Religion, Polygamy, and Non-Traditional Families: Disparate Views on the Evolution of Marriage in History and in the Debate over Same-Sex Unions

For many decades the definition of marriage lay at the backwater of family law analysis.  This began to change over a decade ago when the Supreme Court of Hawaii ruled favorably on an attempt by same-sex couples to obtain marriage licenses, prompting the United States Congress to respond by enacting the “Defense of Marriage Act.” Since then, state legislatures in a few states have conferred some of the benefits of marriage on same-sex couples entering into civil unions or domestic partnerships.  For example, the New Jersey Supreme Court ruled that same-sex couples must be accorded equal treatment under the law with opposite-sex couples who choose to marry, but left it to the legislature to decide if this meant marriage or some other marriage-like status.  Meanwhile, Canada, a common law country, redefined marriage to include same-sex couples, and several other countries did the same. In the United States, as discussed below, the Massachusetts Supreme Judicial Court (SJC) has rewritten the common-law definition of civil marriage by a judicial decision. . . .