Sex, Procreation, and the State Interest in Marriage

@article{citeulike:1046383, abstract = {Why is marriage centered on the sexual act? This Note explores the historical justifications for the law's creation of a special status for sexual partners, as revealed in court decisions assessing the validity of marriages in which \"normal\" intercourse was allegedly refused or impossible. While those justifications revolve around the procreative potential of intercourse, it is the desire to limit procreation, rather than encourage it, that courts have invoked: The State's concern has been illegitimacy. Today, the prevalence and widespread acceptance of extramarital sex and birth control, accompanied by heightened respect for reproductive privacy, have rendered anachronistic the conception of marriage as a regulator of sex. The societal interests that remain are only loosely linked to intercourse, if at all: enforcing support obligations and stabilizing family units. Thus the continuing assumption that marriage is sexual--at the heart of the same-sex marriage debate and still embodied in law--has outlived its usefulness.}, author = {Borten, Laurence D. }, citeulike-article-id = {1046383}, journal = {Columbia Law Review}, keywords = {family, law, marriage}, number = {4}, pages = {1089--1128}, posted-at = {2007-01-17 17:12:35}, priority = {2}, title = {Sex, Procreation, and the State Interest in Marriage}, url = {http://www.jstor.org/stable/1123651}, volume = {102}, year = {2002} }

TY - JOUR ID - citeulike:1046383 L3 - citeulike-article-id:1046383 TI - Sex, Procreation, and the State Interest in Marriage JF - Columbia Law Review VL - 102 IS - 4 SP - 1089 EP - 1128 N2 - Why is marriage centered on the sexual act? This Note explores the historical justifications for the law's creation of a special status for sexual partners, as revealed in court decisions assessing the validity of marriages in which "normal" intercourse was allegedly refused or impossible. While those justifications revolve around the procreative potential of intercourse, it is the desire to limit procreation, rather than encourage it, that courts have invoked: The State's concern has been illegitimacy. Today, the prevalence and widespread acceptance of extramarital sex and birth control, accompanied by heightened respect for reproductive privacy, have rendered anachronistic the conception of marriage as a regulator of sex. The societal interests that remain are only loosely linked to intercourse, if at all: enforcing support obligations and stabilizing family units. Thus the continuing assumption that marriage is sexual--at the heart of the same-sex marriage debate and still embodied in law--has outlived its usefulness. KW - family KW - law KW - marriage AU - Borten, Laurence PY - 2002/// UR - http://www.jstor.org/stable/1123651 ER -