Marriage and the Elephant: The Liberal Democratic State’s Regulation of Intimate Relationships between Adults


This essay considers the current debate in legal theory over the stance that the state should adopt toward intimate relationships between adults. Should the state, as some scholars argue, privilege marriage because of the benefits it provides to society? Or should it, as others argue, distance itself from relationships between adults on the ground that adults should be left to order their own affairs? The essay argues that scholars involved in this debate have reached such diametrically different conclusions from one another because each side has focused on a particular, narrow range of goods at issue in these relationships. Relationships between adults, however, implicate a number of important goods for a liberal democracy that stand in tension with one another – some militating in favor of, others militating against, state recognition and support. The essay contends that a workable approach to the issue of intimate adult affiliations can only be fashioned through recognizing the diversity of goods at stake and seeking to ameliorate the tension among them. It then offers an approach that strikes an acceptable balance among the various goods and principles. Under this approach, the state constructs the institutional preconditions that support adults in a broad variety of caretaking relationships. At the same time, however, alert to its own institutional limitations and to the importance of preserving citizens’ and families’ own autonomy, the privileges it offers such relationships are limited and targeted specifically to the goods that the state has an interest in furthering.


Jurisprudence | Law and Gender | Public Law and Legal Theory | Sexuality and the Law

Date of this Version

August 2006