The Practice of Marriage

Boston University law prof Katharine Baird Silbaugh has posted her new paper, The Practice of Marriage.  (HT: Solum)  Here is the abstract:

Over the past 40 years, robust law has developed addressing the treatment of non-marital cohabitants. Consequently, the government's gatekeeping role operates somewhat differently than before. States are now more clearly policing the social benefits and the symbolism accompanying marriage, having agreed to provide many of its legal benefits to non-marital couples. This article investigates the state's current role in articulating and managing, as well as responding to, the social meaning of marriage in the context of three recent high profile cases: the prosecution of polygamist Tom Green, the Goodridge same sex marriage case in Massachusetts, and the challenge to Michael Schiavo's ability to make health-care decisions for his wife. In all three cases we see an effort by courts to respond to dilemmas posed by the dynamic relationship between social and legal marriage. In these high profile cases, courts attempt to maintain control not only over the legal meaning of marriage, but its social meaning as well. This centralized social version of marriage is unfortunate, as it puts the state at the center of disputes over social meaning that it is ill-equipped institutionally to handle.

I look forward to reading this paper, as her analysis potentially speaks not only to family law, but to subsidiarity and the common good.