Religion, Polygamy, and Non-Traditional Families: Disparate Views on the Evolution of Marriage in History and in the Debate over Same-Sex Unions

By Kindregan, Charles P., Jr. | Suffolk University Law Review, Winter 2007 | Go to article overview

Religion, Polygamy, and Non-Traditional Families: Disparate Views on the Evolution of Marriage in History and in the Debate over Same-Sex Unions


Kindregan, Charles P., Jr., Suffolk University Law Review


I. INTRODUCTION

For many decades the definition of marriage lay at the backwater of family law analysis. This began to change over a decade ago when the Supreme Court of Hawaii ruled favorably on an attempt by same-sex couples to obtain marriage licenses, (3) prompting the United States Congress to respond by enacting the "Defense of Marriage Act." (4) Since then, state legislatures in a few states have conferred some of the benefits of marriage on same-sex couples entering into civil unions (5) or domestic partnerships. (6) For example, the New Jersey Supreme Court ruled that same-sex couples must be accorded equal treatment under the law with opposite-sex couples who choose to marry, but left it to the legislature to decide if this meant marriage or some other marriage-like status. (7) Meanwhile, Canada, a common law country, redefined marriage to include same-sex couples, (8) and several other countries did the same. (9) In the United States, as discussed below, the Massachusetts Supreme Judicial Court (SJC) has rewritten the common-law definition of civil marriage by a judicial decision.

Another noteworthy development in the definition of marriage is a proposal developed by the American Law Institute, which effectively equates marriage to the relationship of unmarried domestic partners who maintain a common household, have a common child, and meet other requirements. (10) The proposal would bestow on these couples property rights historically associated with marriage. (11) If enacted into law, this idea would require cohabitating individuals who qualify for such a "marriage-like" designation to specifically opt out of the legal consequences of their relationship if they wish not to be bound by the law. These and other developments, such as civil unions and domestic partnerships, have put marriage and its would-be imitators back on the public and political agenda.

In the United States, the public debate over same-sex marriage has focused attention on the nature of marriage. When the Massachusetts SJC ruled that same-sex couples have the right to obtain civil marriage licenses under the state constitution in Goodridge v. Department of Public Health, (12) the majority opinion contained numerous historical references. Chief Justice Marshall, writing the majority opinion, aptly commented that "[o]ur concern ... is whether historical, cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry." (13)

The Goodridge decision was the first made by the highest court in any American state to recognize the right of same-gender persons to marry. In its ruling, the Massachusetts SJC brought an edge to the national debate about the nature of marriage. This debate has since touched on historical, cultural, religious, social, and constitutional themes inherent in the discussion of same-sex marriage. (14) This Article examines these various themes in light of the continuing debate over the law governing marriage in the United States and elsewhere.

The decision by one state to recognize a form of marriage different from the traditional definition of marriage--defined as "a legal union between one man and one woman as husband and wife" (15)--was bound to encounter widespread controversy here, as it has in other Western countries. The debate over the definition of marriage has been so intense that the President of the United States actually supported an amendment to the Constitution that would limit marriage to the traditional definition. (16) A debate among legal scholars about the issues underlying the very concept of marriage has also intensified to the point where the American Law Institute suggests that the obligations of marriage might justly be imposed on persons living in non-marital cohabitation relationships, unless they choose to contract out of such duties. (17)

This Article attempts to provide historical perspective to assist in understanding the marriage debate both in the United States and other countries. …

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