Friday, July 10, 2015

The Case for a Marriage-Free State

The last couple of months have seen major victories for marriage equality. In May, Ireland voted to legalise same-sex marriage in a national referendum — the first country in the world to do so by popular vote. In June, the US Supreme court issued a landmark 5-4 decision legalising same-sex marriage throughout the United States. These were important steps toward building a fairer and more just society. If marriage is to continue to exist as a legally-recognised relationship status, then it is important that it do so in an egalitarian and inclusive manner. I don’t think anyone should doubt this.

But there is something worth doubting in the midst of all these victories. Should marriage continue to exist as a legally-recognised relationship status? Think about what this means. We enter into relationships with other human beings all the time. These relationships tend to support a number of different functions or roles. Some are purely commercial or business oriented; some are concerned with friendship and sociality; some are sexually intimate; some are directed towards property-sharing; some are about rearing children; some are about mutual caregiving and support. Legal recognition of these relationship functions usually results in the parties to them gaining a number of legal rights and duties. The distinctive feature of marriage-recognition (in modern liberal societies) is that it focuses on a particular kind of relationship — viz. a monogamous relationship — which fulfils a number of these functions — typically caregiving, sexual intimacy and child-rearing — and bundles together a bunch of rights and duties that then attach to the members of that relationship. The question is whether this special status and bundling of rights should continue.

This is a question that has long exercised certain feminist theorists. They view marriage as a problematic institution with a number of troubling properties. Some are inclined to support alternative kinds of relationship-recognition. Clare Chambers’s article ‘The Marriage Free State’ offers an interesting perspective on this debate. She argues that the state should stop legally recognising marriage and should not replace marriage-recognition with some alternative type of relationship-recognition (e.g. civil unions). Instead, she argues that the state should regulate relationship functions on a piecemeal basis.

In the remainder of this post, I want to take a look at Chambers’s argument for the marriage-free state. Two caveats before I do so. First, as I understand it, the defence of the marriage-free state contained in the paper I read is an incomplete and imperfect overview of the case that she will present in a forthcoming book. Second, this is not a topic with which I am overly familiar. Reading and writing about Chambers’s paper is way for me to feel my way into this debate. I’ll offer some of my own thoughts along the way, but these are very much preliminary and, no doubt, naive.

1. The Feminist Critique of Marriage
If you’re going to make the case for a marriage-free state, then it probably makes sense to first ask whether marriage-recognition is a bad thing. After all, societies have been affording married couples a special legal status for centuries (millenia even). If we are going to move away from this societal status quo, we’ll need some convincing (not that loyalty to the status quo is always a good thing; just that it usually takes something dramatic to push people away from it). Fortunately, many leading feminist theorists have already obliged on this front by providing a number of reasons to doubt the value of marriage-recognition.

The problem, as Chambers notes, is that there is a faintly paradoxical air to two of the standard critiques:

Critique One: Marriage is a deeply patriarchal and sexist institution that oppresses and harms women.

Critique Two: Marriage is an inegalitarian institution because it is (traditionally anyway) heterosexist and so excludes homosexual couples from the benefits enjoyed by heterosexual couples.

The second critique has obviously found favour, and marriage-equality is now on the ascendancy in many Western countries. But the second critique appears to be in tension with the first. The problem is this: the first critique seems to suggest that marriage is bad for some of the people who enter into it (specifically women); the second seems to suggest that marriage is good for the people who enter into it and should therefore be expanded to others. How can marriage be both of these things? We need to think in a little bit more detail about the alleged harms of marriage.

These harms can be divided into two main categories:

Practical Harms of Marriage: These are harms to the material or legal condition of the people who enter into the marriage. They result directly from being in this particular kind of relationship.

Symbolic Harms of Marriage: These are harms that result from the social meanings that attach to the institution of marriage. These harms need not result from being in this particular kind of relationship. Indeed, they are often felt by people who are not party to a marital relationship.

Historically, there were many practical harms to women who entered into marriage. The most obvious of these were legal. Married women lost legal status and effectively became the chattel of their husbands. This then exposed them to a number of potential material harms such as domestic abuse, marital rape, loss of opportunity, and increased burdens of carework and child-rearing. Obviously, the status of non-married women in such societies wasn’t exactly stellar either (though it did improve over time) so it may be difficult to say whether women were worse off when married, but this doesn’t detract from the fact that, historically, there were a number of practical harms clearly associated with the institution.

What’s the position nowadays? In most Western societies, the legal disbenefits of marriage have disappeared. Women are no longer their husband’s chattel. They retain their independent legal status and associated legal rights. They also gain legal rights associated with inheritance, tax, and property-sharing (though this varies from jurisdiction-to-jurisdiction). Still, these changes have been costly: many women had to suffer in the process. Furthermore, many material harms of marriage persist, including in particular the disproportionate share of home/care based work that is taken on by women. On the whole, though, it is probably very difficult to determine whether being married is, on net, practically bad for women. The effects are likely to vary greatly, depending on the woman, the partner, and the relevant social and cultural norms. (Also, though it is not mentioned in Chambers’s article, there are some studies suggesting various health benefits of marriage. They would presumably need to be factored into any overall assessment - though cause and effect is difficult to disentangle)

The symbolic harms of marriage are rather different. Symbolically, marriage tends to reinforce a certain view of women and their role or status in society. This is clear in the symbolism of the traditional ‘white wedding’. Chambers describes it aptly:

The white wedding is replete with sexist imagery: the father ‘giving away’ the bride; the white dress symbolising the bride’s virginity (and emphasising the importance of her appearance); the vows to obey the husband; the minister telling the husband ‘you may now kiss the bride’ (rather than the bride herself giving permission, or indeed initiating or at least equally participating in the act of kissing); the reception at which, traditionally, all the speeches are given by men; the wife surrendering her own name and taking her husband’s. 
(Chambers 2012)

In addition to this, the social meaning that attaches to the institution of marriage has a number of indirect effects on women. Chambers does quite a good job outlining these, and I am loathe to cut out all the details and examples she gives, but I don’t want to repeat everything she says so I’ll just cut to the bottom line: the social meaning tends to reinforce the view that being married is what women should ultimately aspire to; that not being married is to be in an inferior state of existence; and this has the effect of narrowing women’s aspirations and opportunities.

Now, it might be argued in reply that these symbolic effects have improved over time. Women don’t have to take on their husband’s names, they don’t have to have traditional ‘white weddings’ (though the pressures are still there) and so on. But whether marriage can symbolically break with the negative features of its past is unclear. One of the reasons why marriage is socially valued and protected is because it is traditional. This means that the symbolic meaning is directly linked with the history of the institution. Consequently, it is much more likely that marriage is symbolically tainted by its past meanings; and hence much more difficult to drain it of those meanings.

This brings us back then to the second critique of marriage: its heterosexist and inegalitarian nature. Why is it, if marriage is so bad, that many feminist and homosexual theorists and activists support marriage equality? The apparent paradox is easily resolved. What these theorists recognise is that (a) marriage-recognition does bring with it some practical (primarily legal) benefits and (ii) the symbolic value of marriage would, if extended to homosexual couples, help foster a greater sense of social belonging and acceptance. Nevertheless, accpeting these two things is consistent with believing in the practically and symbolically negative aspects of marriage too. In other words, the position can be that it would be better if marriage-recognition is extended to include homosexual couples, but it would be even better again if the state stopped legally recognising marriage.

2. The Case for Piecemeal Relationship-Recognition
But if the state is going to stop recognising marriage, what is it going to do instead? Presumably, relationships will still happen and will still need to be regulated. This is where Chambers’s paper gets really interesting. To think about what happens in a marriage-free state, we need to recall what it means, legally speaking, to recognise marriage as a special relationship status. It means that you single out a particular kind of relationship (monogamous unions) for special recognition, you presume that this relationship brings together a number of important relationship functions, and you bundle together a bunch of rights and duties and apply them to the members of these relationships. When it comes to non-marital forms of relationship-recognition, this implies two choices either: (i) we continue to bundle or (ii) we don’t.

The difference is between holistic relationship recognition and piecemeal relationship recognition. In the former case, we establish a new unique relationship status that replaces marriage (e.g. a civil union) and assign a bundle of rights and duties to that relationship. In the latter case, we don’t establish a new unique relationship status. Instead, we look to the different relationship functions, and regulate those functions individually (i.e. on a piecemeal basis).

The case for alternative holistic regulation has been set out by others. Chambers points in particular to the work of Elizabeth Brake and Tamara Metz who both call for the state to provide special recognition for caregiving relationships in lieu of marriage. Metz argues for recognising intimate caregiving unions (ICGUs); Brake argues for minimal marriage, which is a relationship based on caregiving. In Brake’s case, it is argued that there should be no upper limit on the number of parties to such a relationship, nor any restriction on entry on the basis of sex/gender.

Chambers argues that there are two problems with these holistic approaches to relationship-recognition:

The Bundling Problem: The holistic approach assumes that most of the important functions of life can be satisfied in one core relationship. In other words, that we can get what we need in terms of property-sharing, intimacy, caregiving and child-rearing (among other things) in one special relationship. It also assumes that the state is well-placed to determine and regulate the nature and extent of that relationship. Bundling also has an exclusionary effect insofar as the rights and duties are only obtainable by those who are in such relationships.

The Opt-In Problem: Proposals for holistic regulation invariably assume that the special relationship status is one that people will opt into. On the one hand, this makes sense: people should be free to determine whether they want the bundle of rights and duties associated with that relationship status. On the other hand, the opt-in approach often works against weaker and more vulnerable relationship partners. People can be involved in factually equivalent relationships and yet not have the associated legal rights because they have not opted-in or because the status quo favours one of the relationship partners not opting in. This used to be a particular problem for non-married co-habiting couples, and still is in some jurisdictions, though more favourable rules are now in place.

In light of these problems, Chambers argues for a piecemeal approach to relationship recognition. This approach rejects bundling. It focuses instead on the different relationship-functions and regulates those individually. Thus, for example, there would be one set of regulations for the child-rearing function, another for the property-sharing function, another for the sexual-intimacy function and so on. There would be no particular ex ante restrictions on who could share these functions. The regulations for each function would have to be developed and argued for independently. More controversially, Chambers argues that the regulation of these functions should not be conducted on an opt-in basis. Instead, the rules should apply simply by virtue of the fact that people share those functions with others.

I have some resistance to this prima facie compulsory system of regulation, but there are three points worth bearing in mind. First, it is possible in many cases that people will consent to sharing those relationship functions with others and will be aware, in advance, of the rights and duties associated with doing so. Second, we already impose some relationship regulations on people without their explicit consent. For instance, many of the rights and duties associated with parenting and child-rearing now apply irrespective of the parents’ official marital status (though there are still many that do). This is usually justified on the grounds that the child’s interests take precedence (i.e. that there is a greater good at stake). And third, Chambers suggests that in some cases the rules and regulations could apply on an opt-out basis. This would preserve liberty by an alternative means.

3. Conclusion
Anyway, that’s it for this post. The briefly recap, there is a standard feminist critique of the institution of marriage. This critique holds that marriage is heterosexist and oppressive to women for both practical and symbolic reasons. Finding some alternative form of relationship-recognition would, therefore, be welcome. When looking for an alternative, we have two options with which to contend. We can adopt a holistic approach and look for some alternative relationship status into which we bundle rights and duties, e.g. civil unions or intimate caregiving unions. The problem with this holistic approach is that it assumes most of the important life functions can be satisfied within one relationship status and that people should be free to opt-into a bundle of rights and duties. This is often factually inaccurate, exclusionary and problematic for the more vulnerable members of a relationship. Consequently, Chambers thinks that we should regulate relationships on a piecemeal basis, focusing on the different relationship functions instead of one particular relationship status. I think this proposal is interesting and I look forward to seeing her flesh it out in more detail in her forthcoming book.

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