A philosophical analysis of the fundamental law of marriage in American jurisprudence

This dissertation is about the fundamental right to marry in American jurisprudence. The study is divided into seven chapters.; Chapter one is an introductory chapter. It introduces some basic terminology, sets out two primary assumptions that govern the dissertation, and provides an overview of the following chapters. Chapter two examines the unique historical development of the fundamental right to marry in the United States. Chapter three discusses a contemporary dilemma that has arisen as a result of this historical development. Within this developmental history, a conflict arose between two specific lines of cases. The first line defines the structure of marriage based upon tradition, and suggests that government should exercise broad control over marriage to protect this tradition. The second defines marriage based upon notions of privacy, and suggests that each individual citizen should have the right to define their own understanding of marriage, thereby promoting diversity within the construct of marriage. To protect diversity, government should have only limited control over marriage. (This conflict also under-girds the same-sex marriage debate.) Chapter four is a transition chapter discussing how the philosophy of Bernard Lonergan can help resolve the dilemma set forth in chapter three. Based on Lonergan's philosophy, chapter five presents a resolution that suggests that human beings and society in general need both tradition and diversity, as those terms are previously defined in chapter three, to develop and grow. Both tradition and diversity are compatible, and both should be jointly promoted in marriage jurisprudence for the good of individuals and society. Chapter six discusses the issue of generativity in marriage, and shows that the laws governing procreation and child raising also combine tradition and diversity. Thus, the proffered solution presented in chapter five is not unique to American law. Lastly, chapter seven discusses the role of marriage in the common good, and shows that the proffered solution indeed benefits both individuals and society.; The proffered resolution to the contemporary dilemma set forth in chapter three shows that the traditional parameters of marriage established by the Supreme Court can be maintained while also allowing, and even promoting, diversity within those parameters. This solution promotes both the good of individuals and the good of society in general. While not providing a concrete resolution to the debate concerning the legality or morality of same-sex marriage, this resolution provides a theoretical basis which may help develop practical solutions to some of the issues underlying the debate. (Abstract shortened by UMI.)...