ARTICLE: Defining the Scope of the Constitutional Right to Marry: More Than Tradition, Less Than Unlimited Autonomy Skip over navigation
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Copyright (c) 1994 Notre Dame Law Review
University of Notre Dame

ARTICLE: Defining the Scope of the Constitutional Right to Marry: More Than Tradition, Less Than Unlimited Autonomy


70 Notre Dame L. Rev. 39


Donald L. Beschle *



Since the recognition of a constitutional right of privacy, 1 the scope of that right has been unclear. Consistently, however, it has been linked in some way to the concept of the family. 2 At the core of the modern "right of privacy" are at least limited rights to make decisions whether to have children, 3 to educate and otherwise raise those children, 4 and to live together with the members of one's nuclear or extended family. 5 Thus, it is unsurprising that courts and commentators have formed something of a consensus supporting the existence of a constitutional right to marry. 6 But this consensus fragments over the question of whether that right is limited to the formation of a traditional, monogamous, heterosexual union, theoretically for life, or whether it also includes legal protection for voluntary arrangements which lack any, or all, of these features.

At this time, most courts lean toward the narrow view protecting traditional marriage, 7 while most commentators seem to favor the broader view. 8 But these sources seem to agree generally that the question is one which poses a stark choice between complete government neutrality concerning the nature of the family, on the one hand, and complete constitutional indifference to government intrusion into nontraditional living arrangements, on the other.

Each of these positions is seriously flawed. In order to frame an alternative, however, it is necessary to dissect the concept of a family, the nature of constitutional rights ...
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