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15 - Civil Rites

The Gay Marriage Controversy in Historical Perspective

Published online by Cambridge University Press:  07 October 2011

By
Joanna L. Grossman
Edited by
Robert W. Gordon  and
Morton J. Horwitz
Joanna L. Grossman
Affiliation:
Hofstra University
Robert W. Gordon
Affiliation:
Yale University, Connecticut
Morton J. Horwitz
Affiliation:
Harvard University, Massachusetts
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Summary

Family law throughout American history has developed amidst controversy. Although the work of many family lawyers today is routine – uncontested divorces and formulaic claims for child support are the “bread and butter for thousands of lawyers” – family law, writ large, has been the locus of hard-fought battles over morality, privacy, state control over private life, civil rights, and federalism.

The most trenchant battle in family law today is over the ability of same-sex couples to marry. This chapter considers the modern same-sex marriage controversy through the lens of history. As researcher, shrewd observer, and storyteller, Lawrence Friedman is one of the original and best contributors to our collective understanding of family law history. His work provides both overarching themes and ground-level observations that are useful for reflecting on the ongoing controversy about same-sex marriage.

THE MODERN PROBLEM

The legalization of same-sex marriage by first one state and then four more and the District of Columbia – and the express condemnation of it by more than forty others – has reintroduced the age-old problem of non-uniform marriage laws and interaction among states with different laws regulating family creation and dissolution. Massachusetts launched the same-sex marriage revolution with the landmark ruling of its highest court in Goodridge v. Department of Public Health in 2003. The state's highest court held that a ban on same-sex marriages “works a deep and scarring hardship on a very real segment of the community for no rational reason” and violates the state constitution's guarantees of both equality and due process.

Type
Chapter
Information
Law, Society, and History
Themes in the Legal Sociology and Legal History of Lawrence M. Friedman
 , pp. 253 - 270
Publisher: Cambridge University Press
Print publication year: 2011

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