Alvare on Our Legal Tradition: Connecting Marriage With Children


Helen Alvare of George Mason School of Law and a senior fellow at the Witherspoon Institute argues in this first part of a two-part series for The Public Discourse that "The Supreme Court was more right than it knew during the past two centuries as it identified the state’s interest in marriage as children and their formation":

Why is there a gulf between those who see same-sex marriage as an impossible legal and cultural revolution, a bridge too far, and those who see it as the logical next step on a path well-trodden in family law? In part, it is the difference in perspective between those familiar with classical expressions of the goods and goals of marriage found in over a century of Supreme Court decisions, and those with their eyes fixed upon more recent legal developments that call those goods into question or ignore them.

Those who champion marriage between a man and a woman would like to see the Supreme Court settle the matter according to a long series of precedents treating procreation and child-rearing as primary state-recognized goods of marriage. But given that one ought to be realistic about judicial willingness today to ignore precedent in favor of some perceived zeitgeist, an additional strategy to preserve the link between marriage and children in the Court’s reasoning is warranted.