Boston University School of Law

The Practice of Marriage

Katharine B. Silbaugh

Boston University School of Law Working Paper 07-01


Over the past 40 years, robust law has developed addressing the treatment of non-marital cohabitants. Consequently, thegovernment’s gatekeeping role operates somewhat differently than before. States are now more clearly policing the social benefits and the symbolism accompanying marriage, having agreed to provide many of its legal benefits to non-marital couples. This article investigates the state's current role in articulating and managing, as well as responding to, the social meaning of marriage in the context of three recent high profile cases: the prosecution of polygamist Tom Green, the Goodridge same sex marriage case in Massachusetts, and the challenge to Michael Schiavo's ability to make health-care decisions for his wife. In all three cases we see an effort by courts to respond to dilemmas posed by the dynamic relationship between social and legal marriage.In these high profile cases, courtsattempt tomaintain controlnot only over the legal meaning of marriage, but its social meaning as well. This centralized social version of marriage is unfortunate, as it puts the state at the center of disputes over social meaning that it is ill-equipped institutionally to handle.

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Suggested Citation:

Katharine B. Silbaugh, Wisconsin Women's Law Journal, Volume XX, Number 2, Fall 2005, Page 189.


Katharine B. Silbaugh Contact Information

Boston University School of Law

765 Commonwealth Avenue

Boston, MA 02215