Family Law in the Secular State and Restrictions on Same-Sex Marriage: Two Are Better Than One
Mary Becker | 2001 U. Ill. L. Rev. 1
For thousands of years, western society has defined marriage as the union of a man and a woman, and courts in the United States have relied on this definition in decisions denying same-sex couples the right to legally marry. In the following article, originally presented as part of the University of Illinois College of Law David C. Baum Memorial Lecture Series on Civil Liberties and Civil Rights, Professor Mary Becker questions the notion that marriage is necessarily limited to heterosexual relationships.
Professor Becker examines the origins of our marriage tradition, from the pre-Christian cultures of Israel, Greece, and Rome through the medieval Canon law of the Roman Catholic Church to the modern-day United States, in order to show that, despite some differences, marriage in western cultures has been a patriarchal institution centered around the needs or obsessions of men, with the underlying purpose of reproduction. Using empirical data, she then explores the real good in marriage-what we now know about the connection between marriage and human well-being-to assert that the primary good of marriage is the "pair-bond," an intimate human connection that transcends gender and procreation. Professor Becker details how, for many individuals, their best chance of a successful pair-bond is with a same-sex partner. She recommends that government, in its regulation of marriage, should promote a model that has as its ultimate purpose the furthering of human happiness and well-being, recognizing that two are better than one. Such a model, Professor Becker concludes, would provide for the legal recognition of same-sex marriage.
*Professor of Law at DePaul University College of Law.