Document Type

Article

Publication Date

2008

Abstract

In 1993, the Supreme Court of Hawaii issued a decision that forced the question of same-sex marriage from the hinterland of academic speculation to the front pages of newspapers all over the country. The nation was stunned when the court in Baehr v. Lewin held that same-sex marriage might be compelled by the state constitution of Hawaii. Since the Baehr decision, same-sex marriage has received a significant amount of attention. Many states have passed “baby DOMAs,” all of which limit marriage to the union of a man and a woman. In addition, several states have passed constitutional amendments that accomplish the same end. By contrast, activist groups and individual complainants filed test cases in several states where they have seen courts declare that same-sex couples were entitled either to marriage itself or to all of the benefits of marriage accorded to heterosexual couples. The legislatures of still other states have created new regimes governing the formalization of gay and lesbian relationships. These events have shaken the cultural landscape of American society; as a result, many people have begun to evaluate their beliefs about the values underlying marriage. Proponents of same-sex marriage, for instance, argue that marriage stands for various principles and ideals, which include the following: the lifelong commitment among family members to love and care for one another; the provision of a stable atmosphere for raising children; the “settling” effect of marriage; and the need for companionship. Traditionalists who oppose same-sex marriage have identified other fundamental principles: biological procreation; the role complementarity of the sexes; and the maintenance of tradition. One of the most important, and recurrent, claims set forth by opponents is the notion that traditional marriage is necessary for the continued maintenance of civilization itself, claiming that there is an essential nexus between different-sex marriage and the proper development of civic spirit in American constitutional democracy. This paper proposes to enter the debate by focusing primarily on the manner in which families--particularly married families - inculcate the virtues necessary for self-government. After exploring the relationship between married family life and civic virtue, the paper will (1) identify autonomy as a critical virtue that is necessary for raising citizens in a modern, liberal, tolerant democracy, (2) locate the connection between marriage and the transmission of this virtue, and (3) argue in favor of the ability of gays and lesbians to convey this virtue.

Source Publication

UCLA Women's Law Journal

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