addressed.

This chapter discusses the market for law relating to marriage and other family relationships. Marriage can be viewed as a kind of “standard form contract,” much like a corporation, where the parties also contemplate a very long-term open-ended relationship. In many ways, however, marriage is quite different from corporate law because it relates to social policies that help shape the fabric of society. This chapter provides a brief history of choice of marriage law and describes how the contentious issue of same-sex marriage has compromised the place of celebration rule. It then discusses the supply and demand of state marriage law. On the demand side, couples seek new types of marriage rules. On the supply side, legislatures have been urged to accommodate same-sex relationships not only by would-be spouses, gay rights groups, and social liberals, but also by businesses wanting to attract these clients or customers to their states. This chapter also discusses the potential trend toward federal marriage rules. The chapter concludes by presenting a law market approach to divorce, as well as to other important social policy issues, including surrogacy contracts and living wills.

This book offers arguments in defense of same-sex marriage, marriage (as a distinctive relationship defined by law), and monogamy. It considers the acrimonious debate over same-sex marriage and two sets of issues that arise from this debate and that are closely intertwined with marriage: sexual ethics and children's wellbeing. It also examines the ramifications of same-sex marriage for the meaning and future of marriage and asks whether the recognition of same-sex marriage will end marriage as we have known it, or whether civil marriage and monogamy are still justifiable and viable. Finally, the book explores the wider and deeper questions raised by the debate over marriage concerning liberalism as public philosophy. Parts 1 and 2 of the book make the cases for same-sex wedlock and marriage as a special status in civil law, whereas Part 3 focuses on the intersection of polygamy, monogamy, and democracy. The introduction provides an overview of the chapters that follow.

This chapter describes what might be the last battleground over “traditional” marriage—same-sex marriage, and the social and legal revolution that brought us from an era in which it was never contemplated to one in which, depending on the state, it is either expressly authorized or expressly prohibited. Same-sex marriage has posed—and continues to pose—a challenge to traditional definitions of marriage and family. But, more importantly, the issue implies broader changes in family law—the increasing role of constitutional analysis; limits on the right of government to regulate the family; and the clash between the traditional family form and a new and wider menu of intimate and household arrangements, and all this against the background of the rise of a stronger form of individualism.

This chapter examines conservative arguments from the gendered nature of marriage as a relation of husband and wife, and others based on children's interests. It first considers the conservatives' idea of marriage as an essentially gendered relationship of husband and wife before discussing the debate in the U.S. Senate in 2004 over a Federal Marriage Amendment (FMA) to the Constitution. In particular, it explores two main claims advanced by Republican supporters of the FMA on the Senate floor: first, that traditional heterosexual marriage tends to promote children's wellbeing (which is true), and, second, that same-sex matrimony would damage or destroy heterosexual marriage. The chapter proceeds by reviewing the evidence regarding the impact of same-sex marriage on children's welfare and concludes by asking whether greater acceptance of marriages between gay males could contribute to the weakening of marriage.

Chapter 6 continues the argument for marriage reform by reviewing liberal debates over same-sex marriage to show what they have missed. Liberal defenses of same-sex marriage have not followed the implications of their own reasoning far enough. Attempts to produce a rationale for restricting legal marriage to different-sex partners have failed; but so have attempts to produce a rationale for restricting it to monogamous or amatonormative relationships. While child welfare is sometimes given as a reason for restricting marriage, the empirical evidence needed to sustain heterosexual privilege is lacking, and many children are reared outside marriages. I argue for separating legal marriage and parenting frameworks. This may seem to cede the point to marriage contractualists by depriving marriage of any rationale. In the absence of such a rationale, considerations of fairness and efficiency seem to support the abolition of legal marriage.

This chapter explores the performativity of the claims in the context of the debate over same-sex marriage. It analyzes rights claims made by both proponents and opponents of same-sex marriage rights to illuminate the ways in which making rights claims allows for the contestation and reconstitution of the meaning of democratic citizenship. This chapter thus offers a rejoinder to left critics of rights, such as Michael Warner and Wendy Brown, who worry that rights claiming reinforces state power and undermines democratic freedom, and it does so, in part, by offering a new interpretation of Michel Foucault’s notion of disciplinary power and his position on rights. It also works with the arguments of Judith Butler to further develop the perlocutionary and persuasive dimensions of the act of rights claiming.

This chapter addresses state constitutional interpretation in the context of same-sex marriage, with a particular focus on its implications for the new judicial federalism. It surveys the same-sex marriage decisions under state constitutions, applying an institutional approach to understand their implications within the new judicial federalism framework. It argues that, while state supreme courts construing state constitutions should not take into account out-of-state backlash, it is entirely appropriate, and even desirable, for them to consider in-state inter-institutional implications of their decisions when contemplating the recognition of new constitutional rights. The chapter illustrates how state courts simultaneously operate as independent sovereigns while participating in a national conversation about core constitutional values—values that transcend any one state.

This chapter considers the symbolic dimension of marriage, noting that the symbolism of marriage has been most central to the very public political debates over same-sex marriage. It first examines the arguments against preserving marriage as a status relation in law and asks whether marriage as a civil institution deserves its special status in law. It then discusses the uses of marriage as a status relationship defined by law, the law and public meaning of marriage, and the idea of marital commitment. It also makes the case for marriage from the standpoint of our deepest commitments to equality and freedom and argues that retaining “marriage” as a distinctive status in law serves both justice and the public good.

This chapter examines the many “legal incidents” of marriage: the specific benefits, responsibilities, obligations, and protections that are associated with marriage by law. While critics focus on the special privileges or benefits that spouses acquire in marriage, those are balanced by special obligations. The chapter suggests that the whole package seems reasonably appropriate for both opposite-sex and same-sex couples. It also considers the ways in which marriage seems to promote the good of spouses, children, and society, along with the class divide that now characterizes marriage and parenting. It argues that this class divide, not same-sex marriage, is the great challenge for the future.

This chapter considers the main arguments raised by conservatives against same-sex marriage and gay rights more generally. Defenders of same-sex marriage acknowledge the fact that marriage is in many ways a conservative institution. Libertarians, liberationists, and some liberals doubt that marriage is fair given the diversity of people's conceptions of meaning and value in life. Many adopt an unnecessarily critical posture toward civil marriage. This chapter offers a sympathetic account of marriage that recognizes the importance for many people of marital commitment while also honoring, and indeed helping to secure, the equal liberty and fairness prized by liberals. It shows that the debate over gay rights has been shaped by the repeated articulation of a demand for public reasons and evidence to justify the shape of the law touching on gay rights and marriage. The demand for reasons was laid down by the dissenters in Bowers v. Hardwick (1987).

This chapter examines the different forms of plural marriage and provides some historical background and context, focusing on the long-running conflict around polygamy in the Mormon Church in North America. It asks whether we can justify prohibiting or denying recognition to polygamous marriages, whether we ought to drop restrictions based on numbers and focus on the quality of people's relationships, and on what grounds nonrecognition and discouragement of polygamy can be justified. It also considers the so-called “polyamory” and argues that same-sex marriage and polygamy have little in common, aside from being deviations from “traditional” monogamy. Finally, it explores plural marriage as a doctrinal tenet of the Mormons and the 1947 Supreme Court case Reynolds v. United States.

This chapter uses the framework developed in Chapter 3 to examine same-sex marriage. Topics discussed include same-sex marriage litigation, the nature of marriage, and how same-sex marriage litigation strategies produce and partake of a self-governance project that not only confines unruly sexuality to binary sexual categories but also works to erase and disparage gayness itself.

This concluding chapter summarizes some of the main points of the book's argument regarding same-sex marriage, marriage, and monogamy. It first considers how same-sex marriage might change marriage for all before reflecting on what marriage tells us about the ideal of an ethically neutral state and liberalism as a public philosophy. It argues that same-sex marriage makes monogamous marriage stronger as a liberal and democratic social institution. From the standpoint of justice, the chapter explains how monogamous marriage helps imprint the DNA of equal liberty onto the very fiber of family and sexual intimacy. It contends that the distinctiveness of marriage as a plan of life goes beyond its role in securing justice, that lifelong monogamous marital commitment is a distinctive plan of life. It concludes by suggesting that, with respect to other complex aspects of law pertaining to marriage and family relations, the law should change incrementally.

Although there is a split of authority on the issue, some state courts have ruled that it is unconstitutional to deny gay or lesbian couples the civil benefits and rights that are available to heterosexual couples who are married. These decisions extend the legal benefits of marriage, but not the right to marry itself, to same-sex couples. However, in 2003, in a momentous decision, the Supreme Court of Massachusetts ruled that it was a violation of the state constitution for the commonwealth to deny the right to marry to persons of the same sex. Court decisions concerning civil union and marriage are based on the principle of equality and the right of privacy. This chapter thoroughly examines the opinions entered in the Massachusetts case and analyzes the arguments for and against same-sex marriage.

George W. Bush depended on evangelical voters for his election, and he maintained a close relationship with Christian Right leaders, who supported him on the Iraq War even when other Americans did not. Christian Right pressure forced his administration to endorse a constitutional amendment against same-sex marriage. But evangelicals were disappointed by their lack of legislative victories in Bush’s second term. They blamed the “liberal” judiciary for their failures but ultimately became disillusioned with Bush when they clashed with the administration over a Supreme Court nomination. By the end of the Bush presidency, some pundits predicted the collapse of the Christian Right, but strong evangelical support for the McCain-Palin ticket in 2008 demonstrated evangelicals’ continued loyalty to the Republican Party. Yet it also appeared that the Christian Right’s political style was changing, as younger evangelicals embraced the conciliatory approach of megachurch pastors such as Rick Warren.