John G. Culhane (Widener University - Delaware Campus) has posted Marriage Equality? First, Justify Marriage (If You Can) (Drexel Law Review, Vol. 1, No. 2) on SSRN. Here is the abstract:
With recent positive developments in Connecticut, Vermont, Iowa, and New York, mixed success in California, and setbacks in Arizona and Florida, the marriage equality movement remains in the center of political, legal, and social debate in the United States. Proponents have argued that granting the right to marry to same-sex couples is compelled as a matter of simple fairness and equality, while opponents have continued to make a host of related—but unconvincing— arguments about the intrinsic meaning of marriage and how this will be lost or compromised if marriage equality takes hold. But below this turbulent surface, courts called upon to solve real problems confronting same-sex couples have expressly or impliedly recognized that a much deeper problem exists: the vast and often unexamined privileging of marriage over other forms of family and other kinds of relationships. Legal scholars, too, have questioned marriage—sometimes by focusing on the privileges that attach to it, but sometimes more broadly, by questioning the status itself. These unavoidable questions reveal that the controversy over same-sex marriage is but the most visible part of a much larger set of issues about equality and social justice.
What public health and policy goals are we trying to further with laws recognizing and subsidizing marriage? How do the signals sent by privileging marriage advance or compromise those goals? Is there a continued justification for marriage, and, if so, ought we consider changing its prerogatives in ways that will further the public good? What might those ways be, and how will (or could) we know whether we have succeeded? This brief Article raises and explores these questions, and asks whether and to what extent the current privileging of marriage is (or is not) justified.
