This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a more robust politics based on the experiential social value of marriage and gay relationships. The freedom to marry is both a liberal right and a piece of the good life. Drawing on Durkheim, this Article discusses a sociological theory of marriage and argues that the constitutional case for the freedom to marry is not just about the rights of equal protection and due process, but also about the sociology of marriage. In other words, a successful constitutional argument depends on the recognition that marriage is a social good with both general and everyday demonstrable benefits for the married couple and society as a whole.
Hastings Law Journal, Vol. 64, Issue 3 (2013), pp. 739-780