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16 - Divorcing Marriage and the State Post-Obergefell

from Part IV - Rethinking Marriage After Obergefell

Published online by Cambridge University Press:  11 May 2018

Robin Fretwell Wilson
Affiliation:
University of Illinois
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Summary

Faced with deep unease over marriage’s public meaning after Obergefell, legislators and others advance a seductively simple solution: “Get the government out of the marriage business.” This Chapter critiques specific proposals to unwind civil and religious marriage emerging in states like Missouri and Indiana. It links post-Obergefell legislative proposals to, ironically, older left-leaning arguments to “abolish marriage.” It gives a typology of proposals to effect this divorce, running the gamut from simply redubbing civil marriages as civil unions, to scrapping marital status in favor of enforcing parties’ contractual agreements, to allowing religious ceremonies to create religious marriages with no civil effects. Radically transforming the state’s relationship to marriage risks disturbing the cocoon of norms around marriage, like faithfulness, permanence, and physical security—norms reinforced when religious couples participate in the civil institution of “marriage.” The Chapter explores practical questions raised by legislative proposals, concluding that society should be loath to unwind the religious and civil dimensions of marriage since the consequences may be so profound.
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Publisher: Cambridge University Press
Print publication year: 2018

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