The Uncertain Future of Marriage and the Alternatives

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other forms of “marriage-lite” to commitment-intensive options like covenant marriage. The other approach, “equal inclusion,” emphasizes broader access to regular marriage itself, and is exemplified by the egalitarian, civil rights-focused, and deeply marriage-affirmative views of the Massachusetts Supreme Judicial Court in Goodridge v. Dep’t of Public Health. This Essay goes on to contend that although these two reform approaches are quite different, they share a common vision of how the law of marriage and coupling should be shaped by the social reality of citizens’ lives rather than by abstract traditional archetypes, leaving both approaches more-or-less on the same side in the larger culture war being waged over the future of marriage and family law. There is still potential for serious conflict, however, because although both approaches are skeptical of idealized tradition, they each remain nested in a diverse and disparate array of other aspirational norms that may lead them to threaten each other’s long-term institutional agendas