Document Type
Article
Publication Date
3-1-2020
Rights
Abstract
For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake to lose its exclusive claims to licit sex and legitimate procreation, personal autonomy in those very domains gained independent constitutional protection. Drained of its conjugal essence, today’s constitutional right to marry is thus an anachronism, the vestige of a bygone consensus about what, if anything, “marriage” fundamentally is.
Publication Title
Utah Law Review
First Page
69
Last Page
176
Recommended Citation
Michael Boucai,
Before Loving: The Lost Origins of the Right to Marry,
2020
Utah L. Rev.
69
(2020).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/968