DANE — Volume 62, Issue 2

Lord Stowell's 1811 decision in Dalrymple v. Dalrymple established that marriage requires two individuals of different sexes, grounding this requirement in natural law connected to reproductive capacity. Stowell's famous passage articulated a traditional vision of marriage as institution rooted in nature's reproductive instinct and civil society's foundation. Contemporary debates over same-sex marriage invoke Stowell's framework while arguing for different conclusions about marriage's essential nature. Dane examines how Stowell distinguished among marriage's secular, religious, and natural law dimensions, offering a more nuanced account than modern simplistic characterizations of marriage doctrine. Rather than viewing marriage exclusively as secular institution or purely natural law institution, Stowell recognized marriage's multi-layered character. The article traces how legal history reveals marriage doctrine's complexity and indeterminacy regarding sex-differentiation requirements. By examining Stowell's sophisticated jurisprudential approach, Dane argues contemporary courts can better understand marriage's various dimensions without reducing marriage to single normative framework. The article illuminates how historical legal thought addresses enduring tensions about marriage's nature and requirements.

Topics: Family Law · Legal History

Keywords: same-sex marriage · natural law · Dalrymple v. Dalrymple · Lord Stowell · marriage · civil law · constitutional rights