Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, August 2, 2011

Wardle: "The 'Constitution' of Marriage, and the 'Constitution' of Nations"

Lynn Wardle (BYU Law School) has posted "The 'Constitution' of Marriage, and the 'Constitution' of Nations" (45 Univ. of San. Fran. L. Rev. (2010)) on SSRN.  Here is the abstract:

This article examines the interrelationship between marriage, which is the foundation of society, and the legal constitution, which is the foundation of the legal and political order. In order to understand the constitution of marriage, philosophers from Ancient Greece, the Enlightenment, and the Founding Era of the United States are referenced to illustrate that marriage has been acknowledged as fundamental across society and time. In addition, it has been profoundly linked with democracy and essential principles of self-governance. This article also examines the founding of modern Israel as another reference point for the centrality of family. Because marriage and family are so essential, they are afforded special, unique protection in law. After reviewing the fundamentality of marriage, the article asserts that both the constitution of marriage and the Constitution of the nation are endangered, and including same-sex unions in the definition of marriage will weaken the institution and thus weaken the foundation of liberal democracy.


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