Marriage is first and foremost a social institution, created and sustained by civil society. Law sometimes creates institutions (the corporation is a prime modern example). But sometimes the law recognizes an institution that it does not and cannot meaningfully create. No laws, and no set of lawyers, legislators, or judges, can summon a social institution like marriage into being merely by legal fiat. Marriage and family therefore can never be reduced to a legal construct, a mere creature of the state.
As scholars in other disciplines come to shed increasing light on the importance of marriage as a key social institution, family law as a discipline is moving in the opposite direction, embracing family diversity as the moral ideal which should undergird family law. Even as American society in general begins to refocus on how marriage can better serve the needs of children, much of family law as a discipline and practice remains preoccupied with the sexual choices and rights of adults.
The basic understanding of marriage underlying much of the current same-sex marriage discourse is seriously flawed, reflecting all the worst trends in marriage and family law generally. It is adult-centric, turning on the rights of adults to make choices. It does not take institutional effects of law seriously, failing to treat with intellectual seriousness any potential consequences that changing the basic legal definition of marriage may have for the children of society. Sadly, an attack on the idea that family structure matters now forms a part of some advocatesâ?? case for same-sex marriage in both the courts and the public square.
A legal or policy reform strengthens marriage as a social institution when it:
Protects the boundaries of marriage, clearly distinguishing marriedcouples from other personal relations, so that people and communities can tell who is married, and who is not. The harder it is to distinguish married couples from other kinds of unions, the harder it is for communities to reinforce norms of marital behavior and the more difficult it is for marriage to fulfill its function as a social institution.
Treats the married couple as a social, legal, and financial unit. When the law, through the tax code or other means, disaggregates the family and treats married men and women as if they were single, this does not represent â??neutrality.â?? Because marriage is in fact a real economic, emotional, social, parenting, and sexual union, the law must in justice treat married couples as a unit, rather than as unrelated individuals.
Marriage and the Law: A Statement of Principles