The Evolution - or End - of Marriage?: Reflections on the Impasse Over Same-Sex Marriage

Abstract

The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil marriage that has already occurred. Invocations of gender complementarity between parents as essential to child well-being also conflict with the growing recognition in family law that children's best interests can be served by gay and lesbian parents. Canada's path toward same-sex marriage suggests that impasse need not be inevitable. In the United States, the impasse stems in part from the problem that same-sex marriage serves as an emblem of everything that threatens marriage.

Keywords: marriage, same-sex marriage, gay and lesbian parents, best interests of the child