Law Review Article

David L. Chambers, professor at University of Michigan Law School, in Hofstra University School of Law's Law Review:

During the hearings and debates that led to the Defense of Marriage Act, many members of Congress and many witnesses drew comparisons between polygamy and same-sex marriage. Most of the comparisons were shallow and sarcastic, but, taken as a group, they offer interesting insights into conceptions of marriage and family in this country.

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In a society with as heterogeneous a population as ours, the wisest role for the state in its relationship to families is one of supportive tolerance: The state should identify the patterns of family arrangements that actually exist and that endure throughout time. It should then perform a facilitative role to help these families prosper, unless strong reasons exist for believing that the arrangements cause significant harms. Under this view, the state would regard its decision to permit a certain group to marry (or its decision to provide a benefit to some family configuration), not as an endorsement of the group's worthiness, but as a simple recognition of their ongoing, nondestructive presence in the community and as a recognition of the group's need for access to the benefits and responsibilities that attach to various legal constructs, including marriage.

Thus, if there were a move to legalize plural marriages, I would encourage the state to permit them unless they genuinely posed significant harms.

Hofstra University School of Law Law Review - David L. Chambers

This is precisely the logic employed by many in Connecticut -- without his conclusion on plural marriages. The civil unions' bill was carefully crafted to avoid the stigma attached to Chambers' conclusion, but that's just an expedient to make civil unions parallel existing marriage laws. There's no good reason to start where he does and not end up in the same place.

Much of the rhetoric in the debate was "an endorsement of the group's worthiness." There's no other way to interpret such statements as Sen. McDonald's repeated assertion that same-sex relationships "Deserve! Deserve! Deserve!" the respect and honor of the citizens of this state. This is a claim of merit.

But the legislative middle ground in this debate adopted Chambers' lowest-common-denominator approach to the state's interest in marriage: it is a recognition of relationships as they exist in fact; as long as no one is hurt why not recognize them.

But how does this LCD approach work in combination with the assertion of "basic human rights"? Does every relationship that exists carry an entitlement, a right, to official, supportive recognition by the state and access to benefits, as long as it's already present and is nondestructive?

Chambers' article is very interesting and eye-opening.