The Constitutionality of Legal Preferences for Heterosexual Marriage
![handle is hein.journals/regulr16 and id is 127 raw text is: THE CONSTITUTIONALITY OF LEGAL PREFERENCES
FOR HETEROSEXUAL MARRIAGE
Richard G. Wilkins*
I. INTRODUCTION
Throughout the ages, marriage between man and woman has been
essential to individual development, social progress, and communal
prosperity.' Because of the important roles it has played in the evolution
of modern society, marriage has become a highly preferred legal
relationship.2 Marriage's unique status is reflected in the numerous
statutory and other legal preferences that have been created for the
marital relationship, ranging from special tax and employment benefits
to laws dealing with property ownership and intestacy.3
Today, however, the highly preferred status of marriage is under
attack on several fronts. In the face of mounting divorce and abuse rates
* Professor of Law and Managing Director, The World Family Policy Center,
Brigham Young University. I would like to express my thanks to R. Chad Hales and Adam
Becker for their able assistance in preparing this paper. An earlier version of this essay
appeared in Richard G. Wilkins, Essay Two: The Constitutionality of Legal Preferences for
Heterosexual Marriage, in MARRIAGE AND SAME-SEX UNIONS: A DEBATE 227 (Lynn D.
Wardle et al. eds., 2003).
1 See, e.g., Brigitte Berger, The Social Roots of Prosperity and Liberty, 35 Soc'Y,
Mar.-Apr. 1998, at 44.
2 Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex
Marriage, 1996 BYU L. REV. 1, 29.
3 See Akiko Kawamura, Neglected Stories: The Constitution and Family Values, 1
J. L. & FAM. STUD. 89, 94 (1999) (book review). The author states:
Justice O'Connor, writing for the majority [in Turner v. Safley], articulated
the reasons why marriage is especially important to constitutional
conceptions of liberty and citizenship. First, marriage is a precondition for
government benefits like social security. Second, marital status guarantees
certain property rights under intestate succession laws. Third, in some
states, marriage is a precondition for the legitimacy of children. Lastly,
marriage is an expression of commitment that carries spiritual
significance because it is often an exercise of religious faith as well as an
expression of personal dedication.
Id. (quoting Turner v. Safley, 482 U.S. 78, 96 (1987) (citation omitted)); see also Todd
Foreman, Nondiscrimination Ordinance 101: San Francisco's Nondiscrimination in City
Contracts and Benefits Ordinance: A New Approach to Winning Domestic Partnership
Benefits, 2 U. PA. J. LAB. & EMP. L. 319, 319 n.3 (1999) (The many benefits of marriage
include immigration rights, property rights, tax benefits, and employment benefits such as
Ipartner insurance coverage, pension survivorship plans, and sick and bereavement
leave.') (quoting Philip S. Home, Challenging Public- and Private-Sector Benefit Schemes
Which Discriminate Against Unmarried Opposite-Sex and Same-Sex Partners, 4 LAW &
SEXUALITY 35, 48 (1994) (citation omitted)).](ViewImageLocal?handle=hein.journals/regulr16&div=9&collection=&method=preview&ext=.png&size=3)
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The Constitutionality of Legal Preferences for Heterosexual Marriage
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