THE INSTITUTION OF MARRIAGE AND OTHER DOMESTIC RELATIONS

There is a global movement to legalise same-sex unions as a new form of legal domestic relationship. It is manifest in five different legal developments. First, as Appendix I shows, in the past dozen years nine nations have legalised samesex marriage. Second, about a dozen other nations have created a new domestic relationship (called by various names including ‘Civil Unions’ and ‘Pactes Civiles’) which confers a new legal adult intimate relational status on same-sex couples—and in some jurisdictions heterosexual couples—who properly register or otherwise enter such relationship, and allows them to enjoy all or nearly all of the same legal rights, duties, incidents and benefits extended to married heterosexual couples. Third, a few other jurisdictions provide a limited legal relationship status with fewer, more focused legal incidents, rights and benefits not equivalent to the status and incidents of legal marriage but constituting a more narrowly-tailored domestic status and package of benefits for same-sex couples. Fourth, many jurisdictions do not provide any formal public legal domestic relational status or benefits for samesex couples but allow the private creation of legitimate same-sex relationships with private ordering of the relationships by the parties to such relationships (by informal or formal private arrangements, contracts, wills, cohabitation agreements, powers of attorney, etc.). Fifth, in some nations same-sex relationships have no legitimate legal domestic relationship status or benefits and remain criminally prohibited. Thus, there are currently five main legal models that address the questions whether and (if so) how to give legal domestic relationship status to same-sex couples, ranging from criminal prohibition to recognition of same-sex relationships as a new form of legal marriage.

This paper focuses on opposite polar position of redefining legal marriage to treat same-sex relationships as marriages.It suggests that, compared to other alternatives, legalisation of same-sex marriage (like its polar opposite policy of criminal prohibition) is particularly inequitable and inappropriate.That is because it entails unnecessary and detrimental devaluation and weakening of the critical social institution of marriage with no offsetting compensatory benefits for same-sex couples or society in general that could not be obtained without impairing the institution of marriage (via one of the other options).Viewed from an institutional perspective, legalising same-sex marriage is an over-reaction to awkward historical problems of how to properly recognise and regulate same-sex relationships, jeopardising the basic unit of society with the transformative power of inclusion.

I. Social Institution of Marriage and Legal Construction of Marriage 2
Marriage uniting man and woman is a ubiquitous and naturally-existing social institution that has been present in some form in all known societies. 3Marriage as a gender-integrating union associated with important sexual-channelling, procreative, child-rearing, and dependent-protecting functions is a pre-legal, pre-state institution; it existed prior to the existence of states and legal systems. 4at reality has long been recognised in international law.For example, the 1948 Universal Declaration of Human Rights, the foundational document of modern international human rights law, calls the family "the natural and fundamental group unit of society," 5 and expressly protects the gender equality of 'men and women' in forming the institution of marriage (and within it), as a core and essential universal value of human rights in modern (at least western) legal systems. 6Similarly, the Cairo Declaration on Human Rights in Islam, adopted in 1990 by the 45 nations belonging to the Organisation of the Islamic Conference-who are uncomfortable with some aspects of the westernculture-dominated Universal Declaration-provides that: "The family is the foundation of society, and marriage is the basis of its formation.Men and women have the right to marriage (...)" 7 Nearly three dozen international treaties, compacts or conventions provide such description of and protection for the institution of marriage and/or family. 8 These widely respected principles of international law acknowledge and establish two important facts that bear upon the subject of this paper.First, they recognise the essentiality of marriage and family, that marriage and marital family are foundational social institutions.They are not mere creations of the state.The state, the law, does not 'create' marriage any more than it 'creates' children, or air, or land.Rather, it recognises such pre-existing social institutions or realities and regulates them in ways that are intended to preserve and protect the basic institutional resources and serve the public interest.
Second, these principles of international human rights law recognise that men and women are different from each other, and recognise that both genders, male and female, make essential (and complementary) contributions to the crucial social institutions of marriage and to the family. 9Article 2's emphatic statement of the anti-discrimination principle underlines the principle of universality."Everyone" in the Declaration means everyone, "without distinction of any kind.'" 10Moreover, the singling out of marriage for special protection in Article 16 "went far beyond most national legislation of the day with its affirmation of the principle of equal rights between spouses.The idea that the family 'is entitled to protection by society and the State,' on the other hand, was familiar in many countries as legislative policy, had already appeared in several constitutions, and would shortly appear in many others." 11 As Appendix II.2.notes many national constitutions declare family, marriage and motherhood to be entitled to special protection of the state.The very notion of equality of men and women in marriage under international human rights law assumes and responds to differences between the genders that historically have been the basis for treating one gender (women) as legally unequal (and usually inferior).In one important sense, the historic, nearly universal requirement of a man and a woman makes dual-gender, genderintegrative marriage (especially monogamy) the oldest 'equality' social institution that has been recognized in the law.
Just as men and women are inherently and categorically different in profound and complementary ways (equal but different), the union of a man and a woman is also fundamentally different from the union of two persons of the same sex.Because men and women are fundamentally different, marriage, a heterosexual, dual-gender, gender-integrating union is fundamentally different from unions of persons of the same gender.
Marriage is unique.No other companionate relationship provides the same great potential for benefitting individuals and society as the life-time covenant union of a man and a woman.That is why only committed heterosexual unions are given the legal status of marriage.It is not the marriage certificate, label, or legal status that makes the heterosexual marital relationship uniquely beneficial to individuals and society, but it is the nature of the relationships itself that is so valuable.That is why such unions are given the preferred legal status (and label) of marriage.The public purposes for which marriage has been created are best achieved by dual-gender, integrative unions.Same-sex unions do not match the contributions to society that are made by heterosexual marriages.
This does not devalue or denigrate unions of persons of the same-gender.Supportive non-marital relationships (including friendships, etc.) have long been honoured, celebrated and respected (since at least the days of Socrates, Plato, and Aristotle) without being called 'marriages'. 12While the state could do more to regulate non-marital friendship, it is fair to questions whether it would be good for society, or for such relationships, if the state were to regulate friendship. 13Legally recognising and preserving in law the uniqueness of the conjugal marriage relationship of man and woman does not prevent the law from also respecting and recognising and giving legal status and benefits to other kinds of relationships.It is not a 'zero-sum' game.If two persons love each other, wish to commit to share themselves exclusively with each other, to assume responsibility for each other, to live together, support each other, own property together, and leave property to each other, the state can create legal regimes to protect those relationships, without altering or redefining the unique institution of marriage.The existence of 'civil unions', or 'pactes civiles', or 'domestic partnerships' and similar domestic relationships in many nations is proof that states can recognise both marriage and same-sex relationships without conflating or confusing them.
Today, however, some assert that the state can and should redefine marriage to include same-sex unions.An essential basis for this claim is the legal positivist argument that since the state 'creates' legal marriage, it can also redefine marriage as it wishes.Such relativistic arguments for same-sex marriage are self-alienating. 14They are based on the assumption of relational equivalence-a simplistic notion that fails to recognise that the whole contribution of dual-gender marital relationships is greater than the mere sum of the deconstructed parts, that "something more complex is going on than can be explained" by saying "my sexual preference is as good as your sexual preference." 15guments for same-sex marriage ignore the conceptual limits of legal positivism.They are, as Anna Christensen put it, trapped in a Kelsean dream, where they erroneously believe that they can create social order out of moral chaos by merely enacting positive laws. 16That positivist approach to law and legal institutions underlies the legalization of same-sex marriage."It hides the fact that the central elements of a legal order cannot be invented by a lawmaker, but must be rooted in a normative practice." 17e notion that the state can transform air into land by calling it 'land', or fire into water by calling it 'water', or pet dogs into children by calling them 'children' is curiously flawed.So is the notion that the state, by mere positivist legal decree can transform same-sex relationships into 'marriages' by calling them marriages.Such alchemy-by-definition resembles the pretences of medieval alchemists who claimed to be able to transform base metals into gold by their magic.It confuses legal constructs with social institutions, to the damage of the latter. 18vocates of same-sex marriage make the fatal flaw of believing that if they can get the label of 'marriage' for their gay and lesbian relationships, they will automatically acquire the socially and individually beneficial characteristics associated with marriage for millennia. 19That is very strange thinking.Abraham Lincoln once lampooned the flaw of this thinking with a homespun story.He asked how many legs a dog would have if you counted a tail as a leg.To the response 'five legs', Lincoln said "No, calling a tail a leg doesn't make it a leg." 20 So the same-sex marriage question boils down to whether a tail can be transformed into a leg by merely calling it a leg; whether calling same-sex unions 'marriages' will succeed in turning them into real marriages, with the enormously important social attributes associated with this term.If it is not a mere legal-definition restriction that limits marriage to heterosexual unions, but the gender-integrating, complementary union of a man and a woman is a core, constitutive part of the very nature and reality of marriage, merely changing the label will not transform the reality.Rather, such attempted alchemy may irreparably harm society if marriage and family really (not just rhetorically) are essential, foundational institutions of society. 21

II. Male-Female Marriage and Marital Families Are Essential Social Institutions
That marriage is understood globally to be a gender-integrating (male-female), essential social institution is evident from the constitutions of many nations.As Appendix II notes approximately 150 of the 192 sovereign nations in the world today have written constitutions containing provisions that explicitly protect family as the basic unit of society. 22Many national constitutions have language expressing such belief as a basic principle of the nation and its legal system.For instance, various national constitutions declare that the family is "the fundamental pillar of the society," 23 "the natural and fundament cell of society," 24 "the fundamental nucleus of society," 25 "the foundation of society,"26 "the natural primary and fundament unit group of society,"27 "the natural and moral base of society,"28 "the cornerstone of the preservation and the advancement of the Nation," 29 "the fundamental unit of society and the main centre for the growth and edification of human beings," 30 "the basis of society and the State," 31 and "a natural association founded on marriage." 32any national constitutions also contain provisions that guarantee state protection to the family. 33ny national constitutions single out marriage for special protection.Some declare that marriage is "the foundation of the family" 34 , "the legal basis of the family," 35 and that "*t+he family is founded on the freely consented marriage of the spouses.(...)." 36 Many of these national constitutions expressly guarantee state protection to marriage. 37Moreover, as Appendix II also shows, at least forty-three national constitutions, covering more than 22 percent of the sovereign nations on earth, have explicit constitutional provisions that define or protect marriage as a gender-integrating union of man and woman.For example, the Constitution of Colombia declares that the family "is constituted (...) through the free decision of a man and woman to contract matrimony (...)." 38 Japan's Constitution declares that: "Marriage shall be based only on the mutual consent of both sexes (...)." 39 Poland's Constitution declares that: "Marriage, being a union of a man and a woman (...) shall be placed under the protection and care of the Republic of Poland." 40The Constitution of Ukraine explicitly provides: "Marriage is based on the free consent of a woman and a man." 41Thus, as a matter of strong consensus of the global societies and as a matter of explicit constitutional principle in a growing number of nations around the world, marriage is a gender-integrating union of man and woman.
These national charters recognise marriage as a foundation of the family and recognise family as the core, essential, fundamental group unit of society.
There is a strong consensus regarding the essential nature of these social institutions, and their interconnected linkage.As goes marriage, so goes the family, and as goes the family, so goes the nation.

III. Capturing Marriage by Redefining Marriage in Law
Marriage is a core social institution protected by law.Marriage laws communicate our shared understandings and clarify our expectations of persons in the communities and relationships that are prescribed by law. 42The state's legal power over and ability to regulate marriage gives it the power to redefine the legal status and legal incidents of marriage.Such power is not insignificant; it can profoundly influence the shared understandings that shape the social institution of marriage.The law can be used as a 'social bulldozer' to deconstruct and reconstruct social understanding of social institutions, including marriage.Marriage law has been a favourite playground of social engineers for centuries.Political and social movements often have attempted to 'capture' marriage, to change marriage laws for the purpose of promoting their particular social and ideological agendas.
One example of the harm that can come by impressing the institution of marriage into the cause of social and political agendas comes from the tragic experience of the United States of America with anti-miscegenation laws.Laws prohibiting inter-racial marriage were positive law creations.They originally were confined primarily to some (not all) of the southern states which allowed slavery. 43However, with the rise of social Darwinism after the American Civil War, the philosophy of racial eugenics-the notion that some races are superior and others are inferior and that the law should protect the purity of the superior races-spread throughout the nation. 44 eugenicists succeeded in 'capturing' marriage in most American states.By redefining marriage to prohibit inter-racial marriage, they were able to embed into the American laws of marriage the principles of racial hierarchy that perpetuated and spread their racist ideology throughout the nation. 45e movement to redefine marriage to include same-sex couples is just the latest example of the old tactic of a social movement capturing marriage for the purpose of reconstructing society.When marriage is redefined in law, those values become embedded deeply in the fabric of society, strengthening the ideology, giving it longer life, and making it harder to change and move on.America's long, tragic national experience with eugenic-based antimiscegenation laws, which took a full century and a major Supreme Court decision to correct and eradicate, is evidence of the scope of the problem of redefining marriage to promote social policies and ideologies that crystallise socially-constructed extraneous social values that distort and reshape the social perception of the institution marriage into law. 46

IV. 'Free Riders' and the Transformative Power of Inclusion
Strong social institutions such as marriage can accommodate some 'free riders'-those who do not accept responsibility for the core purposes and social contributions of the institution-without posing a serious threat to the institution itself.However, when the quality or quantity of those deviations is so significant, so wide, and the nature of the changes alters the very core of the institutional structure, the 'free-riders' no longer merely mildly burden the institution; instead, they threaten to weaken and transform the institution itself, and that undermines the society that rests upon it.
The transformation in the social understanding is accomplished by redefining the core constitutive qualities and meaning of the institution of marriage.The inclusion of persons with different visions of their roles within the institution transforms the shared social understanding and accepted functions of the institution, and the expectations of the participants in it.While genderintegrated unions will still do the work of marriage, they will be marginalised and diminished in social value and legal recognition.The social reconstruction of marriage to include same-sex marriage will not affect the reality of the qualities and contributions of dual-gender unions, but it will profoundly alter social perceptions, remove or reduce legal incentives to responsible marriage behaviours, and impose comparative disincentives for responsible marital conduct.
Legalising same-sex marriage "will transform our shared, public meaning of the word 'marriage.'It will disconnect marriage from any further relationships with (…) making the next generation, and connecting those children to both their mothers and fathers (…)" 47  by redefining it to include same-sex couples will alter these important functions, linkages, and contributions of dual-gender marriage and will profoundly impact all of society, not just particular couples, families or groups.

Conclusion: Legalisation of Same-Sex Marriage Is Ill-Considered and Unnecessary
U.S. President Barack Obama has identified the fallacy at the core of the movement to redefine marriage to include same-sex couples.He wrote: "If everyone is family, then no one is family." 51The over-extension of the label, the legal construct, devalues and weakens the real, essential social institution.
The legalisation of same-sex marriage is discordant with basic principles and foundational documents of most national constitutions and widely-accepted provisions and principles of international human rights law.The clear global trend is to protect marriage as a dual-gender institution, and to protect marital families.Viewed from an institutional perspective, legalising same-sex marriage is an over-reaction to problems of how to properly recognise and regulate same-sex relationships prioritising social construction over (and at the expense of) the protection of basic social institutions.It entails allowing a social movement to capture marriage by redefining it to promote its particular ideology and social reconstruction agenda.History shows that such uses of marriage law are deeply problematic and create long-term and very difficult social problems.
Three more reasonable legal construction alternatives exist that render the redefinition of marriage to include same-sex couples unnecessary to protect the legitimate interests and rights of sexual minorities.They include the creation of separate domestic relationship legal structures with all of the same rights as marriage, the creation of specifically-tailored domestic relationship status with more selective, customised rights and benefits, and the protection of the right of private ordering by the parties to same-sex relationships.These should be preferred over the legalisation of same-sex marriage.
Ibid.See also Blumenson, supra note 6, p. 550 ("*T+he relativist idea of local truth makes little theoretical or practical sense.The practical problem is that the relativist alternative lacks the resources to provide anything more than the baseless choice of procedural dogmas.").
14 J. Waldron (Review Essay), 'On the Objectivity of Morals: Thoughts on Gilbert's Democratic Individuality', California Law Review 1992, pp.1361 & 1376 (Moral relativism is self-alienating; a moral relativist is a person who could not take his own side in an argument).15Seegenerallyidempara.1381.The relativistic thesis offers no solution for a world of multiple cultures. 17em, p. 236.Shared normative values are the basic element in what we call society.18Ofcourse, legal institutions, including marriage, are constantly changing in many incidental, minor ways, reflecting changes in social mores, practices, technologies, ideologies, fads, fashions, and fancies.But fundamental changes in such basic institutions as marriage involving such core elements as dual-gender-integration are historically rare and revolutionary -for better or worse.
By redefining marriage to include same-sex couples, the transformative power of inclusion will reshape what marriage is, what it means, and what it requires of family members.48Itwillimpactuponhowothersmustactandinteract in the levelling of the institution of marriage.The legalisation of same-sex marriage will transform the meaning of marriage, spouse, husband, wife, parent and child in the law.That redefinition will profoundly influence the meaning of public education, school curriculum, civil rights, family, inheritance, intimacy, relations, public behaviour, privacy, disclosures, security, accommodation, filings, custody, guardianship, visitation, reasonable conduct, medical treatment, preferences, privileges, rights, duties, etc.Conjugal marriage is the principal social institution designed to channel human sexual expression into responsible, socially constructive outlets.49Itprovides the optimal setting in which children can be conceived, born, nurtured, and raised.50Marriagebetweenmanandwomanlinks, integrates, and reinforces these important social purposes of marriage.The transformation of marriage 47 M. Gallagher, '(How) Will Gay Marriage Weaken Marriage As A Social Institution: A Reply to Andrew Koppelman', University of Saint Thomas Law Journal 2004-33, p. 69.48See Lynn D. Wardle, 'The Morality of Marriage and the Transformative Power of Inclusion', in: The Legislature (…) may, as the creator of the institution of civil marriage, wish to see the proof before making a fundamental alteration to that institution.(…)*I+t is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that that redefinition will not have unintended and undesirable social consequences."Moremacroscopically,construction of a family through marriage also formalizes the bonds between people in an ordered and institutional manner, thereby facilitating a foundation of interconnectedness and interdependency on which more intricate stabilizing social structures might be built.(…)Itis difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children.At the very least, the marriage statute [at issue in Goodridge] continues to serve this important State purpose."Idem,paras.980,982;see also idem.paras.987,990,996-97, 1003 (Cordy, J., dissenting).Justice Cordy acknowledges.Idem, para.996-997(citationomitted).49Poev. Ullman, 367 U.S. 497, 553 (1961) (Harlan, J., dissenting).Justice Harlan states: "Adultery, homosexuality and the like are sexual intimacies which the State forbids (…), but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every Lynn D. Wardle (ed), What's the Harm?Does Legalizing Same-Sex Marriage Really Harm Individuals, Families or Society?, University Press of America 2008, p. 207, 226.The author states: "Redefining marriage to include gay and lesbian couples will have a profound impact upon sexual morality in society.Sexual standards will change as homosexual relations will be instantly normalized and equated with marital relations.(…)Legalizingsame-sex marriage will instantly transform the meaning of marriage, spouse, husband, wife, parent,[and]child in the law."Idem,; see also Goodridge v. Department of Public Health, 798 N.E.2d 941, 980-982 (Mass.2003) (Sosman, J., dissenting).Justice Sosman argues: age it has fostered and protected".Poe v. Ullman, 367 U.S. 497, 553 (1961) (Harlan, J., dissenting).Justice Harlan states Idem, paras.996-997 (citation omitted).Idem, See generally L.D. Wardle, supra, note 48, p. 221(describing how the "behavior norms and moral standards" of conjugal marriage and those of homosexual relationships are diametrically opposed). 50Idem