Marriage and the Law

Time for a Divorce?

The Massachusetts Supreme Judicial Court’s 4-3 ruling, in Goodridge v. Department of Public Health, that the Massachusetts constitution—if not the federal Constitution—requires the state to allow same-sex marriages has thrown nearly everyone into a good old-fashioned tizzy.  The Massachusetts court somehow discovered that it was “arbitrary” and “capricious” and therefore legally impermissible to limit the legal benefits of marriage to heterosexual couples.  In response, some are urging an amendment to the U.S. Constitution declaring that marriage can only occur between two people of opposite sex; some are trying to get the Massachusetts legislature to repudiate the reasoning of its court; and many more are wailing, gnashing their teeth, and decrying the low moral state into which the culture and the judiciary have fallen.  All of this is understandable, but the truth is that, in the Anglo-American system, marriage has always had an uneasy relationship with secular law, and, to the extent that the Massachusetts decision reminds us of this, there might actually be something to be said in favor of the decision.

Consider the words of Sir William Blackstone, writer of the classic Commentaries on the Common Law of England (1765-68), the book that was second only to the Bible in circulation in early 19th-century America.  Blackstone was no champion of...

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