San Diego Law Review

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The debate concerning what marriage is and what marriage ought to be is confused by conflicting ideas of natural law. John Stuart Mill sees law as a means by which to improve a universe with no natural moral order, whereas James Fitzjames Stephen views law as a means to correct that which is morally against nature. This article focuses on understanding a morally neutral working of nature, which requires looking past something's moral desirability, and devising what form social arrangements, like marriage, should take. Once the ideas of natural law, together with moral goodness, are abandoned, and ideas discussing the scientific differences between the sexes are explored, traditional marriage becomes less justifiable, thus leaving few reasons to exclude same-sex marriage and other alternative arrangements. The author concludes that considering new social arrangements is a large step involving a complex set of incentives and disincentives, such as childrearing, sexual justice, and demographics, which focus on achieving better cumulative effects for individuals.

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