GENDERLESS MARRIAGE AS A CLOSE PERSONAL RELATIONSHIP: Maggie Gallagher

The appeals court decision in New Jersey upholding marriage represents a new set of arguments. One set, including the phrase "genderless marriage" used by the court, comes from Monte Stewart and Bill Duncan from the Marriage Law Foundation. The concurring opinion borrows heavily from the work of Dan Cere, who is the author of our new family law report, "The Future of Family Law." He is responsible for pointing out that an alternate theory of marriage is being adopted by the courts and much of the academy based on "close relationships theory," a phrase the judge also used.

These are significant developments in the law and the public debate.

Some excerpts from the court's decision and concurrence:
Majority opinion, at 31-32:

The essential premise of the Goodridge plurality opinion--that the institution of marriage is simply an "exclusive commitment of two individuals to each other," id. at 943--constitutes a normative judgment that conflicts with the traditional and still prevailing religious and societal view of marriage as a union between a man and a woman that plays a vital role in propagating the species and provides the ideal setting for raising children. Consequently, unlike Loving, Goodridge does not establish a right of equal access to marriage, regardless of race or any other invidiously discriminatory factor, but instead significantly alters the nature of this social institution.

Concurring opinion, at 3-4

No doubt, plaintiffs have taken their bearings from the "close personal relationship" model of marriage espoused in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Citing "respect for individual autonomy," id. at 949, the Goodridge plurality defined marriage simply as "the exclusive and permanent commitment of the married partners to one another[]," id. at 961; "the voluntary union of two persons as spouses, to the exclusion of all others[]," id. at 969; and "at once a deeply personal commitment to another human being and a highly public celebration of ideals of mutuality, companionship, intimacy, fidelity, and family." Id. at 954. Given this narrow view, it is no wonder the Goodridge plurality concluded that "our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family." Id. at 961.

This distillation of marriage down to its pure "close personal relationship" essence, however, strips the social institution "of any goal or end beyond the intrinsic emotional, psychological, or sexual satisfaction which the relationship brings to the individuals involved." Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11, 81 (2004) (quoting D. Cere, "The Conjugal Tradition in Post Modernity: The Closure of Public Discourse?" at 6 (2003) (unpublished)).

Concurring opinion, at 5

When plaintiffs, in defense of genderless marriage, argue that the State imposes no obligation on married couples to procreate, they sorely miss the point. Marriage's vital purpose is not to mandate procreation but to control or ameliorate its consequences -- the so-called "private welfare" purpose. To maintain otherwise is to ignore procreation's centrality to marriage.

Concurring opinion, at 7

Plaintiffs simply have not posited an alternative theory of marriage that would include members of the same sex, but still limit the arrangement to couples, or that would otherwise justify the distinction.

entire decision is here
posted by Eve at 4:14 PM VOTE

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