Conclusion

Abstract

In the UK same-sex marriage case, Wilkinson v Kitzinger [2006] EWHC 2022, Sir Mark Potter’s judgment that the exclusion of same-sex couples from marriage could be justified by reference to the procreation function of marriage was fl awed. Not only was his view that procreation is central to marriage explicitly rejected by the House of Lords in Baxter v Baxter [1948] AC 274 six decades earlier, I have also argued that it is evident from contemporary judgments and remarks made in obiter that the prevailing judicial conception of marriage in the UK is primarily concerned with interdependency, sexual and emotional intimacy, and companionship. However, rather than ask whether same-sex couples should be able to legally marry, my aim has been to question whether marriage has or could evolve to overcome the problems that feminists have identified with the institution. Those seeking same-sex marriage have generally not interrogated the institution and have largely overlooked the feminist critiques. As such, my goals were to explore marriage and the ways that same-sex relationship recognition fits into this framework and to revisit the feminist critiques to discover whether they could be extended to same-sex marriage.