Document Type



38 Family Law Q. 427 (2004)


This article traces much of the history of marriage as the legal civil institution has changed over the centuries, resulting in the growing recognition of same-sex unions in various forms including marriage. The author posits that while marriage had it origins in religious concepts it has over the last few centuries evolved into a civil institution. In the United States this movement was reflected in early New England concepts of marriage as a creature of the state rather than of the Church. The great 19th Century debate over polygamy resulted in the court's recognition that civil law trumps even sincerely held religious concepts of marriage. Legal recognition of common law marriage and the debate over miscegenation were addressed in terms of civil society rather than religious principles, as did the legal evolution of various forms of nontraditional families. The author contends that the current debate over same-sex marriage, civil unions, domestic partnerships, adoption by same-sex families, asexual reproduction of children by assisted reproductive technology and the federal Defense of Marriage Act are all part of an on-going historical evolution of new forms of family life which has been in progress for decades both in the United States and other Western countries.

Date of Authorship for this Version

January 2004


Saem-sex unions, Family Law, Civil Unions, Domestic Partnership, Assisted Reproductive Technology, Adoption, Defense of Marriage Act

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Legal History Commons