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Anita Bernstein






The place of marriage in a just and fair constitutional democracy reverberates as one of the most challenging questions posed in debates over family law and policy. Should government properly support and promote marriage, defined as the union of one man and one woman, as the proxy for the form of family best able to undergird our polity by allowing realization of the goods associated with family life and carrying out the important functions society assigns to families? Or is marriage's privileged place undeserved because it is an imperfect and inadequate proxy for these purposes. This article argues that, although family law should more firmly embrace equality among families by supporting a broader array of families, marriage (opened up to same-sex couples) deserves governmental support because it is a social institution that facilitates two significant dimensions of family life: (1) the intergenerational dimension of families, that is, social reproduction, and (2) the dimension of intimate association between adults who form families. However, when government engages in efforts to support and encourage marriage, the political value and constitutional norm of sex equality, as they bear on family life, should guide its efforts. Measured against this requirement, contemporary proposals to promote marriage, made by the social movement known as the marriage movement and by politicians who endorse marriage promotion as a tool of welfare policy, fall short.

Marriage promoters contend that shoring up marriage is vital to social health. I examine the various strands of the social health argument: the appeal to adult happiness, to child well-being, to reducing negative externalities, and to civilizing men. I also address the special concerns that arise when welfare reform is used as a vehicle to promote marriage among low-income members of society. I conclude that, to date, marriage promoters fail to attend to the important relationship between marriage quality and marriage equality. They are ambivalent about the place of sex equality in the recipe for promoting healthy marriage. Governmental efforts to support healthy marriage, including educative efforts, should more firmly embrace the public value and constitutional principle of sex equality. Such a commitment does not impose an impermissible governmental orthodoxy and thwart pluralism.

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