Academic

Culhane on Public Health & Same-Sex Marriage

By Lawrence Solum

John G. Culhane (Widener University - Delaware Campus) has posted Beyond Rights and Morality: The Overlooked Public Health Argument for Same-Sex Marriage (Law & Sexuality, Vol. 17, 2008) on SSRN. Here is the abstract:

The debate surrounding marriage equality has largely focused on whether same-sex couples have a fundamental right to marry and on the inequality of denying such rights. This focus is understandable from a legal perspective, as courts stand as protectors of minority rights. Equality arguments are limited by their own logic, however, as they too-easily lead to the erroneous conclusion that civil unions that confer the benefits of marriage without the name are sufficient to grant equality to same-sex couples.

Recognizing the limits of legal arguments about equality, some scholars have made laudable efforts to move beyond a rights-based analysis, arguing that marriages, including those by two people of the same sex, serve an important unitive function, and that marriage is, for many, an important part of identity and self-definition. Those opposing marriage equality counter that same-sex marriages (and the sexual conduct of same-sex couples) is simply wrong.

This article contends that the debate has given insufficient attention to the public health and policy justifications for marriage equality. Borrowing from contestable social science research suggesting that marriage has benefits not only to the couple but to the broader society, the article advances the preliminary case that, to the extent such population-wide benefits are real, they would at least to some extent be furthered by allowing same-sex couples to marry. The conclusion is that focusing on such arguments could tip the balance in favor of marriage equality.

Full post as published by Legal Theory Blog on February 02, 2009 (boomark / email).