The institution of marriage and other domestic relations
Lynn D. Wardle, 𝘛𝘩𝘦 𝘪𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘮𝘢𝘳𝘳𝘪𝘢𝘨𝘦 𝘢𝘯𝘥 𝘰𝘵𝘩𝘦𝘳 𝘥𝘰𝘮𝘦𝘴𝘵𝘪𝘤 𝘳𝘦𝘭𝘢𝘵𝘪𝘰𝘯𝘴, 3 Aᴍsᴛᴇʀᴅᴀᴍ L.F. 160 (2011).
The global movement to provide domestic relationship status and benefits to same-sex couples has resulted in five different kinds of legal responses: (1) redefining marriage to include same-sex couples; (2) creation of marriage-equivalent civil union domestic relationships, with most or all of the legal incidents of marriage; (3) creation of a carefully customized domestic partner relationship providing access to some particular relational benefits; (4) allowing the private creation of legitimate same-sex relationships with private ordering of the relationships by the parties themselves (by contract, wills, etc.); and (5) total rejection of any legal recognition of same-sex relationships, usually by criminal prohibition. The polar extreme responses are inappropriate. This paper focuses on the flaws of legalizing same-sex marriage. Gender-integrating marriage is a very important pre-legal social institution, and positivist attempts to redefine marriage to include same-sex relations are conceptually flawed, like calling a tail a leg. Most nations today provide constitutional protection for marriage because it is widely considered to be a core, foundational social institution; and substantial protection of the dual-gender quality of marriage is manifest in many national constitutions. Efforts to “capture” the legal institution of marriage to promote the agenda of particular social movements have occurred before, but they have produced significant problems for marriage and for society. Legalization of same-sex marriage will transform the social understanding of what marriage is, what it means, and what is expected of married persons in ways that devalue and weaken the social institution of marriage.
3 Amsterdam L. F.
Amsterdam Law Forum