Academic journal article William and Mary Law Review

The Integrity of Marriage

Academic journal article William and Mary Law Review

The Integrity of Marriage

Article excerpt

TABLE OF CONTENTS

INTRODUCTION                                                 456
  I. CONSTITUTING MARRIAGE                                   465
 II. INTEGRITY OF LAWS AND NORMS                             472
     A. The Relationship Between Laws and Norms              474
     B. Mechanisms of Legal Integration and Disintegration   479
III. INTEGRITY ACROSS JURISDICTIONS                          484
     A. Sources of Marriage Law                              485
     B. Jurisdictional Disintegration                        488
        1. Federal and State                                 488
        2. Between States                                    490
 IV. EVALUATING INTEGRATION                                  494
     A. Marriage and Parenthood                              494
        1. Consistency and Related Values                    495
        2. Information and Expectations                      497
     B. Costs of Integration                                 505
  V. INSIGHTS FROM INTEGRATION                               507
     A. Marriage and Parenthood                              507
     B. Relationship Pluralism                               512
CONCLUSION                                                   518

INTRODUCTION

In addition to castigating the Court's central holding that the Fourteenth Amendment requires states to allow same-sex couples to marry, the dissenters in Obergefell v. Hodges unleashed a surprising broadside on the bundle of state and federal laws that constitute the positive law of marriage. (1) Consider the following statement by Justice Scalia: "The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences.... Those civil consequences... can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws." (2) Or this statement by Justice Thomas:

To the extent that the Framers would have recognized a natural right to 
marriage that fell within the broader definition of liberty, it would 
not have included a right to governmental recognition and benefits. 
Instead, it would have included a right to... mak[e] vows, hold[ ] 
religious ceremonies celebrating those vows, rais[e] children, and 
otherwise enjoy[ ] the society of one's spouse--without governmental 
interference. (3)

To these Justices, the positive law of marriage could be anything or nothing at all.

These statements challenge the assumption that marriage should be what Justice Kennedy's majority opinion in Obergefell called a "unified whole," the inchoate notion that marriage should naturally encompass a core set of rights and duties--both "symbolic" and "material"--related to "establishing] a home and bringing] up children." (4) Under Justice Kennedy's view, the positive law sets marriage apart as "a two-person union unlike any other in its importance to the committed individuals," (5) providing "permanency and stability" to the marital family, (6) and enabling family members "to understand the integrity and closeness of their own family and its concord with other families." (7) In Justice Kennedy's telling, changes to the positive law of marriage have only served to move marriage closer to its platonic ideal. (8)

This debate between the Obergefell Justices over whether marriage has a necessary or ideal legal content is actively playing out in state courts. For example, recent decisions have challenged the connection between marriage and parentage. States have traditionally assigned parental rights to husbands because of the marital relationship. (9) In Michael H. v. Gerald D., the Supreme Court upheld a presumption of paternity statute over a challenge by a man with a 98 percent probability of being the child's biological father. (10) The Court noted that "given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and. …

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