The Integrity of Marriage

By Matsumura, Kaiponanea T. | William and Mary Law Review, November 2019 | Go to article overview

The Integrity of Marriage


Matsumura, Kaiponanea T., William and Mary Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Integrity of Marriage
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.