Marriage has evolved into a civil institution through which the state formally recognizes and ennobles individuals’ choices to enter into long-term, committed, intimate relationships and to build households based on mutual support. With the free choice of the two parties and their continuing consent as foundations, marriage laws treat both spouses in a gender-neutral fashion, without regard to gender-role stereotypes.
At least, most of the time. Except in Massachusetts, Iowa, Vermont, New Hampshire, Connecticut, and Washington, D.C., men may only marry women, and women may only marry men. This requirement is an exception to the gender-neutral approach of contemporary marriage law and to the long-term trend toward legal equality in spouses’ marital roles.
Those who would maintain this exception argue that the extension of marital rights to same-sex couples would render marriage meaningless. They say that the sexual union of a man and a woman, capable of producing children, is essential to marriage and is its centerpiece.
The history of marriage laws tells a more complex story. The ability of married partners to procreate has never been required to make a marriage legal or valid, nor have unwillingness or inability to have children been grounds for divorce.
And marriage, as I have argued, has not been one unchanging institution over time. Features of marriage that once seemed essential and indispensable proved otherwise. The ending of coverture, the elimination of racial barriers to choice of partner, the expansion of grounds for divorce—though fiercely resisted by many when first introduced—have strengthened marriage rather than undermining it. The adaptability of marriage has preserved it.
Marriage persists as simultaneously a public institution closely tied to the public good and a private relationship that serves and protects the two people who enter into it. That it remains a vital and relevant institution testifies to the law’s ability to recognize the need for change, rather than adhere rigidly to values or practices of earlier times.
Enabling couples of the same sex to gain equal marriage rights would be consistent with the historical trend toward broadening access. It would make clearer that the right to marry represents a profound exercise of the individual liberty central to the American polity.
