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Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women's social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which most children were raised. Today, when about 40 percent of marriages end in divorce, marriage is a less stable relationship than it once was. It is also less popular; many couples choose to live in informal unions instead of marriage, and many children are raised by unmarried mothers, other family members, or by unmarried heterosexual or gay couples.

These changes pose a challenge to foundational policies of family law. Formal marriage is a privileged legal status that receives substantial government protection and benefits, and is also defined by many legally enforceable rights and obligations between the spouses. In a world in which marriage no longer functions as well as it once did to provide care for children and to serve other family dependency needs, it is quite appropriate to ask whether the special legal status of marriage can be justified any longer.

In this Article, I offer a modest defense of the privileged legal status of formal marriage (as I will define this union) and of neutrality toward informal intimate unions. My claim is that the special treatment of marriage can be justified, even if one has no nostalgic fondness for traditional family roles and rejects the moral superiority of marriage over other family forms. Through marriage, the government can delegate to the family some of society's collective responsibility for dependency. Retaining the privileged legal status of marriage in a contemporary setting can (and should) constitute part of a comprehensive policy of family support that acknowledges the pluralism of modem families.


Civil Rights and Discrimination | Family Law | Law