Whelan — Volume 63, Issue 2

Lord Stowell's 1811 decision in Dalrymple v. Dalrymple recognized Scottish common-law marriages while establishing that marriage law fundamentally depends on two individuals of different sexes. Stowell's famous passage emphasized marriage's basis in natural law, grounded in reproductive capacity and family formation. Contemporary same-sex marriage proponents invoke Stowell's textured vision distinguishing secular, religious, and natural law dimensions of marriage while arguing against necessary heterosexual limitation. Dane examines how Stowell's framework resisted portraying marriage as institution grounded exclusively in substantive natural law narrative like modern proponents have done. The article demonstrates that Stowell himself recognized marriage's complexity across secular, religious, and natural dimensions, making his authority useful for contemporary debates. Dane argues that claims marriage is wholly secular institution or rests exclusively on natural law each encounter difficulties. By understanding Stowell's sophisticated account, modern courts can recognize that marriage comprises multiple dimensions not easily separated. The article contributes to same-sex marriage debates by showing historical jurisprudence recognized marriage's indeterminacy.

Topics: Family Law · Legal History

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