Marriage and Family as the New Property: Obergefell, Marriage and the Hand of the State


Prior to the Supreme Court’s 5-4 decision in Obergefell v. Hodges creating a constitutional right to same-sex marriage, it was nearly universally acknowledged that the state did not have constitutive authority over human marriage, which was “up from nature” rather than “down from the state.” In other words, the nature of marriage was determined by pre-given qualities of human, opposite-sexed pairs and the organic qualities and consequences of their union. Post-Obergefell, however, even marriage has become a form of “new property”: a state-determined status, entitling recipients to various rights and benefits. Relying upon classic texts by Professors Robert Reich and Mary Ann Glendon regarding the rise of government and the decline of families as guarantors of security for American citizens, this article investigates the implications of marriage as “the new property” for the quality and stability of marriage and the future of children.