What's in a Name? The Case for the Disestablishment of Marriage

Abstract

The most remarkable social change of the past two decades has been the movement for gay rights focused on the right to marry. The movement for gay marriage has made urgent the question of what the right to marry might be and indeed what marriage is. Marriage is, among other things, a sacred and expressive institution imbued with robust notions of the good life, but it is also a state license. That is, in our society, marriage is established as religion is not.

This paper addresses the question begged by centuries of American jurisprudence: Is marriage after all, as the Supreme Court in Reynolds v. United States presumed, an institution with 'which government is necessarily required to deal'? To demonstrate the costs that come with state establishment of marriage and to make marriage visible as a system of state intervention rather than a natural fact, I look at marriage through the lens of a largely forgotten piece of American legal history: the Mormon polygamy cases, which vividly demonstrate the contradictions and injustices inherent in the liberal state’s involvement in marriage.

This paper’s claims are that, first, excluding same-sex couples from state-established marriage cannot be defended and violates the Constitution. However, second, this exclusion is specifically a violation of the Equal Protection Clause, not the Due Process Clause, and therefore disestablishment of marriage is constitutionally permissible. Third, establishment of marriage leads to violations of our liberal ideals without corresponding benefit. The state can and should get out of the marriage business.