Robin Bradley Kar (University of Illinois College of Law) has posted Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage (The Contested Place of Religion in Family Life (Cambridge University Press 2017)) on SSRN. Here is the abstract:
The common wisdom around Obergefell (which found a constitutional right to same-sex marriage) is that it reflects just the latest in a recent series of secular triumphs over religious values in family life. If left unchallenged, that common wisdom would leave questions about same-sex marriage at the center of larger culture wars between religious and secular values. Conflicts like these are incredibly persistent and divisive. They have the power to harm people on all sides of the debates.
But the common wisdom around Obergefell is wrong, or at least seriously incomplete. Obergerfell resulted not only from secular progressive causes but also from a recent and major, but less well studied, expansion in the religious and spiritual functions of marriage. In the period beginning in the 17th and 18th centuries in the West, and leading to the middle of the 20th century, history suggests a progressive development toward a social institution of marriage that this article calls “transformational marriage”. Transformational marriage serves as a vehicle for the transformation of early romantic desire into the psychological capacities needed to break free from the bondage of self and attain greater personal community with God or the divine—however one conceives of these concepts. Transformational marriage can therefore help people with certain personal transformations needed to live well, in ways that can be understood in either religious or secular terms.
The rise of transformational marriage gave marriage expanded religious and spiritual functions in the West, but it also depended on greater public acceptance of a critical link between romantic love, personal choice, intimate satisfaction, and marriage. That linkage is of fairly recent historical origin, and there is nothing in principle to limit the expanded religious and spiritual functions of transformational marriage to people who can fall into romantic love with people of the opposite sex. These facts should significantly complicate the way that committed religious observers respond to the recent legalizations of same-sex marriage. It should also reorient the way some scriptural passages that seem to present obstacles to same-sex marriage should be read. If given sufficient social, legal, and pastoral support, same-sex marriage of the transformational variety has underappreciated spiritual and religious potential, whereas opposition to it has underappreciated spiritual and religious costs.
A better understanding of the rise of transformational marriage suggests that there is therefore room for common cause among people of good faith on all sides of the political and religious spectrum to support greater access to transformational marriage. Debates over same-sex marriage need not—and indeed should not—become a permanent fixture in the larger culture wars between religious and secular values.