336 Marriage Interestingly, George, along with Finnis, also claims (again in a Kantian way) that in non-marital sex, x not only uses y ’s body for mere pleasure but also x ’s own body. X wants only to produce in himself pleasurable sensations, and uses his body to this effect. But this is contrary to how many couples experience their sexual experiences. Many have sex to express affection, love, tenderness, trust, and so on, and they experience pleasure as they do so. George insists that the good of marriage is the only good that can make sex non-instrumental, and Finnis insists that such pleasures are not good because they are not part of a good activity, such as realizing the good of marriage. But this fl ies in the face of the experiences of such couples, and it begs the question, because we must fi rst establish that such sexual activity is not an intrinsic good before declaring its pleasures unacceptable. That is, if love and pleasure are intrinsic goods, couples could have sex intending to promote them. Thus, George and Finnis’s claims are unconvincing. So far, I have argued that George is mistaken about a whole class of nonmarital sexual acts, in which couples have sex because they love each other or because they want to please each other. There remains the class of casual sex, and many people, not just the New Natural Lawyers, consider it wrong because it involves objectifi cation—the use of another’s and one’s own body for sexual purposes. But George’s arguments for this view are unclear regarding what treating one’s body as “if it were outside oneself, a sub-personal project” means. To George (and Finnis), “since we are our bodies (and do not merely inhabit them), it is treating a person (ourselves) as a sub-personal project” ( Lee & George 1997 , 155). So it violates one’s self-integration. But it is diffi cult to understand how this disintegration can happen. Unlike my house, which I inhabit and which is not me, I cannot use my body separately from my conscious self. Indeed, if x masturbates, x experiences the pleasures of orgasm in x ’s body, not merely in x ’s conscious self (whatever this means). So the disintegration that George speaks of is non-physical and moral. George often makes the analogy with using heroin, whereby one’s body is merely treated as a vehicle for bringing about a drug-induced mental state. But the analogy is problematic: the drug user not only uses his body to produce certain experiences, he abuses it, thus getting himself into all sorts of problems, moral and non-moral. Non-marital sexual activity, however, does not, as such, lead to the practitioners’ moral demise, even if done frequently. People who masturbate, who have casual sex, and so on are not dying in droves or begging for change on street corners. Their careers, friendships, hobbies, family relationships, and other goods are not usually jeopardized because of their sexual activities. There are cases of sex addiction, and sometimes sexual activity has pernicious effects, but they are usually incidental to the case and do not stem from the fact that, as George wants to claim, the sex is non-marital. Thus, George’s idea of disintegration is unclear. 4 (4) Infertile or sterile heterosexual couples give rise to philosophical hurdles for the New Natural Lawyers. Such couples can have sex and be biologically “united” in that the man can have penile-vaginal intercourse with
What Is Marriage? 337 the woman, but it is unclear why this morally differentiates them from a loving homosexual couple. Germain Grisez, another New Natural Lawyer, claims that if a “couple know or come to learn that they will never be able to have children, their marital communion is no less real and no less fulfi lling as a communion of complementary persons, even though it always will lack the fulfi llment of parenthood” ( 1993 , 572). But, again, it is unclear why a homosexual couple cannot have the same fulfi llment. Finnis adopts a different strategy, claiming that a sterile heterosexual couple is still engaged in the kind of sexual act that is marital: a husband and a wife who unite their reproductive organs in an act of sexual intercourse which, so far as they then can make it, is of a kind suitable for generation, do function as a biological (and thus personal) unit and thus can be actualizing and experiencing the twoin-one-fl esh common good and reality of marriage, even when some biological condition happens to prevent that unity resulting in generation of a child. Their conduct thus differs radically from the acts of a husband and a wife whose intercourse is masturbatory, for example sodomitic or by fellatio or coitus interruptus. ( Finnis 1997 , 35–36) It also “radically” differs, of course, from homosexual sex. Yet why should this kind of act make a moral difference? Like homosexual couples, infertile heterosexual couples cannot have children by having sex with each other. Like homosexual couples, they can be loving and affectionate. Why a biological process or difference in organs should spill into a moral difference remains a mystery. More recently, the philosopher Micah Newman (2014 ) has argued that the essence of sex is reproduction, and that any other function of sex, such as pleasure and pair bonding “can be understood as derivative of its primary function: all of the other features of sex exist because they further its primary, reproductive function” (225). Although we cannot derive ethical conclusions from merely biological claims, Newman claims that sex nonetheless has “moral saliency” because, fi rst, other people are “morally salient entities” and thus need to be treated rightly (228), and second, sex leads to the existence of other people, so sex has moral saliency: “if it be granted that sex is essentially about reproduction, since it should also be granted that reproduction has moral saliency insofar as it is crucial to the posterity of the species and thus human fl ourishing in general, whatever is crucial to human fl ourishing has moral saliency and therefore sex in itself has moral saliency” (228). From this Newman derives the claim that “if we behave sexually in a way ‘just as if’ sex had a different essence from what it has in fact, we are behaving immorally” (230). To Newman, this not only implies that morally correct sex is penile-vaginal, but also one that occurs within marriage, since procreation is not just about conceiving children but also raising them. Marriage, to Newman, is the life-long,
338 Marriage natural bond between a man and woman needed to see children to maturity and independence. 5 He states, “The man-woman bond that . . . we are currently referring to can be thought of as a natural kind that exists independently of our conventions; our conventions would ideally seek to recognize such unions” (232). He adds that much sexual activity today treats sex unethically because it is conducted in such a way as if sex is not about reproduction: “In fact, most commonly-accepted sexual behavior disposes itself toward sex just as if reproduction had nothing to do with it. Rather, it is just as if we happened to discover that rubbing certain parts of our bodies produces pleasure, and that was all there is to it” (233). Many would contest the claim that the only essence of sex, even in nature, is reproduction, especially given that Newman considers its other functions (pleasure) as derivative of reproduction. ( Gudorf 1994 ; Lloyd 2005 ). But let us assume that the essence of sex is reproduction and thus sex and sexual activity have moral saliency. Still, it is not clear how it follows that departures from reproductive sexual activities are immoral, unless we believe (and Newman has given us no good reason to believe this) that all sexual acts must aim at reproduction. Consider a couple who use contraception to avoid bringing children into the world. The couple would be treating sex as morally salient precisely by using contraception—by avoiding bringing into the world human beings that they are not willing to abort, raise, or leave for someone else to raise. Indeed, on an anti-natalist view of life, to approach sex in the best of moral ways is to have sex while ensuring as much as possible that no conception results from it. My point is that we can approach the moral saliency of sex in numerous ways, not only by reproducing. Of course, some people capable of reproducing have sex in negligent ways, as if sex has nothing to do with reproduction, and that displays the wrong attitude towards sex, not to mention leading to unwanted and undesirable consequences. But that some people display such an attitude towards sex or act sexually irresponsibly does not show that all non-reproductive sexual acts are wrong. Thus, we can agree that sex is morally salient but go on to argue that this does not imply only one moral attitude towards it. Indeed, in the case of people (gays, for example) whose sexual desire cannot lead to reproduction when acted upon, it is not clear why they cannot enjoy it for the pleasures it brings as long as they attend to the usual moral factors. 6 Thus, Newman has not succeeded in upholding a New Natural Law view. So the New Natural Lawyers’ case for the defi nition of “marriage” and for the immorality of non-marital sexual acts is not convincing. It does not seem to be that the nature of reality is such that it yields a “natural” defi nition of what marriage is. Now, one can claim that given the pervasiveness of marriage in almost all societies, the New Natural Lawyers are onto something important because they provide an explanation of marriage’s pervasiveness. That is, if marriage is not somehow natural, how else are we to explain its commonality, its endurance, and its cultural near-universality? The best way to do so, it seems, is along the lines of what the New Natural Lawyers propose: there is something about our
What Is Marriage? 339 very nature that leads to marriage. Perhaps they err in the details of the proposal, but a “natural” defi nition of “marriage” seems to be the best explanation. This reasoning is correct in that marriage’s pervasiveness cries out for an explanation, but it is a mistake to think that this explanation must be from nature or from human beings’ nature. Indeed, going back to Coontz’s claims, we should recall that the only thing common to all marriage (other than its pervasiveness) is that every society regulated marriage by using some set of rules or other. Given that the state was not always involved in marriages, “marriage” ends up basically referring to whatever set of rules and regulations are in place to regulate the cohabitation of people, the having of children, the transmission of property, and so on. But the social regulation of human arrangements is a normal and expected human activity. Whenever human beings decide to form associations among themselves, we expect some set of regulations, and marriage is no exception. Indeed, we expect to see rules and regulations especially in cases when people decide to, say, cohabit and have children, given society’s investment in such arrangements. And this is all the general explanation we need for the pervasiveness of marriage (the details will differ from one culture to another, and from one period to another). This means that we are free to think of the concept of “marriage” as referring to a thoroughly human-made institution, changeable from time to time given that it has no fi xed essence. From this it follows that how to defi ne the concept depends on what purposes marriage serves or on whether the concept of “marriage” has a generally socially accepted meaning that might depart in some ways from marriage’s purposes. Marriage’s Purposes and the Slippery Slope Argument Does marriage have any inherent purposes? Or do these purposes differ from culture to culture, from one period to another? Examining the slippery-slope arguments that have been given against same-sex marriage and evaluating them allows us to answer this question nicely. Slippery-slope arguments attempt to show that once we accept a form of marriage other than the one-man-one-woman, we would have to accept other (unacceptable) forms of marriage. Where the edge of the slippery slope begins depends on the views of the author in question, and so does what is considered an unacceptable marriage. 7 Slippery-slope arguments have two forms, what I call “the causal” and “the no-principles” forms. The Causal Version The essence of the slippery-slope argument is that accepting same-sex marriages opens the door to accepting other forms of marriage that are immoral, such as group marriages and marriages between siblings, parents and children, and people and animals. In the causal version, the argument states that accepting samesex marriage will probably or certainly lead to these unacceptable marriages.
340 Marriage Stanley Kurtz, a conservative writer, gives the causal version of the slippery-slope argument: “Among the likeliest effects of gay marriage is to take us down a slippery slope to legalized polygamy and ‘polyamory’ (group marriage). Marriage will be transformed into a variety of relationship contracts, linking two, three, or more individuals (however weakly and temporarily) in every conceivable combination of male and female” ( Kurtz 2013 , 144). The evidence that Kurtz gives for these likely effects of accepting same-sex marriage is that a growing number of academics, lawyers, and organizations have already begun agitating for polygamy and polyamory ( 2013 , 144–147, 148– 153). But this reasoning is weak. Just because some people advocate for these types of marriages does not mean that they will, or will likely, come about. After all, there are also people like Kurtz who advocate against such marriages. More interesting is why Kurtz fi nds polygamy and polyamory problematic. Note that the slippery-slope argument against same-sex marriage might or might not work depending on what it claims same-sex marriage leads to. If it claims to lead to any type of marriage whatsoever, then accepting same-sex marriage might be troubling because we wouldn’t want to accept marriages between, say, siblings or between parents and children. But if, as in Kurtz’s version of the argument, same-sex marriage leads to only polygamy and polyamory, the argument is not obviously troubling, because we need a good reason to think that polygamy and polyamory are unacceptable. Unlike the reasons usually offered against polygamy—that it usually takes the form of one man married to more than one woman, which usually means that the husbands treat their wives unfairly and that in patriarchal societies polygamy is a deeply sexist form of marriage—Kurtz’s reason is different: “it erodes the ethos of monogamous marriage. Despite the divorce revolution, Americans still take it for granted that marriage means monogamy. The ideal of fi delity may be breached in practice, yet adultery is clearly understood as a transgression against marriage. Legal polygamy would jeopardize that understanding” ( 2013 , 146). However, Kurtz never tells us how and why polygamy would endanger the ethos of monogamy. He needs to, because if most Americans were committed to the ideal of monogamy, polygamy would not threaten it. Perhaps the idea is that if it is sanctioned by the state, the state sends the message that it is okay, even good, to be in a polygamous marriage, and this gets Americans thinking of switching over from monogamous to polygamous marriages. But it is hard to predict how things will be if polygamy became enshrined in law—maybe people just won’t be attracted to it, even if the state sends the message that it is good. Moreover, Kurtz states that “in our world of freely choosing individuals, extended families fall away, and love and companionship are the only surviving principles on which families can be built” ( 2013 , 146). If monogamous marriage is the time-tested form of marriage for Westerners, and if love and companionship were its only, or prevalent, surviving bases, one would think that polygamy will have a hard time destabilizing monogamy. But suppose that state-sanctioned polygamy affects Americans’ thinking on this issue to the point where many start switching over to polygamous forms
What Is Marriage? 341 of marriage. Would this be a problem? Not obviously. First, it would have been “freely choosing individuals” who decide to make the switch. Second, it is unclear why monogamy is so morally absolute. Why can people not have the choice between monogamy and non-monogamy? Moreover, Kurtz shouldn’t take the claim that polygamy is opposed to monogamy for granted. If “monogamous marriage” means “marriage between two and only two people,” then polygamy would be opposed to it. But if “monogamous marriage” means “marriage in which the parties are faithful to each other,” polygamy would not be opposed to monogamous marriage, but could be one form of such marriage if the spouses are faithful to each other (see below). So if “monogamy” means “marital faithfulness,” as Kurtz seems to think, polygamy need not threaten its ethos. Moreover, many people distinguish between loveless sexual activity and sex with love. Married couples can agree, and many have, to have open relationships and understand marital fi delity in emotional, not sexual, terms. Because such arrangements are not necessarily immoral, it is not obvious that monogamy is such a sacred cow after all, and Kurtz needs to convince us why it is. 8 So far, then, Kurtz’s reasons that same-sex marriage will actually lead to polygamy and polyamory, let alone to other clearly unacceptable forms of marriage, are unimpressive. Note that if the ethos of society were generally hostile to such arrangements, but not to same-sex marriages, accepting the second would not lead to the fi rst. If the ethos is generally indifferent or even accepting of different types of marriage—a “marry, and let marry” type of attitude—then which forms of marriage should be accepted by society would have to be discussed on a case-by-case basis. There may be no good reasons (except, perhaps, practical ones) to reject group marriages, but there may be good reasons to reject incestuous marriages. There may be good reasons to accept same-sex marriages, and good reasons to reject other types of marriages. This denial of different good reasons for different types of marriages is the essence of the “lack of principles” version of the slippery-slope argument. The Lack of Principles Version The “lack of principles” version claims that accepting same-sex marriages removes any principles on which basis we could prevent these unacceptable marriages, even if they do not actually occur. A number of conservative commentators have voiced this version of the argument. Replying to the views of the gay conservative writer Andrew Sullivan, the conservative pundit William Bennett states, “Broadening the defi nition of marriage to include samesex unions would stretch it almost beyond recognition—and new attempts to expand the defi nition still further would surely follow. On what principled ground can Andrew Sullivan exclude others who most desperately want what he wants, legal recognition and social acceptance? Why on earth would Sullivan exclude from marriage a bisexual who wants to marry two other people? After all, exclusion would be a denial of that person’s sexuality. The same
342 Marriage holds true of a father and daughter who want to marry. Or two sisters. Or men who want (consensual) polygamous arrangements” ( Bennett 1997 , 275). Hadley Arkes, a conservative thinker and New Natural Lawyer, states, “I want to make clear that I am not offering a prediction. I am not saying that if we accept gay marriage we will be engulfed by polygamy and incest and other exotic arrangements. I am raising a question of principle about the ground on which the law says no [to these other arrangements]” ( Arkes 1997 , 277). Finally, the conservative commentator Charles Krauthammer states, “The problem here is not the slippery slope. It is not that if society allows gay marriage, society will then allow polygamy or incest. It won’t. . . . The point is why they won’t allow it. They won’t allow it because they think polygamy and incest wrong or unnatural or perhaps harmful. At bottom, because they fi nd these practices psychologically or morally abhorrent, certainly undeserving of society’s blessing. Well, that is how most Americans feel about homosexual marriage” ( Krauthammer 1997 , 284). Common to these three views is the idea that once we accept same-sex marriages, we lose the ability to reason cogently against other forms of marriage. There is a deep fl aw in this argument that I explain below. For now, consider two replies to it. First, Andrew Sullivan argues that homosexuality and heterosexuality are “states,” whereas polygamy is an activity. As states, sexual orientations are deep human traits and on whose basis people partly organize their lives, including choosing their companions and lovers ( 1997 ). Think of it this way: there are both heterosexual and homosexual polygamists, heterosexual and homosexual incestuous relationships. If we decide, on rational grounds, that polygamy, incest, and sex with animals are bad things, this will be so for both heterosexuals and homosexuals. Same-sex marriages, as such, have no necessary connections to polygamy, incest, and other “exotic” forms of relationships. Offering a reply similar to Sullivan’s, Jonathan Rauch states, “[N]o serious person claims there are people constitutively attracted only to relatives, or only to groups rather than individuals” ( 1997a , 286). Insofar as homosexuality (and heterosexuality) is a deep trait on which basis we decide whom we want to be with, love, or spend the rest of our lives with, they make for a compelling case for marriage. Not so for polygamy and incest: there are no sexual orientations for these. But whether there are sexual orientations for other things is not so clear. Indeed, bisexuality is considered a sexual orientation distinct from heterosexuality and homosexuality, and, as we will see below, the philosopher Kayley Vernallis argues that a proper marriage for bisexuals will have to be polyamorous, thus confi rming the worst fears of the above writers. Moreover, are we sure that necrophilia is not a sexual orientation? What about zoophilia (indeed, there might be a large number of zoophiliac sexual orientations depending on the animal: not everyone who is attracted to sheep will be attracted to horses). 9 However, the replies by Sullivan and Rauch do not go far enough, because the issue is ultimately not sexual orientation, but happiness and people’s ability
What Is Marriage? 343 to lead their lives as they choose. That is, the reason why Sullivan and Rauch emphasize that homosexuality and heterosexuality are deep character traits is because to most people these traits are the basis on which they choose their romantic mates or life partners, and people choose their particular mates in order to lead happy, fulfi lled lives. If someone were not interested in having a mate, marrying, or being in love, his or her sexual orientation would (or should) not play a role in Sullivan and Rauch’s arguments. But if so, then sexual orientation cannot stop the slippery-slope: What about someone who cannot be happy unless he marries his sister, his brother, his pet iguana, or his three roommates? He might say, “Look. It doesn’t matter whether I’m gay, straight, or bi. What matters is that I want to spend the rest of my life with Tom, Dick, and Harry, and they want to spend theirs with me and with each other. We also want everybody to recognize it. So we want to marry each other.” At this point, we can either argue that the relationship into which he wishes to enter is immoral, so the state is under no obligation to sanctify it through marriage, or we can argue that because the type of relationship into which he wishes to enter does not serve the purpose or purposes of marriage, the state is also under no obligation to sanctify it. If the relationship is immoral, we have a principled reason against it, contrary to what Arkes, Bennett, Krauthammer, and others think. If the relationship is moral, then we have no principled reason to reject it unless it does not serve marriage’s purpose or purposes. This brings us to the second point: the purpose of marriage. To Rauch, the purpose of marriage is not love, but to (1) bind pairs with each other so that they can take care of each other, thus relieving society and the state from having to; (2) provide a good environment for raising children; and (3) domesticate men: the power of marriage is “to settle men, to keep them at home and out of trouble” ( 1997b , 312). To Rauch, polygamy, incest, and other aberrant forms of marriage go against these purposes, and this is what, according to him, supplies us with a reason for rejecting them ( 1997a , 287). Polygamy goes against the purposes of marriage because “if one man has two wives, it follows that some other man has no wife,” with the result that “many low-status males end up unable to wed and dangerously restless” ( 1997a , 287), which goes against two of the above purposes of marriage, namely, that many men would be unsettled and would have no one, in their old age, to take care of them. Incest undermines marriage’s purposes because a society which allows incest would “devastate family life by, effectively, legitimizing sexual predation within it” ( 1997a , 288). Same-sex marriages would not undermine marriage’s purposes. One might think they do because if lesbians marry other lesbians, this would result in leaving many men unsettled. This is not true, because even if lesbians do not marry other lesbians, they would not marry men anyway. No matter how many men are unsettled, lesbian marriages would not be the cause. Lesbian marriages do, as far as we can tell, provide good homes for raising children, and they would allow lesbian couples to take care of each other, thus fulfi lling two purposes of marriage. Gay men marrying each other, in addition to fulfi lling
344 Marriage these two purposes, also fulfi ll the purpose of settling men, since two gay men would domesticate each other (perhaps not as effectively as one woman domesticating another man, but some domestication is better than none). If gay men don’t marry each other they wouldn’t marry women, and so would be undomesticated. There are two problems with this argument, one of which Rauch himself is aware. Gay group marriages fulfi ll Rauch’s purposes of marriage: spouses would take care of each other, provide an environment for raising children (some would say a more stable one than two-parent households), and settle men (in gay male group marriages). So we would still have polygamy, albeit of the same-sex sort. Rauch’s reply that “no homosexuals that I know of want the right to marry two or more same-sex partners, and society has no earthly reason to sanction such a frivolous right anyway” ( 1997a , 288) is weak, because the point is whether there are reasons, period, to demand this right, not whether Rauch knows of anyone who wants group marriage. Moreover, society could have good reasons to sanction such rights (polygyny might be justifi ed if society’s male population is being depleted due to war). So there are “earthly” reasons. And they don’t have to be dramatic, like wars: if some individuals make a good case that they should be allowed a group marriage, or if a woman offers religious reasons why she should marry three men, society could sanction such marriages, on a case-by-case basis, thus side-stepping the problems, according to Rauch, of widespread polygamy or polyandry and undermining the proper functioning of society. The second problem with Rauch’s view is that it is not obvious that marriage domesticates men, whether they are straight or gay. Part of the issue here is that “domesticate” means different things, with one meaning (emphasized in gay marriage debates) being “dampening male promiscuity.” If by “promiscuity” we mean lots of casual sexual encounters with many different people, marriage probably helps diminish this, because from a practical point of view it is hard to maintain a home or domicile while one (or both) of the spouses is continuously bed-hopping. But if “promiscuity” means “the opposite of monogamy,” marriage does not seem to work as well. Many gay male couples have open relationships, and some straight couples, too. Many spouses cheat on each other. When it comes to the sexual hunger for variety, marriage can only do so much. There is a better reply to the slippery-slope argument than Rauch’s or Sullivan’s: unless we can convincingly argue that “traditional” marriage has one or a few specifi c and primary purposes, defenders of the traditional one-man, onewoman marriage face the same slippery-slope objection (cf. Corvino 2005 ). Here’s how. Suppose that someone says, “Well, once you say that marriage is between one man and one woman, you have no principled reason why it cannot be between two men, or between two women, or between one man and two or more women, or between one woman and two or more men, or between two siblings, or between a parent and his or her child, or between. . . . The only reason you might have is tradition—that’s how-marriage-has-always-been. But even if marriage has always been this way—and it has not—this is not a good, principled reason.” Think of it this way: polygamy as such has nothing
What Is Marriage? 345 to do with being heterosexual or homosexual (historically speaking, virtually all forms of polygamous marriages have been between either one man and more than one woman, or, more rarely, one woman and more than one man). If marriage is between one man and one woman, what principled reason can be given for why a man (or a woman) should not marry more than one woman (or man)? Incest, as such, has nothing to do with heterosexuality or homosexuality (indeed, most cases of incest take the form of a father or stepfather sexually molesting his daughter). If marriage is between one man and one woman, what principled reason can be given why the two should not be closely related to each other? The same reasoning can be raised about other, more “exotic” forms of marriage. The point is that marriage between one man and one woman is not going to provide us with a principled reason as to why other forms of marriage are not admissible. Does marriage have one, two, or a few purposes that can stop the slipperyslope argument facing the traditional view of marriage? We can rely on historical, actual purposes, or on normative purposes. Historical, actual purposes won’t help the defender of traditional marriage for two reasons. First, people have married, and continue to marry, for various purposes, as stated earlier in the chapter. If, for example, people have married in the past for economic reasons, these same reasons can rule in favor of polygamous marriages (e.g., group marriages are stronger economic units than two-partner marriages). This is also true of marriage as an institution (as opposed to the individual couples), which has had many purposes throughout history and across cultures. Second, historical, actual reasons by themselves carry no principled weight; the fact that people have married for such-and-such reasons says nothing, in itself, about whether these reasons are principled. We would still have to argue why such-and-such reasons, not others, should be the purposes of marriage. We are left with normative reasons. I am not sure how one goes about arguing that some purposes, and not others, are normative when it comes to marriage. But from a list of plausible purposes, none preserves the traditional view of marriage. 10 For example, one such purpose is romantic love. Love rules out marriage between a person and an animal (even if the person claims to romantically love the animal, we are hard-pressed to believe that the animal, even if from a higher species, reciprocates in generally mutual and equal ways). But it would not rule out incestuous relationships in a principled way, because, even though siblings do not usually romantically fall in love with each other, it is possible that they do (similarly for parents and children). Nor would romantic love rule out polygamous relationships: it is possible, and has happened, that one man loves more than one spouse, say. It certainly doesn’t rule out same-sex marriages. So if love is a normative purpose of marriage—if marriage should be for love—then it won’t exclude same-sex marriages, and may even allow some polygamous and incestuous marriages. It would basically allow any marriage based on romantic love. Indeed, many marriages that start with RL1 end up with RL2. But RL2 is a form of love similar in many respects to friendship love. If society can accept
346 Marriage RL2 marriages, why not accept friendship marriages? The answer cannot be “sex” because many RL2 marriages are sexless. Nor can the answer be “intimacy” because friendships have their own forms of intimacy and accepting only the intimacy of RL2 is arbitrary. So romantic love, despite its rootedness in our collective psyche as the purpose of or reason for marriage cannot serve to limit marriage to two people, let alone to two people who are of opposite genders. With a strong enough case, it might not keep siblings out! Companionship, another plausible normative purpose for marriage (and one close to RL2, surely), fares worse: it does not in principle rule out any form of marriage. Companionship is a perfectly good reason to marry three other people, whether same-sex or opposite-sex. It can also be a good reason to marry one’s siblings, cousins, and other family members. Procreation, another plausible purpose, rules out too many forms of marriage while not ruling out others: it rules out same-sex marriages, marriages between heterosexual couples past the ability to procreate, and heterosexual couples one or both of whom is sterile, but it does not rule out heterosexual incestuous, polygamous, or polyamorous relationships. Moreover, more sophisticated versions of the procreation purpose—such as the New Natural Lawyers’—while formulated so as to rule in the (what is to them) right and rule out the wrong purposes, are implausible. 11 I am not hopeful that one, two, or a few normative purposes of marriage exist such that only traditional marriage ends up being the right or proper form of marriage. First, speaking of the purpose of marriage could mean “whatever reasons the married partners have for getting married,” or it could mean “the social function that marriage as an institution serves, regardless of the specifi c reasons that the married partners have.” If the fi rst, then people marry for many reasons, and we are hard-pressed to know which one is the normative purpose of marriage. The second meaning is more plausible because it makes more sense to speak of the function of marriage as a whole, but what criteria should we use to decide the purposes of marriage as an institution? And how can we differentiate between purposes of marriage and its by-products ? To see the diffi culty here, consider again Rauch’s views. Rauch argues for marriage’s purposes, specifi cally “settling males and providing reliable caregivers” ( 1997b , 312), by reminding us that whenever packs of young males get together we can expect trouble, and that when a single person gets sick it is his friends, his family, or even social institutions who will have to take care of him. Thus, he infers from these observations that the purposes of marriage are to domesticate men and to provide caretakers. Fair enough, and the purposes he gives sound plausible. But, fi rst, the purposes Rauch gives are plausible only in our time or in particular societies. In the past, marriage functioned as cementing political alliances, with husbands often taking on numerous mistresses (no domestication here). For individuals to be able to strike out on their own away from their parents, they married and had children, because wives and children were a form of labor without which individuals could not live independently from their parents. Thus marriage also provided labor in the form of a wife and children.
What Is Marriage? 347 But this is not caretaking as Rauch understands it. In some societies, it is the family of the spouse that takes care of him or her when he or she grows old, not the other spouse. Second, and this is crucial, Rauch’s views equally support the idea that male domestication and caretaking are good by-products of marriage (not its purposes). Looking only at how marriage functions in society rather than the married couples’ reasons for marriage, we cannot tell that these are marriage’s purposes instead of its by-products. We know that holding pens is a good by-product of a mug, not its purpose, only because we already know that the purpose of mugs is for drinking. Not so with marriage. We have no universal blueprint for its purposes, so differentiating its purposes from its by-products is diffi cult, if not impossible. So, yes, maybe marriage does domesticate men (to some extent), but is this a purpose of marriage or a (to some people welcome) by-product? The point is that even if Rauch’s purposes for the institution of marriage sound plausible, we cannot be confi dent that they are culturally and temporally universal, or that they are purposes rather than by-products. From what history tells us, chances are that the purposes of marriage depend on time and place. Of course, we can agree with this point and discuss marriage and its purposes contextually. In the case of contemporary Western societies, we can say marriage provides caretakers and domesticates men in addition to providing companionship, providing a stable context for raising children, and allowing couples to have their love legally and socially recognized. Without a proper set of normative purposes for marriage, we can launch the slippery-slope argument in the face of any form of marriage. Thus, the argument is useless when it comes to debating marriage. Whether a form of marriage is acceptable depends not on what other forms of marriage it can lead to, but on other considerations: if we think that marriage between a man and a dog is unacceptable, this is not because it will lead to marriage between men and crickets or between women and trees, but because marriage between human beings and animals is morally problematic. So which other forms of marriage should be legalized ought to be considered on their own merits. The Meaning of “Marriage” and the Slippery-Slope Argument I mentioned above that even though marriage has served multiple purposes and was entered into for various reasons across times and cultures, this does not mean that at any one point in time or location “marriage” as a concept or idea does not have a general, fi xed social meaning. Now, the purposes of marriage at one time need not be the same as how marriage is understood at that one time. For example, people might understand “marriage” to mean something like, “A bond entered into by two people in love” yet marriage as an institution might serve many purposes other than being the vehicle for the people to maintain and express their love, much like we might have at one point in time a general understating of “educational institution” yet agree that it serves
348 Marriage various purposes during one period or over time. So perhaps understanding the meaning of “marriage” might be a way to stop the slippery-slope argument: we might be able to argue that “those forms of marriage that are excluded from the social meaning of ‘marriage’ are not real marriages and the state should not recognize them.” This might be a way to stop the slippery slide down the slope. The philosopher Ralph Wedgwood thinks that “marriage” does have a general social meaning ( 1999 , 2016 ). This social meaning refl ects social expectations of what is typical of most marriages. He states, “[I]t is generally expected that typically, most marriages have the following three features: (a) sexual intimacy between the spouses, at least at some point in the history of their relationship; (b) economic and domestic cooperation —the spouses work together in coping with the necessities of life; and (c) a mutual commitment to sustaining the relationship, at least the beginning of the marriage” ( 2016 , 34). He disagrees that the meaning contains any “specifi c conjugal ideal” (such as love) since no such ideals seem to be shared throughout society ( 2016 , 34). He also emphasizes that having a shared social meaning is compatible with the existence of some atypical marriages, marriages that do not fi t the social meaning ( 2016 , 34). Let us agree with Wedgwood that the above three features do constitute a generally shared social meaning of “marriage.” Thus, according to him, if someone tells a group of people at, say, a party, “I’m married,” the people will understand his or her answer in light of the above three features. Indeed, one crucial reason, according to Wedgwood, why the social meaning of “marriage” is important is that it gives “marriage this communicative power.” He goes on to claim, “If that is right, then we can see why the exclusion of same-sex couples was never a fundamental aspect of the social meaning of marriage. The reason for this is simply that it is already a public fact about virtually every person in our society whether that person is a man or a woman. So, oppositesex couples did not need to get married to communicate the fact that they were a couple consisting of a man and a woman; that was already a publicly known fact about those two people” ( 2016 , 37). What Wedgwood means is this. If an opposite-sex couple declares to a group of people that they are married, they will be able to communicate the general social meaning of marriage, and their listeners will be able to understand what they are saying. Allowing same-sex marriages does not obstruct this. How so? Imagine a time before same-sex marriage existed, and imagine the same opposite-sex couple saying to a group of people, “We’re married.” Allowing same-sex marriage would not obstruct the communicative meaning of what they said; their audience will understand what the couple told them. Now that same-sex marriage exists, same-sex couples are also able to clearly communicate to their listeners when they say, “We’re married.” However, Wedgwood believes that the social meaning of marriage does fundamentally exclude group or polygamous marriages; he states, “[I]t would not actually be possible for groups that have more than two members to be included in a legal or institutional relationship that had the core social meaning of marriage as we know it” ( 2016 , 43). The reason he gives is that the communicative
What Is Marriage? 349 power of marriage would be impaired: “Imagine that whenever one learnt that someone was married, one could not form any clear expectations about the number of people involved in the marriage in question” ( 2016 , 43). Thus, on Wedgwood’s view, we can use the general social meaning of marriage to fi gure out which new forms of marriages fi t the social meaning and which do not. This could be a way to stop the slide from opposite-and same-sex marriage to group or polygamous marriages. Is Wedgwood correct? Is it plausible that marriage has this shared social meaning? He might be right to exclude any further specifi c content from it about, say, the ideal conjugal relationship. When immigration offi cers, for example, investigate whether a couple are really in a relationship, they do not care to know whether the couple are in love , only whether they are in some deep way committed to each other (e.g., by sharing a residence and by having joint bank accounts). So insofar as the law refl ects (or attempts to refl ect) the social meaning of marriage, Wedgwood seems right about these three core features. Wedgwood is also right that communicative success is a core reason for the social meaning of marriage. This is, after all, why meanings in general are important: without shared meanings of concepts and other things, communication would be seriously impaired and certainly much less effi cient. However, his reasons for excluding group or polygamous marriages seem arbitrary. For instance, when he argues that the inclusion of same-sex couples does not change the fundamental meaning of “marriage,” he uses the example of a straight couple telling others that they are married. Their audience will understand what they mean, for sure. But what if only one of them announced to the group that he is married? If there is same-sex marriage, the communication might be impaired, because “one could not form any clear expectations about the gender of the people involved in the marriage in question” (I left the same quotation from above but changed “number” to “gender” and added “the” before “people”). If the lack of forming a clear expectation about the number of people is a reason to exclude group marriages, why not also exclude samesex marriages given the lack of a clear expectation about the other gender? It seems to me that if the core social meaning of marriage are the three features that Wedgwood set forth, then such a lack of clear expectations is not a serious impairment of communication, and the audience would still understand that the person in question is married to someone (or more than one) in such a way that some sexual activity was involved at some point, at least, in the relationship, that they are involved in domestic and economic cooperation, and that they are committed to sustaining the relationship. You can better see how the inclusion of group marriages does not involve a fundamental change in the social meaning of “marriage” by seeing how including marriages to pets, and to, say, DVD collections would fundamentally change such a meaning: given that a pet cannot be committed to sustaining a relationship or to daily cooperation, and that sex between human beings and other animals is taboo or uncommon, telling someone “I’m married” would not inform the listener at all about the nature of one’s marital relationship. The listener would not know whether
350 Marriage the speaker was in a mutually sustaining relationship or whether the speaker has had sex, at some point, with his or her marital partner, because the listener would not know whether the speaker is married to a cat or to another human being. That is a serious impairment in communication. More crucially, impaired communication or not, marrying animals and things would change the fundamental meaning of marriage that Wedgwood proposes precisely because it involves understanding marriages as no longer being about mutually supporting relationships or sexual relationships. Thus, we can stop the slide to strange and bizarre marriages using the idea of a common social meaning (with the above three features) to “marriage” though we cannot stop it for same-sex marriages and group marriages. Note two things regarding the social meaning of “marriage.” First, although the three features that Wedgwood gave are plausible features of this meaning, what the meaning is ultimately is an empirical matter (as Wedgwood agrees, 2016 , 34). So the three features might need to be tinkered with or added to. Second, and connected to the fi rst point, the social meaning of marriage can change and has surely changed over the past (though, I submit, that the three features that Wedgwood presents are as good contenders as any for a universal stable meaning to marriage). This means not only that such meaning can change over time due to unintended consequences of human activity but that it can also change due to intentional activity on our part: if we decide, for example, that for policy purposes marriage needs to be more inclusive, then we would be also changing the shared social meaning of “marriage.” The fact that the shared, social meaning of “marriage” does not prevent group or polygamous marriages means only that we have no good reason to prohibit them. It does not mean that there are good reasons for them. Are there? Let’s consider a few of them. Forms of Marriage and Monogamy Let me begin by asserting that transgender marriages—that is, marriages that involve at least one transgender person, whether that person transitioned before or after the marriage—should present no philosophical obstacles whatsoever to marriage: (1) Given that we have no biological and physiological criteria that are necessary for someone being a man or a woman, transmen and transwomen should be included in the categories of “man” and “woman” respectively. That is, once it is true of x that x is a woman, whether cis or trans, then x is a woman, period. (2) Given that marriage has no essential purposes that might be thought to rule out transgender marriages (e.g., reproduction in some cases), transgender marriages are marriages, and this should not raise any new philosophical issues not already addressed in this chapter. (3) Given that the shared social meaning of marriage does not rule out transgender marriages, this too should not raise any new philosophical issues not already addressed in this chapter. 12 From now on, in discussing bisexual and polyamorous marriages, I take it for granted that some of them might involve transgender people.
What Is Marriage? 351 Bi-Marriage Recently, the philosopher Kayley Vernallis has argued for a form of marriage that she calls “bi-marriage”: this is a marriage that involves at least four genderspecifi c bisexuals, two of whom are men and two of whom are women ( 2017 ). Gender-specifi c bisexuals are bisexuals who are attracted to the specifi c individuals based on their gender. That is, if x is attracted to y , and y is a man, then x is attracted to y partly because of y ’s male-gendered features. Put differently, a gender-specifi c bisexual is not someone who is indifferent to the gender of the object of his or her sexual attraction. A gender-nonspecifi c bisexual, on the other hand, is someone who is attracted to others based on their gender-irrelevant individual features. Thus, both types of bisexuals are attracted to both genders, except that to the gender-specifi c bisexual the gender of the object of attraction is a necessary feature on which the attraction is based, whereas to the gendernonspecifi c bisexual the gender is not such a feature. I will henceforth use “bisexuals” to refer to only gender-specifi c bisexuals. According to Vernallis, for bisexuals to be treated equally when it comes to marriage, there needs to be more than a two-and-only-two-person marriage, be it opposite-sex or same-sex. Her reason is simple in essence: Suppose that a bisexual woman marries a man (whether he himself is bisexual is at this point irrelevant). Then the woman will have to sacrifi ce her ability to act on her desires for women if she is to also be faithful to the man. Of course, they can agree to an open marriage, but this is not fair because gays and straight people don’t have to have recourse to open relationships in order to cash in on the goods and benefi ts of marriage while also acting on their sexual identities. Vernallis’s argument can be put in the following way: there are certain ideals of marriage that apply to gays, straight people, and bisexuals. For bisexuals to be able to live up to these ideals—or for bisexuals not to be unfairly discriminated against as far as these ideals are concerned—they have to be allowed to enter into marriages of foursomes ( 2017 , 169–74). What are these ideals of marriage? Vernallis lists choice, mutuality, commitment, sexual self-expression, fi delity (or exclusivity), and family stability ( 2017 , 171). Except for choice, any marriage not involving four (or more?) bisexuals—two men and two women, specifi cally—would violate one or more of these ideals. For example, if two bisexual women marry two straight men, the women would be able to fully sexually express themselves, and so would the men, but the marriage overall would not satisfy the ideal of mutuality, since the two men will not have a mutual relationship with each other (or one that includes a sexual aspect). The example above of one bisexual woman married to one straight man illustrates the lack of full sexual self-expression on the part of the woman without resorting to cheating or an open relationship. If she were to marry a bisexual man, he too would not be able to fully sexually express himself without cheating or being an open relationship. But cheating would violate the ideal of fi delity, and open relationships might violate the ideal of commitment (and maybe mutuality). 13
352 Marriage Thus, Vernallis uses the ideals of marriage so beloved to the conservatives to turn the philosophical tables on their heads (not to mention showing why gay writers such as Rauch and Sullivan are wrong). In effect, she defends polyamorous marriages, except that they happen to be ones that contain only bisexuals. Moreover, given her argument, there is no reason, except for practicality and logistics, to stop at four members to the marriage. Why not groups of fi ve or six or more, as long as they are all bisexuals of (roughly) equal number of genders to satisfy the ideals that Vernallis lists? One can object that marriage is about love and love is exclusive, so bisexuals, just like everyone else, should just marry one person, no more. But we have seen that marriage is not always about love, and we have also seen that love is not necessarily exclusive. Indeed, to the extent that sexual desire abets falling in love, as we have seen in Chapter 2, bisexual love (at least RL1) might not be as exclusive as non-bisexual love: Marianne, a bisexual woman, fi nds herself sexually attracted to Jacob, and wham, she falls in love with him. A few days later she meets Josephine, is sexually attracted to her, and wham, she falls in love with her . Because the experience of being sexual with men is different from being sexual with women (at least in some respects), it might well be that Marianne develops love for each of Jacob and Josephine, and the love for one need not block the love of the other. I am not making a point about the nature of bisexual love (there might be no such thing), only about how variations in sexual desire might enable non-exclusive romantic love. Is there any other (non-practical) reason why we should reject Vernallis’s bi-marriage? Three objections come to mind. First, Vernallis’s view is hostage to some extent to a particular conception of “sexual orientation,” one that includes the gender/sex of the person with the orientation and gender/sex of that person’s object of sexual attraction. To be a gay man one has to be a man. However, the philosopher Robin Dembroff has recently argued ( 2017 ) for a reconceptualization of “sexual orientation” in such a way as to drop the reference to the agent’s own gender/sex. So, under the current conception of “sexual orientation” a gay man and a straight woman do not share the same sexual orientation; he is gay and she is straight. But under Dembroff’s suggestion, both would share the same sexual orientation of, say, being “men-philes.” If this were the proper conception to adopt of “sexual orientation,” then Vernallis would no longer need marriages of four or higher. A triad would do. Second, one might object that sexual self-expression is a weak ground on which to permit bi-marriages. After all, there are men and women (straight or gay) who enjoy sex a lot, and who, to fully sexually self-express themselves, need to have sex with multiple partners. But when they decide to marry and “settle down,” they agree to have sex with just one person. Why can bisexuals not do the same? A third, related objection is that even if we set aside the issue of self-expression, marriage is monogamous, so bisexuals should just suck it up like everyone else and marry just the one person. That is, sexual self-expression or not, “marriage” means marrying just one other person, period.
What Is Marriage? 353 Since both these objections rely on the idea of monogamy, we should address it. Monogamy and Polyamory “Monogamy” is an ambiguous expression. It could mean “marital sexual faithfulness,” according to which two (or more) people are monogamous if they are sexually faithful to each other. This meaning of “monogamy” opposes that of “adultery.” It also, more often than not, functions as an ideal, whereby spouses take vows or desire to be monogamous, but in fact depart from the ideal by one or both of them committing adultery. “Monogamy” could also mean “a two-, and only two-person marital relationship.” This notion of monogamy is opposed to that of polygamy. Under this meaning, monogamy need not be restricted to heterosexual couples, and it need not be restricted to legal marriages: a samesex couple who are not legally married would be monogamous in this respect. Clearly, “monogamy” meaning “sexual fi delity” cannot be used as an objection to bi-marriage or to polyamorous marriages in general, because in such arrangements the partners to the marriage could be sexually (and emotionally) faithful to each other. Indeed, one main reason why many people prefer to be in polyamorous relationships is to avoid situations in which they are with only one person and end up cheating on him or her. An ideal such as that of “radical honesty” prompts many individuals to shun relationships in which one has to lie about one’s desires for, say, multiple sexual partners ( Brake 2017a ; Shotwell 2017 ). The avoidance of having to cheat on one’s partner is a noble aim. This is because sexual unfaithfulness can be incredibly hurtful and harmful. It often involves promise-breaking, lying, and deception, and it often leads to harmful results to the person to whom the broken promise has been made, the person being lied to, or the person being deceived. Moreover, if sex symbolizes emotional involvement, affection, or love, the harm to the cheated-on-spouse might even be deeper, since then the infi delity would not be only sexual, but also emotional. Harm also affl icts the person with whom the spouse is committing adultery, by perhaps being misled into thinking that the adulterous spouse has feelings for him or her. Third, continuous or persistent promise-breaking, lying, or deception often has harmful consequences for the adulterous spouse: his or her moral character starts eroding (or erodes even further if it is bad to start with). On all these points, adultery turns out to be a serious moral wrong and avoiding it a good thing. If one can do so without sacrifi cing one’s sexual desires and emotional needs for multiple sources of affection and love, polyamory seems to be the way to go. Here we begin to see some arguments against monogamy, certainly if it is intended to be permanent, and arguments for being polyamorous. Before we look at these arguments, it is important to keep some points in mind. First, polygamy and polyamory can come in a bewildering variety of different types. There’s polygyny, polyandry, and group marriages, each of which can be heterosexual, homosexual,
354 Marriage or both. Polygamy is the marriage of x to y , w , and z , but y , w , and z are not married to each other. Polyandry is the marriage of one woman to more than one man, while polygyny is the marriage of one man to more than one woman. Polyamory, insofar as it is refl ected in marriage, would be the marriage of a number of individuals to each other—group marriage. They have legal and non-legal aspects. They are formed for a variety of purposes, which means that a moral discussion of polygamous marriages undertaken for purposes of, say, love is different from a discussion of it when undertaken for, say, political or economic reasons (cf. Anapol 2010 ; Casler 1974 ). Second, the above is one crucial reason why there is no agreed-upon defi nition of “polyamory.” Indeed, it is not even clear whether polyamorous relationships are about love or about sex or both. I favor understanding them to be about love, fi rst and foremost (though, of course about sexual or romantic love), because otherwise it is hard to see what the fuss is about: So what if three, four, or more people wanted to be in a purely group sexual relationship? This would just be a complex arrangement of friends with benefi ts. It would be practically complicated, yes, but so what? Indeed, the literature on polyamory is all about honesty, lack of possessiveness, trust, openness, avoidance of jealousy—issues that are usually serious in the context of romantic relationships, not just sexual ones. Third, a discussion of polygamous and polyamorous marriages in their legal forms is bound to be extremely diffi cult because in Western societies no polygamous or polyamorous marriages exist (and I know of no society in which the latter exists). Because marriage involves a host of legal rights, both as duties and privileges, trying to imagine how polygamous and polyamorous marriages would be legally organized were they to exist is, to use an understatement, daunting. We also cannot dismiss the legal aspects of marriage as morally irrelevant, because they are far-reaching and deeply affect people’s lives. A further related complication is that marriage, especially polygamous marriage in which one man has more than two wives, has been accused of sexism. As society heads toward being less and less sexist, one can claim that in a non-sexist, “utopian” society polygynous marriages would not be sexist. Although this sounds plausible, imagining what such marriages would “look” like is extremely diffi cult, one reason (among others) being the sheer diffi culty of knowing what such a utopian society would itself look like. The philosopher John McMurtry, in an essay from 1984 aptly titled, “Monogamy: A Critique,” raises serious moral problems with monogamy. His essay is valuable and instructive, and it remains a cornerstone of a discussion of the problems of monogamous marriage. 14 Three points are especially worth addressing. (1) Responding to the idea that monogamy fosters intimacy between the two spouses, McMurtry claims that there are reasons to believe that it actually does the opposite: “Formal exclusion of all others from erotic contact with the marriage partner systematically promotes conjugal insecurity,
What Is Marriage? 355 jealousy, and alienation.” It does so because it makes each partner the sole sexual outlet for the other, so that if the sex is disappointing or is not good, the partners feel insecure about themselves. Moreover, because our sexual needs are not naturally confi ned to one person, in monogamy each spouse might feel insecure and jealous that his or her spouse will seek sex with others. Such insecurities and jealousies are bound to make the spouses more and more alienated from each other. ( 1984 , 111–112; see also Gregory 1984 ) There is something right in what McMurtry is saying, and the avoidance of jealousy and possessiveness is one crucial reason why many polyamorists opt for polyamorous relationships (Brake 2017a; Shotwell 2017 ). With more than two spouses in the mix, each spouse has sexual and emotional access to more than one person, thus eliminating the need to go outside the marriage for sexual and emotional outlets. 15 McMurtry is right that monogamous marriage has had its share in promoting insecurities and jealousies among spouses, though, surely, the larger culture in which monogamous marriage exists plays a role in this, too. I would also add that emotional security is much more crucial than sexual security: if the spouses love each other, yet one spouse, x , proves to be abusive, to be undergoing diffi culties that affect the marriage, then y often feels lonely, or at a loss. Y can turn to friends, of course, but in a culture that places much more importance on love than on friendship, spouses like y often feel on their own. Perhaps having other spouses who are in love with each other and with x might lessen the alienation and the loneliness, much as siblings grieving together for the loss of a parent have an easier time than a child grieving on his or her own. Still, we should handle this point carefully. Polygamous or polyamorous marriages and relationships might contain their own share of jealousy or insecurity. They might even have their own problems. For example, Paul, one of the spouses in a group marriage, might ask himself, “Layla has had sex four times this week with John, and only once with me. She also did that last week and the week before. Is there something wrong with me? Why does she prefer John to me?” The issue here, however, might not be so much monogamy or polyamory, but, for lack of a better term, human nature and the nature of love. That is, no matter how committed some people might be to the ideal of openness, nonpossessiveness, sharing, and so on, lovers are bound to be feel some sort of jealousies, rivalries, and so on in such group arrangements. It might have to boil down to which evil we choose to live with. (2) McMurtry makes a nice point about children: “Limitation of the marriage bond to two people necessarily restricts, in perhaps the most unilateral way possible consistent with offspring survival, the number of adult sources of affection, interest, and material support and instruction of the young.” Monogamous marriage provides “the structural conditions
356 Marriage for such notorious and far-reaching problems as sibling rivalry for scarce adult attention and parental oppression through exclusive monopoly of the child’s means of life” ( 1984 , 111). The idea is that with only two parents, children have to compete for their attention, instruction, and support. Having two parents also means fewer avenues for those children whose parents abuse their power over them. However, having more than two parents provides more sources of education and emotional as well as other kinds of support, and allows the children to get out of the grip of an abusive parent by going to the others for support. One might object that the above problems need not only be alleviated by polygamous or polyamorous marriages; they can be alleviated by extended families, in which children live not only with their parents, but also with their aunts, uncles, cousins, and grandparents (if not in the same house, at least in the same building or neighborhood). I suspect, however, that extended families won’t be enough given the kind of issues that McMurtry raises. For one thing, children still understand who their parents are and they understand that an uncle is an uncle, not a parent. Given that parents tend to have stronger relationships with their own children, an uncle’s support or attention might not be deep or strong enough to meet the children’s needs. Moreover, uncles and other family relatives have more or less limited social, legal, and emotional access to their nephews, nieces, or grandchildren. This is not because of physical or emotional distance, but because of social and legal understandings that limit the roles that extended family members can play when it comes to the children of their siblings or their grandchildren. Finally, uncles, aunts, and grandparents often have their own children to deal with and their own set of problems to attend to. Extended families, then, might help lessen the problems that McMurtry mentions, but they won’t be enough. (3) McMurtry also claims that “larger groupings” have resources and advantages that monogamous marriage lacks: “(a) the security, range, and power of larger socioeconomic units; (b) the epistemological and emotional substance, variety, and scope of more pluralist interactions; (c) the possibility of extra-domestic freedom founded on more adult providers and upbringers as well as more broadly based circles of intimacy” ( 1984 , 112). The point is that groups larger than two tend to be stronger, more resourceful, more stable, and to contain more diverse avenues of emotional, educational, material, and other kinds of support. This also sounds plausible. But we have to also keep in mind that although with larger groups comes larger variety, resources, and so on, more confl ict is also inevitable, because the more people are involved with each other, the more tastes, individual preferences, egos, and so on, come into play. The more of them that come into play, the higher the probability of confl ict. It is much
What Is Marriage? 357 easier for two people to agree on something than it is for three, four, or more people to. Of course, polygamous and polyamorous marriages will have to have some rules agreed to by the spouses to be workable ( Shrage 2016a ). But what these rules are and whether they will work remain to be seen, which is part of the larger point that whether such marriages are successful is an issue on which we have little to go on to decide it. Moreover, we cannot discuss these marriages simply by imagining our culture and society as they are and grafting the marriages onto them; they cannot simply be part of current society and culture. For them to exist, society will have to accommodate them, which means that it will have to undergo major changes, because as it exists today, society is hostile to them. So simply seeing how polygamous and polyamorous marriages would fi t in today’s society might be a futile exercise (it might be easier to think about them as non-marital relationships, because the legality of marriage complicates things tremendously). Nonetheless, philosophically speaking, there are two important points to be made, one weak and one strong. The weak point is that there is no good reason to think that polygamous or polyamorous groupings are somehow immoral or off, certainly not in deeper ways than are monogamous arrangements. Although some of their forms might be morally problematic (e.g., sexist polygynous marriages), they do not seem to be inherently wrong (but see Brooks 2009 ). They are thus morally permissible. So even if monogamy has no problems of its own, even if it is perfectly morally acceptable, we have no good reason to believe that it should be the only morally acceptable option. The strong point is that not only are polyamorous groupings permissible, they are to be morally and socially encouraged, if we are willing to face up to and accept a couple of facts (though I am sure many will reject them as facts). First, sexual desire seems to seek variety by its nature, and sexual desire for the beloved eventually wanes and goes away. To insist that x and y remain sexually monogamous is unnecessarily stifl ing and serves no purpose other than to meet the emotional insecurities of the spouses (which can be met in other ways). Second, spouses often need additional resources and help in rearing children and in supporting each other, emotionally, fi nancially, and practically. Children, too, can use additional sources of affection and help. (When thinking of themselves as a couple, having additional family members participate and help is often felt as intrusive.) Third, passionate, exclusive love (RL1) tends to give way to the calm, deep love of RL2. RL2, in its turn, is a form of companionship love, one characterized by physical and emotional intimacy. In the current cultural climate, RL2 tends to be exclusive given social insistence on coupling (which breeds the desire for coupling in the partners to the love or marriage). But there is nothing inherent to RL2 that would prevent lovers from having additional romantic or companionate partners to make their lives better and richer. Think about it. You’re in a monogamous relationship. You come home to an empty house and wait for your spouse to come home. He or she comes home and you have very little to talk about. Worse, he or she comes home in a bad mood, you have an argument, and each of you just looks at the wall in anger
358 Marriage and frustration. Your friends have their own lives to lead, and they cannot just drop everything to entertain you and to be a shoulder for you to cry on (their attitude is basically: “Hey, you decided to be with someone ‘special,’ so suck it up.”) Now imagine yourself in a triadic or quadratic relationship. You come home and one other spouse is home already, or you don’t have to wait too long for one of them to come home. When they all come home you have tons to talk about. And if one of them is in a bad mood, the others are there. And these are just some of the benefi ts of just one aspect of relationships, the emotional and psychological aspect. We have not said much about other aspects. What can be wrong with such arrangements? Why should we not aspire to them? One worry is that such groups will face their own problems. This is true, but there is no avoidance of problems in life. The issue is how grave the problems are and how they weigh against the benefi ts. Another worry is that in polyamorous arrangements lovers will love each other less. But love is not like a water reservoir that gets emptier and emptier the more people use it. One can love more than one person at a time without any diminution in the feeling or the emotion. If parents can love more than one child, if friends can love more than one friend, then lovers can love more than one beloved. They might not be able to love too many, as we have seen in our discussion of exclusivity, but two, three, or four seem doable ( Brake 2017a ). A more serious worry, to my mind, arises from one reason for entering into or forming polyamorous groupings, namely, sexual variety. The worry, put simply, is that much like x eventually gets sexually bored with y , x will eventually get sexually bored with y , z , and w , and might be tempted to cheat. So if polyamory is meant to fi x this problem, it might do so only to some extent. Eventually, the temptation to seek sexual variety outside the group might arise. So either polyamorous groups will have to be enlarged, or at some point, they will have to be emotionally closed but sexually open. (Telling x to sacrifi ce acting on x ’s sexual desires might defeat the point, or one point, of group relationships.) Since polyamorists are in principle open to all forms of romantic and sexual arrangements, having an emotionally closed but sexually open triad, for example, might be the way to go (with the usual honesty and other rules and understandings in place). Of course, the above is somewhat ideal. Pulling these arrangements off in practice will not be easy. In addition to the practical issues, the psychological and social ones are tremendous and should not be underestimated (and they in turn make the practical diffi culties even more diffi cult). Put briefl y, society is generally hostile to such arrangements and will put obstacles in their way. Facing these obstacles makes it even more psychologically diffi cult to pull them off, over and above overcoming our usual jealousies, possessiveness, insecurities, and the sheer lack of desire to enter these relationships given what we have been taught over the ages. I would like to add also the serious diffi culty of divorce and how that would be handled in group marriages. This diffi culty is practical, involving, for example, heavy fi nancial costs, but it is also psychological and moral, as divorce is usually a very diffi cult process. I will return to this point briefl y in the next chapter.
What Is Marriage? 359 These diffi culties notwithstanding, we can conclude that “monogamy” is no principled objection to bi-marriages and polyamorous marriages: if it means “sexual fi delity,” then either the members of the polyamorous groups can be sexually faithful to each other or have sex outside the relationship but without having this sex amount to wrongful adultery. If “monogamy” means “marriage of only two people to each other at a time,” we have seen reasons why monogamy has moral problems and why polyamory might be better in some respects. At the very least, monogamy is not an option that should close down other options, including that of polyamory. Indeed, because culturally and psychologically speaking we are skewed against polyamory, and because polyamory can be very benefi cial and liberating to many people, we need to help put its benefi ts in more cultural circulation, so to speak. Summary and Conclusion The writers who worried about same-sex marriage being an in-principled slippery slope are right: once we accept same-sex marriage, we tinker with the idea of marriage as one-man-to-one-woman. Once we do so, we have no reason to stop at same-sex marriages and we might have good reasons to accept other forms of marriage. If marriage can be changed to include gay couples, why not change it to include bisexual partners, in which case we might have marriages of four, if Vernallis is right? And once we tinker with the genders and the sexual orientations of the partners to a marriage, why not tinker with their number? Not only do group marriages not go against the generally accepted social meaning of “marriage,” we have good moral reasons for polyamorous groupings, and if such groupings are entered into for the usual reasons on the basis of which people marry, especially love, why not have the state accept these groupings and allow them to marry? We might then wonder what next: Should people be allowed to marry their pets? Their DVD collections? Their gardens (what better way to spend the afternoon than in a stroll in the garden?). Are there any principled reasons at all as to why there is no further slide? There are two basic reasons, the fi rst of which is general, and the second of which is specifi cally about marriage. First, certain arrangements, insofar as they would mimic the content of current marriage, are immoral, and their immorality is the reason to argue against them and against having the state sanction them with marriage. For example, if marrying my sister or my cat means having sex with her or it, then that would be immoral, and that is a good reason against it. If marrying my DVD collection means that it would inherit my money after I die, that too would be immoral (and maybe without much legal justifi cation) and thus a good reason against it. What it would mean for my DVD collection to inherit my money brings us to the second reason, which is that marriage is a contractual obligation between consenting adults to which the state is a third party—certainly this is how marriage is understood in today’s world. There is a good reason for this:
360 Marriage the potential marital partners must to be able to understand the contracts of marriage and to be able to enter into it. They must then have the capacity to provide informed, voluntary consent. 16 Cats, DVDs, and gardens are not the kind of thing that can consent to contracts (in the case of DVDs and gardens, they cannot consent to anything), so marriage should not be extended to them. We thus have two good reasons to stop the slippery slope at some point. We should not stop it for same-sex marriages, for trans-marriages, for bi-marriages, or for polyamorous marriages, but we should stop it for marrying our pets, our siblings, our children, and our inanimate possessions. In the next chapter we discuss the necessity of marriage. Study Questions 1. Meaning and reference are different: a concept can refer to something in the world and also have a meaning that might or might not refl ect that reference. “Water,” for example, refers to a specifi c chemical compound that might not be part of the meaning of the concept of “water.” The meaning of the concept of “tiger” might have to include a reference to its biological or ecological nature. What about the concept of “marriage”? 2. Is sex morally salient because it leads to reproduction? Is it morally salient for other reasons? And what does its moral saliency imply regarding how we should approach it? Are these implications about our sexual actions or our attitudes towards sex? For instance, suppose that sex is about reproduction. Does this mean we should refrain from having sex unless we intend to reproduce (action) or may we have sex solely for pleasure but knowing that it can lead to reproduction and so approach it with a specifi c frame of mind (attitude), such as humility or due respect? 3. Suppose that the New Natural Lawyers are correct and that the only morally correct sexual activity is what they call “marital” (remember that marital sexual activity depends not only on the form of sex, but also on the reasons why people engage in it). What implications does this have for the role of the state in marriage? Should the state refrain from recognizing “marriages” whose sexual acts cannot be marital (as understood by the New Natural Lawyers)? 4. Suppose that the concept of “marriage” does not have a fi xed or invariant reference. Does this mean that the concept lacks any reference at all, or does it refer, but to specifi c cultural and temporal practices, beliefs, and institutions? 5. Can you think of one or two purposes of marriage that have been crosscultural and cross-temporal? Would they rule in same-sex marriages, polygamous and polyamorous marriages, and incestuous marriages? In answering this question, keep in mind the differences between the purposes of marriage as an institution and the reasons why specifi c individuals marry. Also, keep in mind the distinction between the purposes of marriage and its by-products.
What Is Marriage? 361 6. In endnote 10, I mention that marriages to children, animals, and inanimate objects are ruled out by the fact that such entities cannot genuinely consent to the marriage. How does this point square with the fact that there were marriages to ghosts and to human parts, mentioned early on in this chapter? 7. Explain the differences between the purposes of or reasons for marriage (as an institution), the reasons why individual people marry, the reference(s) of the concept of “marriage,” and the meaning(s) of the concept of “marriage.” Try to explain how they interrelate to each other. 8. Is there such a thing as a shared social meaning of “marriage”? Is Ralph Wedgwood’s suggested meaning correct? Does it need additions or subtractions? If you agree with it in principle, do you think it gives a meaning of “marriage” particular to some cultures and times? Or is it more universal than that? 9. Are the ideals that Vernallis lists for marriage correct? Are there more ideals, such as that all the partners of the marriage have the same sexual orientation? (And how would Dembroff’s conception of “sexual orientation” affect this requirement? Indeed, how would it affect Vernallis’s entire view?) Are there fewer ideals than Vernallis thinks? Crucially, how do these ideals of marriage connect to Wedgwood’s (or any other) shared, social meaning of marriage? 10. Are there problems with monogamy (meaning marriage of two and only two people) and with polyamory that I have not raised in this chapter or emphasized enough? If you were to tally their problems and benefi ts, which comes out the winner? 11. Is there an argument to be made that polyamory is better suited to human beings? In answering this question, do so in regard to polyamory as referring to nonsexual exclusivity and as referring to non-romantic exclusivity. 12. Even if marriage is, as it is currently understood, a legal contract requiring the consent of the parties, can you think of possible marriages that, though they involve legal contracts, not all the parties to them need to consent? (Do we have such marriages already?) Would they include marriages to animals or to inanimate objects? Further Reading Books on the history and institution of marriage are many. But in addition to Coontz’s book, three others make for good reading: Cott (2000 ); Graff (1999 ); and Koppelman (2016 ). A brief but good introduction to the history of the gay movement’s advocacy of marriage is Chauncey (2004 ). A good philosophical overview of the philosophical issues is Graybosch (2006 ). In addition to the ones cited, some crucial works by the New Natural Lawyers are Finnis (1980 , 1991 , 1998 ); George (1999 ); and George and Elshtain (2006 ). For some replies to the New Natural Lawyers, see Biggar and Black (2000 ); Koppelman (2002 , 2008 ); and Macedo (1995 , including his “Reply to Critics”). See also Wardle,
362 Marriage Strasser, Duncan, and Coolidge (2003 ). For an interesting reply to the slipperyslope argument, see Donovan (2002 ). Two authors who offer liberal Christian views on sex are Gudorf (1994 ) and Jordan (2002 ). On the ethics of monogamy, polyamory, fi delity, and marital relationships, see also Bayles (1984 ); Cicovacki (1993 ); Clark (1998 ); Constantine and Constantine (1973 ); Easton and Liszt (1997 ); Emens (2004 ); Halwani (2003 , ch. 3); Marquis (2005 ); Piper (2016a, b) ; Russell (1970 , ch. 10); Taylor (1982 ); Wasserstrom (1998 ); and Wreen (1991 ). Notes 1. Compare this to what Kant says about wrong sexual acts ( 1963 , 169–171). 2. I assume that the state should not support immoral activities and should certainly not sanctify them with marriage. 3. The essay by Rusin (2017 ) is very useful on these issues. 4. To be clear, although I agree that sexual desire objectifi es, I think it objectifi es across the board, inside and outside marriage. Thus, insofar as a newlywed couple who believe in the tenets of New Natural Law, and who have waited to get married to have sex, have sex with lust, they objectify each other and each one objectifi es himself and herself. 5. It’s not clear why Newman believes it should be lifelong, given that rearing children to independence is not normally a lifelong project; I could fi nd no argument for this view in his essay, and the view of John Locke on which Newman relies does not extend the commitment beyond the children’s growing to independence. 6. We also should not agree with Newman that the essence of sex is reproduction. It might be that in the case of gay people we need to think of their sexual activity in more biologically refi ned ways: not as failed reproductive activity, but as successful activity for something else—a line of reasoning consistent with that of the New Natural Lawyers. The philosopher Kurt Blankschaen (2017 ) develops exactly this strategy in an (as of yet) unpublished paper. The idea is that while opposite-sex desire (or the sexual organs of heterosexuals) and same-sex desire (or the sexual organs of homosexuals) might be evaluated at a general level as performing the same function, at a lower level they can be evaluated as performing different functions, such that if the sexual organs of people who desire members of the same sex do not perform the same function that the sexual organs of people who desire members of the opposite sex function, this would not be a failure but a difference. 7. Slippery-slope arguments are not only about marriage. They can be about anything, and they all have the same basic structure: If we accept A , we would have to accept B (and C , and D , and . . . ). Since we should not accept B , then we should not accept A . 8. Kurtz’s explanation for how polyamory threatens monogamy is similar: “Once the principles of monogamous companionate marriage are breached, even for supposedly stable and committed sexual groups, the slide toward full-fl edged promiscuity is diffi cult to halt” ( 2013 , 148). My criticisms apply here, too. 9. The philosopher Robin Dembroff, in an engaging essay on sexual orientation, distinguishes between “sexual orientation” and “sexual druthers,” such that the latter refers to sexual preferences within the orbit of a specifi c orientation, such as a gay man’s sexual druthers for tall men, or a straight woman’s druthers for men with
What Is Marriage? 363 facial hair. Is necrophilia a sexual orientation or a sexual druther, such that a gay necrophile is attracted to only male human corpses? What about zoophilia? 10. In what follows I will not discuss whether, say, companionship allows for human beings marrying their pets, because marriage to animals, children, and inanimate things is ruled out by the fact that marriage is a legal contract of sorts, and partners to the marriage have to be able to genuinely consent to it. Thus, no purpose of marriage will rule in marriage to animals, children, and inanimate objects. 11. According to John Corvino (2005 , 523–525), it is debatable whether the New Natural Lawyers can rule out heterosexual polygamy and incest. 12. This is not to say that transgender people face no social and legal obstacles when it comes to marriage. See Cannon (2009 ) and Nunan (2008 ). 13. Vernallis is not clear why a triad of two bisexuals of the same gender and one straight person from the opposite gender would not satisfy the ideals of marriage: if two bisexual women married one straight man, there should be no diffi culty with the ideals, unless we require that another ideal of marriage be that all partners to the marriage be of the same sexual orientation, a requirement that does not seem to me to be obvious. 14. The essay has its share of problems: its conclusion that marriage is a form of private property is implausible, the essay often runs together marriage as a legal institution with monogamy as the practice of sexual exclusivity, and his criticisms sometimes confusingly target marriage as a universal institution and sometimes marriage as it exists in specifi c periods or places (see Palmer 1984 ). 15. McMurtry, I believe, sometimes confuses “monogamy” meaning “marriage to one person only at a time” with “sexual exclusivity.” 16. This is not to say that all, or even many, people who enter into marriage actually consent to its terms. Indeed, given the legal complications that surround marriage, only marriage lawyers who get married probably fully consent to what they are doing! Of course, to what extent we fully consent to anything is a question in its own right.
Outline of the Chapter This chapter explains and evaluates some of the main arguments against marriage as it currently is. Some call for its abolition while others call for its radical reform. Such reforms include having “minimal” marriage and having the option of temporary marriage. The chapter also discusses the issue of whether marriage remains marriage in light of these criticisms and proposals. Preliminaries In the debates about same-sex marriage, its critics were not only social conservatives or “traditionalists.” Many were queer and straight people who were opposed to the institution of marriage itself, thinking that it is a problematic institution in deep ways. Some of their objections were to its history and to how it was (and still is) a sexist institution that fostered gender roles. Others objected to its normalizing tendencies, and how, if gay and queer people entered into it, it would erode their diversity and non-traditional ways of life. Still others fi nd marriage to be an institution that abets evil. We will look at some of these arguments in this chapter in an attempt to see whether marriage is a morally wholesome institution, whether we should fi x it in deep ways, and whether doing so keeps it as marriage or turns it into something else. Before we do so, it is important to keep some points in mind. (1) Marriage, in today’s world, is a legal arrangement that involves the state as a third party. It confers a number of legal benefi ts and responsibilities on married couples, though what these are vary from country to country and even from jurisdiction to jurisdiction in the same country. In the United States, for example, Roberto and Aida, unless related by blood, are prior to marriage considered strangers to each other from the legal point of view. Once married, they are legally considered next-of-kin, which gives them all sorts of rights. They have, for example, rights to hospital visitation (including the right to make medical decisions on each other’s behalf were one of them to be incapable of doing so); to jail visitation; to inhabit places restricted to immediate family; 11 Is Marriage Necessary?
Is Marriage Necessary? 365 to health insurance (by enrolling in each other’s family insurance plans); to live in neighborhoods zoned only for “families”; to income tax advantages (from deductions, to credits, to improved rates, to exemptions); to inherit the other’s property upon death in the absence of a will; and to receive survivor’s benefi ts. If, say, Roberto were a United States citizen and Aida a citizen of Egypt, she attains the right to receive US permanent residency and eventually citizenship upon marrying Roberto, in a process that is faster than acquiring citizenship through, say, legal employment. In addition, neither Roberto nor Aida can be compelled by a court of law to testify against the other (unless child abuse is involved). Each also is empowered to make the decision of how the other is to be buried (in the absence of a will). Most crucially, and in some ways troublingly as we will see, although marriage creates the obligation for each spouse to support the other, it also gives each the right of access to the other person’s home, person, and property. These are some of the main rights that spouses acquire once married. 1 (2) These rights and obligations are of two kinds: those that the spouses have to each other and those that oblige third parties. Examples of the latter include health insurance from one of the spouses’ employer, hospital visitation rights, tax breaks from the government, and immigration benefi ts, such as permanent residency and citizenship. That is, once two people are married, then by law, the state, employers, and hospitals (to stick to the just-mentioned list of examples) are required to provide certain benefi ts to the married couple. Examples of the former include things such as inheriting each other’s property (including money) as the next of kin, but also of being expected to manage the property equitably and with the welfare of the spouse in mind, and making decisions on behalf of your spouse in case the spouse cannot, including vital decisions such as health decisions. The distinction between the benefi ts conferred upon the marriage from third parties and what the spouses legally owe each other is crucial, because many of the benefi ts conferred upon married couples can be conferred by the state on other relationships, and insofar as they are not, this provides a reason for thinking of marriage, or of the state, as unfair to people in those other relationships, as we will see in this chapter. So marriage is important for individuals given the benefi ts and rights it grants the spouses automatically upon marrying. These benefi ts and rights prove crucial in assessing arguments for and against marriage. (3) Marriage is also an important social institution: it signals to the rest of society that two people have vowed to commit themselves to each other, allowing the couple to openly and publicly celebrate this commitment. In most societies, marriage has come to be a big deal: people typically not only want it, but also aspire to it, and being married is considered one of the most crucial phases in one’s life, almost on a par with one’s birth and one’s death. Moreover, and despite the fact that the state is involved in marriage,
366 Marriage it is not clear that the social glorifi cation of marriage is due to, or only to, the state backing of marriage. This, too, will prove to be a crucial point. (4) Liberal political philosophers claim that in a liberal, pluralist society the state should not take sides with any substantial doctrine concerning how people ought to lead their lives (this is mirrored, roughly, in the doctrine of the separation of church and state in the United States). For example, the federal government should not enact federal laws (or allow state laws) favoring a Catholic way of life, a polygamous way of life, or one that requires a college education in a particular fi eld. The laws of the country should refl ect state neutrality with respect to these matters, and it should support only laws and principles that any person, no matter to what group he or she belongs or to what ideology he or she subscribes, can accept. For example, if primary education is something basic to everyone, then state support of institutions that provide primary education (and even the state requiring its citizens to obtain such education) would not be a violation of state neutrality (though what is to be taught might raise issues about the neutrality of the state). What has marriage got to do with this? Insofar as the state confers benefi ts on marital couples not conferred on other people, it might be accused of taking sides in how people ought to live their lives. It is basically sending the message to the people that “The state thinks that marriage is a good thing, and we will support those who participate in it by providing them with many benefi ts.” But since being married is not a basic, neutral good that people need to lead fulfi lling lives, but one that refl ects a specifi c ideology about, say, couple-hood and love, the state would not be neutral in supporting marriage. Thus, according to these critics, the state should not be in the business of marriage ( Garrett 2009 ; Metz 2010 ). This, too, will prove to be a crucial point. (5) Before we look at the criticisms of marriage, it is a good idea to briefly review the main arguments given in support of same-sex marriage, as we need them for the rest of the discussion. Influential arguments for same-sex marriage relied on twin notions: that gay people are morally equal to non-gay people (specifically, straight people), and that marriage is a bedrock, or at least crucial, institution of society, such that were some members of society denied entry into it, they would be treated as unequal, as undignified, or as “inessential” citizens. Were marriage, for example, to not be such an important institution in the eyes of society, then barring gay people from it and allowing them instead to have domestic partnerships would not be a slap in the face—it would not be an assault on the dignity of gay people. It would not tell them, in effect, “You’re not good enough to enter marriage.” 2 But given the legal and social importance of marriage, barring gay people from it was an assault on their equality and dignity.
Is Marriage Necessary? 367 The Massachusetts Supreme Judicial Court saw this early on when ruling, back in 2003, in favor of same-sex marriage (more accurately, ruling against prohibiting same-sex marriages). It gave reasons virtually identical to the above: “The Massachusetts Constitution affi rms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth [of Massachusetts]. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples” (quoted in Chauncey 2004 , 134–135). The Supreme Court of Massachusetts declared that no good reason has been offered why gay couples should not have the right to marry. Without good reasons, denying them this right is tantamount to regarding them as second-class citizens. Why second-class citizens, as opposed to just different types of citizens? Precisely because marriage is considered to be a crucial, bedrock institution essential to society. Denying gay people marriage is basically telling them, “You’re not good enough for marriage.” Indeed, according to the philosopher Cheshire Calhoun, those in Congress who defended marriage as a heterosexual institution seemed to think that if the state recognizes same-sex marriage, marriage would become a contract between two individuals, on a par with other private, individual contracts, implying that marriage is no longer a bedrock institution. Since marriage is not your everyday, personal contract, same-sex marriages could not be allowed ( Calhoun 2000 , 126). Thus, to Calhoun, it is crucial to fi ght for the right to same-sex marriages because prohibitions on same-sex marriage send the message that gay people are not fi t to be citizens; they, in effect, displace gay people from civil society, making them “inessential” citizens ( Calhoun 2000 , 127). The above arguments rely crucially on the idea that marriage is an important and a good institution or, at the very least, not a bad one. Marriage has to be both for the arguments to go through: if it were not an important institution, barring some segments of society from it would not be a big deal (though it would be some deal because there is no reason why, say, gay people should be barred from any social institution, no matter how insignifi cant it is). But marriage also has to be a basically good institution: if it were not, if it were a bad institution or even neither good nor bad, it would be diffi cult to see why gay people should have insisted on having the option to join it. Let us, then, begin the discussion of arguments against marriage to see what to make of them. Arguments Against Marriage The Unjustness of Marriage Argument The philosopher Claudia Card begins by drawing attention to the fact that issues surrounding gay marriage admit of two questions. The fi rst is whether the state treats gay people inequitably in not extending to them the right to marry. The second is whether gay people should pursue the right to marry ( 1997 , 320). She
368 Marriage answers the fi rst question affi rmatively, the second negatively. She gives the example of a mythical society in which men but not women have the right to own slaves. In this society, the law surely treats women inequitably in not giving them the same right, but the right in question is not one that women should pursue. The reason is obvious: the right is immoral. Card makes a similar point about the right to marriage, namely, just because gay people are denied a legal right, it does not mean that they should pursue the right, because the right to marry might be immoral (Card does not claim that the institution of marriage is similar to that of slavery). Indeed, to Card the right to marry is immoral. Card lists four problems with marriage. The fi rst is that “employers and others (such as units of government) often make available only to legally married couples benefi ts that anyone could be presumed to want, married or not, such as affordable health and dental insurance, the right to live in attractive residential areas, visitation rights in relation to signifi cant others and so forth” ( 1997 , 322). This problem would not be fi xed by the state and other institutions providing such benefi ts to same-sex couples by allowing them to marry, because the problem is state discrimination between married couples, whether same or opposite sex couples, and non-married couples. As Card puts the point in another essay, “Thus legal regulation of same-sex marriage in the U.S. at present supports a profoundly unjust distribution of benefi ts” (2013, 178). Unsolved, this problem leads to another: because these benefi ts are usually vital and basic, they often provide an “ulterior motive for turning a lover relationship into a marriage—even for pretending to care for someone, deceiving oneself as well as others” ( 1997 , 324). The idea is that as marriages are currently structured, they provide many spouses with the wrong reasons to marry (e.g., economic and healthcare benefi ts), and not always the right reasons (e.g., love or commitment). However, and as Card recognizes ( 1997 , 322), this problem with marriage can in principle be solved by eliminating the discrimination between married and non-married people. If this happens, all people would have access to these vital benefi ts, thereby eliminating both the unjust distribution of benefi ts and some wrong reasons for marrying. Put slightly differently, the benefi ts to marriage from third parties (the employer, the state, hospitals, etc.), can be detached from marriage. This does not mean that married couples would no longer be entitled to them, but that other people would be. For example, there is no reason why the state cannot enact laws that give visitation rights to close friends. We will discuss this in more detail further below. The second problem with marriage is divorce. Even though divorce procedures and regulations have been greatly reformed recently, “[T]he consequences of divorce can be so diffi cult that many who should divorce do not,” and if one spouse can sue the other for money and post-divorce payments, then spouses are sometimes motivated not to divorce, thus remaining in “emotionally disastrous unions” ( 1997 , 322–323). Furthermore, “No-fault divorce in many states means only that spouses who mutually agree are no longer guilty of the crime of collusion,” a relief not suffi cient “to allow a spouse to terminate a marriage
Is Marriage Necessary? 369 unilaterally without showing grounds acceptable to the state.” She adds, “As long as the state retains a divorce-granting power that prevents unilateral dissolution at will . . . marriage is a trap for abused partners and their children” (2013, 179). This is a problem because such marriages take their emotional and sometimes physical toll on the spouses, and because they prohibit the spouses from developing other satisfying love relationships ( 1997 , 324). Again, however, this is not a decisive objection to marriage because divorce laws can be reformed even further (I return to this issue below). The third problem is that marriage is monogamous, not in the sense that adultery (or open relationships) is illegal (in many places it is not and in many others the laws are not enforced), but in the sense that it is one spouse at a time . If x is married to y , x (or y ) cannot also be married at the same time to z , and x , y , and z cannot all be married to each other. Card states that this issue should be “seriously troublesome to many lesbians” because many “have more than one long-term intimate relationship during the same time period” ( 1997 , 323). Furthermore, even though this reason against marriage can be remedied in principle by allowing multiple, simultaneous marriages, it is easier said than done because the remedy “would have economic implications that I have yet to see anyone explore” ( 1997 , 323). Although marriage can be expanded, as we have seen, to allow for multiple spouses at a time—there is no conceptual barrier to this—Card is absolutely correct that we have yet to trace out the practical, fi nancial, social and other consequences of allowing group marriages. These might prove a serious obstacle, though whether an insurmountable one is unclear. The fourth and decisive problem with marriage is “that the legal rights of access that married partners have to each other’s persons, property, and lives make it all but impossible for a spouse to defend herself (or himself), or to be protected against torture, rape, battery, stalking, mayhem, or murder by the other spouse. . . . Legal marriage thus enlists state support for conditions conducive to murder and mayhem” ( 1997 , 323). The issue is not that most or even many marriages are violent, but that when they are, the law makes it very diffi cult for abused spouses to protect themselves. It even abets the abusive spouses. Marriage, in short, makes spouses give up their individual privacy in a problematic way: should something go wrong, each spouse can rely on the law to access information, property, and so on belonging to the other spouse. Card is not against intimacy or intimate relationships in which partners do give up much of their privacy, but against the state’s sanction of rights of access. As she puts it, non-married couples who cohabit “may seem to give up similar privacy. Yet, without marriage, it is possible to take one’s life back without encountering the law as an obstacle” ( 1997 , 328–329). Card mentions, but does not elaborate, that such legal rights of access to each other’s person and property are essential to marriage, such that without them it is doubtful whether what remains would be marriage ( 1997 , 329). She is certainly right about the following point: we should not rashly claim that the institution of marriage would remain basically unchanged if such rights of
370 Marriage access and cohabitation were no longer part of it. As we have seen, spouses have rights against and responsibilities to each other. If rights of access to each other’s person and home are not part of such rights, there might not be much else left, according to Card’s reasoning. And the state’s role would be to enforce such rights and responsibilities. That is, if the state is to play any role in marriage, this one would be one of its roles. Card’s point about battery and abuse in marriage is essential: when they occur, it is diffi cult for spouses to easily opt out of their bad marriages owing to the state’s role. Given that the state’s role is obstructive, she states, “My ideal is that the law not defi ne or in any way regulate durable intimate unions between freely consenting adults” (2013, 180). To Card, while denying benefi ts to same-sex partners is an injustice, marriage as an institution is an evil . Evils are “culpable wrongs that foreseeably produce intolerable harms” (2013, 183). Legal marriage is “an evil, to the extent that it facilitates the infl iction and cover-up of reasonably foreseeable intolerable harm to those unlucky enough to fi nd themselves trapped with violently abusive spouses. What makes marriage an evil when it is not merely an injustice is that it hinders an abused spouse from exiting an abusive relationship before intolerable harm is done” (2013, 184). But Card’s claim may be overblown. If marriage is a wrong and if it leads to intolerable harm, then it would be a culpable wrong, because we know about its harms and we (or some people, anyway) are in a position to abolish it. But the intolerable harm of which Card speaks can be avoided by reforming the laws of marriage, including divorce laws and personal access laws. The laws can be (and are in some areas) such that a spouse can issue an immediate injunction against her spouse were the latter to be accused of abuse. Another option is to make unilateral divorce universal: the marriage can be dissolved at the will of one of the spouses (Card recognizes that some states have adopted unilateral divorce). The divorcing spouse does not have to prove , in the face of the other spouse’s unwillingness to dissolve it, that the marriage needs to or should be dissolved. Or, if we fear that making divorce very easy would send the message that society does not take marriage seriously, there could be laws that require the divorcing spouse to provide adequate grounds for divorce as long as he or she is able to be at a safe distance from the other spouse should abuse be a factor in the divorce). If divorce laws can be thus reformed, marriage would no longer be an evil. It might still be problematic for the state to have such an intimate involvement in a couple’s life, but it would be a far cry from being an evil. To Card, however, even though unilateral divorce goes a long way in allowing abused spouses to more easily exit bad marriages, it may not do much to help the children of those marriages: “The marriage may be over, but there may still be a relationship giving an abuser a dangerous legal right of access that would never have existed without a history of marriage.” Even if unilateral divorce removes the obstacle of having to prove that abuse exists for one spouse to be able to divorce another (often a diffi cult and emotionally taxing
Is Marriage Necessary? 371 task), “it may still be necessary to establish abuse to prevent an abuser who is a legal guardian from retaining a legal right of access to the children,” and through them to the abused, now-divorced spouse, who wanted to get away from the abuser in the fi rst place (2013, 185). Card’s point about the limited benefi ts of unilateral divorce is crucial but defective. Even if the state does not regulate intimate relationships, it is hard to see how the state cannot but interfere in those relationships that involve children, because it has a justifi ed interest in the well-being of children and some laws will have to exist to ensure their well-being. In the event of a couple’s breakup, these laws, or a subset of them, will have to apply to how the children will relate to their parents after their parents’ breakup. If there was spousal abuse, the abused spouse will still have to prove it if the state is not to allow (or not to allow unsupervised) the abusive parent’s legal access to the children. The point is that the abolition of marriage would in all likelihood not get around the state’s role in monitoring the lives and future of the children of broken-up intimate unions. This is not just a factual point or a prediction of the future course of the law. It is also a normative point: the state has good reasons to ensure that children are well brought up and looked after decently. Thus, even if the state should not act paternalistically and enact laws regarding the intimate relationship of the parents, it should do so regarding the welfare of children. So even though unilateral divorce does not help when it comes to the children of abusive relationships, abolishing marriage is not going to either, and it is questionable whether it should. In addition, if the state provides benefi ts for all its citizens, regardless of their marital status, marriage as an institution would not be complicit in an overall unjust distribution of benefi ts, and individuals would not need to marry just to attain those benefi ts. Thus, making unilateral divorce legal and ensuring a just distribution of benefi ts would, I contend, disarm much of the power of Card’s criticisms against marriage. Intimate state involvement may still be a problem, but it would not be an evil, as Card contends. So marriage as an institution would not be a bad one if it is reformed to allow for unilateral divorce and if healthcare is reformed so that all people are able to receive health benefi ts, regardless of their marital status, thus eliminating the need for some couples to marry just so that they can attain these health benefi ts. If this happens, marriage would not be a trap for unlucky couples. Certainly, it would not be an evil institution. However, while all of the above is true, we are left with one crucial question: If marriage is essentially a legal issue, and if, to make marriage morally acceptable, the laws have to be complex, why have marriage at all? Why not just let people form their own arrangements as they see fi t? Indeed, even if the laws of marriage are made simple, this would not change the above question in its basics: why have marriage if it is going to involve the interference of the state? The question is given further urgency when we remember that historically speaking the state was not always involved in marriage, and when we remember that it is an institution that might socially, not only legally,
372 Marriage discriminate against those who are not married. Let us address one argument that argues for this claim. The Assimilation and Cultural Injustice Arguments The lawyer Paula Ettelbrick gives another reason against same-sex marriage, one that can be applied to other forms of marriage (e.g., polyamorous marriage), based on the idea of assimilation. She states that marriage “will not liberate us as lesbians and gay men. In fact, it will constrain us, make us more invisible, force our assimilation into the mainstream, and undermine the goals of gay liberation” ( 1997 , 119). This is because “being queer is more than setting up house, sleeping with a person of the same gender, and seeking state approval for doing so. It is an identity, a culture with many variations. . . . Being queer means pushing the parameters of sex, sexuality, and family, and in the process transforming the very fabric of society” ( Ettelbrick 1997 , 120). This argument against same-sex marriage relies on the idea that such marriages would assimilate gay people into mainstream society, thus eroding their unique identities and unwittingly undermining any goals to transform society. 3 The argument can be extended to other non-traditional marriages, such as group ones or bi-marriages. But there are two reasons why this is not a serious worry. First, legalizing same-sex marriages does not mean that gay and lesbian couples or that polyamorous groups have to marry each other; it merely gives them the option, much as straight couples have the option of marrying, though some choose to not exercise it. Thus many such people may choose not to marry, in which case they won’t be assimilated into mainstream society (whatever that means). Second, it is unclear that same-sex couples and others who do marry will assimilate, because they might conduct their marriages in new and interesting ways, thus changing marriage and our understanding of it, which in turn might change the fabric of society. Indeed, heterosexual couples have themselves not assimilated into marriage in fi xed, unchanging ways. As Calhoun puts it, “[E]volution in both marriage law and marital and parenting practices has been a result of heterosexuals’ resistance to the legal and social conception of traditional marriage. . . . If having the right to marry has not prevented heterosexuals from challenging legal and social conceptions of marriage, there is no reason to suppose that gays and lesbians will cease thinking critically about marital norms once granted a right to marry” ( Calhoun 2000 , 113). This sounds reasonable. Indeed, if society allows bi-marriages and group marriages, this would have a radical effect on how marriage is understood, though whether they would improve marriage or lead to its erosion is anyone’s guess. Thus, the assimilationist argument is unconvincing when it comes to same-sex couples, and it is even more unconvincing if we think of other new types of marriages. The queer theorist Michael Warner offers the second argument ( 1999 ), which I call the “Cultural Injustice Argument.” 4 Warner correctly notes that the right to marry is not a private choice, with no consequences for others ( 1999 , 95–96). Marriage is a powerful cultural, social, and legal institution,
Is Marriage Necessary? 373 with normative consequences for the non-married. People who are married have a privileged status in society, and marriage itself is a normative institution, a standard by which other people’s sexual lives are negatively compared ( 1999 , 82). Warner states, The impoverished vocabulary of straight culture tells us that people should be either husbands and wives or (nonsexual) friends. Marriage marks that line. It is not the way most queers live. If there is such a thing as a gay way of life, it consists in these relations, a welter of intimacies outside the framework of professions and institutions and ordinary social obligations. Straight culture has much to learn from it, and in many ways has already begun to learn from it. Queers should be insisting on teaching these lessons. Instead, the marriage issue, as currently framed, seems to be a way of denying recognition to these relations, of streamlining queer relations into the much less troubling division of couples from friends. ( Warner 1999 , 116) What are these relations of which Warner speaks? “Between tricks and lovers and exes and friends and fuckbuddies and bar friends and bar friends’ tricks and tricks’ bar friends and gal pals and companions ‘in the life,’ queers have an astonishing range of intimacies. Most have no labels. Most receive no public recognition. Many of these relations are diffi cult because the rules have to be invented as we go along. . . . Who among us would give them up?” ( Warner 1999 , 116). The argument seems to be that because marriage is a normative institution, demarcating the line between good and bad sexual relationships, initiating same-sex marriage would have the result of only recognizing a segment of the myriad types of gay relationships. The rest would still be confi ned to the “bad” or “not-so-good” type of relationship (hence my calling the argument the “cultural injustice” argument). Note three crucial things about this argument’s logic. First, even if marriage is legally reformed and even if universal healthcare extends to everyone, it still remains a powerful symbolic and normative institution. Its existence would continue to imply that non-marital relationships are second-tier at best. Second, even though society recognizes (nonsexual) friendships, it does not accord them the same elevated status as marriage, so even if all the non-marital gay relationships Warner mentions were to be considered forms of friendship, they would still be second-tier. Third, the “cultural injustice” argument applies to both gay relationships and straight relationships that do not conform to society’s requirements of desiring people to be either married or nonsexual friends. If convincing, Warner’s argument offers a strong reason to not only give up the pursuit of the right for same-sex couples to marry but to also abolish marriage altogether. For even if marriage is legally reformed and its benefi ts extended to single people and non-married couples, in its elevated social status it would continue to relegate to second-best status all those other non-marital relationships. 5 If these other non-marital relationships should not be considered
374 Marriage second-best, and if marriage has no crucial role to play, it would be a merely socially glorifi ed institution that plays a culturally unjust and invidious role. Given all the other problems that go with it, we might as well just abolish it. I am, however, a little dubious about the idea that marriage relegates other relationships to a lower status, not because marriage does not have a superior status in most societies or because some relationships are not seen by society as not good enough or beyond the pale, but mainly because the claim is unclear. First, from the mere fact that marriage occupies an elevated status in society, it does not follow that “it is designed both to reward those inside it and to discipline those outside it” ( Warner 1999 , 89). The elevated status of marriage says nothing about whether it is designed to “discipline” other relationships, whether this is its purpose, or whether it actually achieves its purpose. The language of “disciplining” and similar concepts (e.g., “regulating”) is also unclear: How exactly does marriage discipline these other relationships? Second, as a claim about how particular people view particular relationships, it is false. Some parents, for example, fully realize that the heterosexual marriage of one of their sons is an utter disaster, while the gay, non-legal marital relationship of their other son is wonderful. To these parents, the gay relationship may be more valuable than the heterosexual marriage of their other son. Third, though Warner is correct that many gay people (and, we may add, straight people) have non-traditional relationships, it is an open question as to what extent they have the depth and commitment that substantive relationships— whether marital or non-marital—have. Why my relationship with my bar friends should have an elevated status in the eyes of society, should be deemed worthy of recognition of sorts, or should be on the same level as marriage, is not a question with an obvious positive answer. The fact, in short, that gay people have multiple and diverse forms of relationships says nothing, in and of itself, about the desirability of these relationships and what status they should occupy in society. Were these relationships to be long-term deeply caring ones, they might be included under the idea of minimal marriage, which we will discuss below, given that that idea is to allow anyone in such caring relationships to marry. Crucial to understanding my criticisms is the distinction between marriage as a legal institution and marriage as a social institution. Warner is absolutely right that marriage as a social institution has an elevated status above other relationships. Imagine two couples living their lives in exactly the same ways (e.g., each partner to the couple has a job, each couple lives together, each couple has two dogs, etc.) but such that one couple is married and the other is not. The couple who is married has a different status, socially speaking. This is not to say that the non-married couple is looked down upon, but it is to say that the married couple is looked up upon (in that respect). When it comes to relationships, marriages are seen to be the deepest form of commitment (a fact itself refl ected in the laws of marriage). This is seen in the most basic of ways, such as many parents’ insistent question to a longtime but not-yet-married couple, “When are you going to get married?”
Is Marriage Necessary? 375 However, this does not mean that state-sanctioned marriage is culpable for this state of affairs. The fact that the state backs marriage is not the cause for the social elevation of marriage, and it is not necessary for it. Even if the state withdraws from marriage and leaves couples to form their own contracts, marriage might still be seen as the highest pinnacle of relationships. This is easily seen in countries with no civil marriage and only religious marriage. Even though the state does not play as big a role in these marriages, marriage is still considered of supreme value. Thus, the cultural injustice argument does not settle the question of whether marriage should continue to exist as a legal institution or whether it should be abolished. If there are important reasons for the state to regulate the kind of commitments found in marriage, then we have to accept marriage and try to combat the cultural injustices that result from it, one way being to ensure that the state does not engage in propaganda in support of marriage, and another being the creation and support of cultural institutions that valorize various other types of intimate relationships, to give two suggestions. Reforming Marriage Minimal Marriage The philosopher Elizabeth Brake has provided an infl uential criticism and reconceptualization of marriage in her 2012 book Minimizing Marriage . The title refers to the idea of minimal marriage, which is inspired by Nozick’s idea of the minimal state ( 2012 , 157): a conception of marriage with minimally restrictive marital laws. Before we get to this conception of marriage, I should explain what the main problem with marriage is as it currently exists, according to Brake. Brake raises a number of diffi culties with marriage (especially before samesex marriage became legal in the United States). One crucial issue is the state’s taking sides on what a good life is. That is, if marriage excludes same-sex couples, it will be committed to a particular view of what a relationship should be, namely, between a man and a woman (heteronormativity). And if marriage includes same-sex couples but continues to exclude intimate yet non-romantic or nonsexual relationships, it will also be committed to a particular view of how caring relationships should be, namely, ones based on romantic love (Brake calls it “amanormativity”). And if marriage continues to exclude larger care units—say, three friends in a mutually supporting care relationship—from marrying each other, it will also be committed to a particular view of what marriage should be, namely between two and only two people (let’s call it “duonormativity”). Thus, if the state continues to support only traditional forms of marriage, it would be complicit in supporting a particular way of life, thus violating its liberal credentials to neutrality. According to Brake, given that care is a primary good needed for living well, caring relationships are basic relationships and thus require the support
376 Marriage of the state. A politically neutral, and therefore justifi ed, conception of marriage would be one that supported all caring relationships, whether same-sex or opposite sex, romantic or non-romantic, sexual or nonsexual, two-party or more ( 2012 , ch. 7, 2017b ), which would include some of the relationships that Warner emphasizes and Card’s multiple lesbian relationships. Of course, because marriage is a contract of sorts, the caring relationships will have to satisfy certain criteria, such as being between adults who can understand the contract and can therefore genuinely consent to it (thus ruling out marriage between, say, a man and his pet), and who know each other, have direct contact with each other, and have a history between them ( 2012 , 160), so as to have a caring relationship between them and be able to establish its existence (if, say, this is needed for legal purposes). Caring relationships, by which Brake basically means “attitudinal caring relationships, defi ned by mutual concern for the other’s welfare” ( 2017b , 315), are primary goods in society. Individuals need care to grow up to being healthy, functioning individuals. As primary goods, caring relationships undergird any religious, moral, or political outlook or ideology. Whether one is Muslim, single, communist, and so on, one needs care to live well. Like having basic freedom and being free from chronic pain, care is something everyone needs to live well. “All caring relationships equally deserve support, regardless of their romantic or sexual affi liation” ( 2017b , 315). How do the benefi ts and laws of marriage function in this conception of marriage? According to Brake, “minimal marriage would consist only in rights that recognize (e.g., status designation for third parties, burial rights, bereavement leave) and support (e.g., immigration rights, care-taking leave) caring relationships . . . . [These are] juridical rights designed to support caring relationships. They protect such relationships through entitlements facilitating relationship maintenance and by giving their members a way to signal to the institutions shaping their lives (employers, government, hospitals, states, and so on) which relationships should receive these protections” ( 2012 , 160). The rights would have to be specifi ed depending on the context and the rationale, so they cannot be stated abstractly (2012, 161), but obvious candidates are “eligibility for spousal immigration, employment and relocation assistance, and preferential hiring (currently offered to US military and civil service spouses and by some private employers), residency (where relevant for in-state tuition, etc.), hospital and prison visiting rights, bereavement or spousal care leave, burial with one’s spouse in a veteran’s cemetery, spousal immunity from testifying, and status designation for the purpose of third parties offering other benefi ts (such as employment incentives or family rates)” ( 2012 , 161). For example, two friends in a long-distance caring relationship might decide to live together to facilitate the caring relationship. If they marry, they would be entitled to relocation assistance. If two friends were married to each other and one passes away, the other would be entitled to bereavement leave. A crucial point to add is that minimal marriage does not require that spouses accept these rights in a package—they are not all or nothing. People would be free to
Is Marriage Necessary? 377 disaggregate them to support numerous relationships. Brake gives the example of Rose and Octavian, who live together. They decide to marry to facilitate their relationship, and they bundle together benefi ts surrounding jointly owned property, bank accounts, home insurance, and other aspects of their life needed to maintain their joint domicile (note that they will dissolve the marriage when Octavian relocates to another city in fi ve years, thereby making their marriage temporary from the start—see below). Rose also decides to marry her only living relative, Aunt Alice, to provide her with health benefi ts. She also marries Marcel who is the only person who “truly understands her,” thereby providing him with rights to make life-or-death decisions on Rose’s behalf ( 2012 , 166). In this way, minimal marriage allows someone to disaggregate its rights and benefi ts and distribute them among a number of partners. Brake’s suggestion for minimizing marriage is very interesting. In one stroke, she provides a good reason why a liberal state should not be supporting marriage the way it currently is given that it is based on non-neutral views of what marriage is. Yet she also insists on state support for caring relationships because they are basic goods that any person needs to live well. Caring relationships thus provide seemingly politically and morally neutral bases for state support; everyone is invested in caring, no matter who one is. In addition, the suggestion, if it becomes a reality, would help with the social issues of marriage by extending the institution to many relationships currently socially marginalized. It would send the message to intimate friends and to amatory groups that their relationships are also valuable and worthy of state protection and social recognition. Brake’s view does, however, face some diffi culties. Let’s look into them. (1) The fi rst problem, which I will set aside but is nonetheless not only worth raising but constantly keeping in mind, has to do with practical questions in determining eligibility for marriage. Given that marriage would be more of a fi nancial burden on the state than it currently is were Brake’s proposal to become a reality (as it will expand and include more marriages), especially since Brake’s proposal includes (as we shall see) the essential component of the ability to disaggregate marriages benefi ts, it might be necessary to prove that the people who intend to marry are indeed in a durable, caring relationship. This might involve investigations and the requirement of providing documents similar to what immigration offi cials require when investigating whether the marriage between a citizen and a non-citizen is bona fi de. This sort of investigation, in the case of minimal marriage, might have to be extended to all people wishing to enter into marriage, citizens or non-citizens, whether the basis of marriage is romantic love or nonromantic care. This would surely involve tremendous state resources. Establishing durability (or history of the relationship) is important because otherwise the ease of entry into and exit from marriage might prove a serious burden on the state. Related to this is the question of divorce and how diffi cult it will be. Unilateral divorce might be a solution, but even
378 Marriage here we need to think carefully about group marriages and what would happen to them when one member (or more) desires to exit the marriage. Would the whole marriage fall apart? Would the rest have to remarry each other? What if some members’ desire to stay in the marriage is contingent on the presence of other members’ continued spousal presence? (“I will stay married to the whole lot of you as long as Paul stays in this marriage. If he leaves, out I go.”) What would such rearrangements of a group marriage imply for the rights and benefi ts surrounding these marriages? My point is not that such problems are insurmountable but that they need to be carefully thought through, as they do raise potentially serious hurdles. Card’s statement that such marriages “would have economic implications that I have yet to see anyone explore” ( 1997 , 323) should haunt us. The laws of marriage (including divorce) need to strike a balance between making marriage too easy and thereby risking making it a not-sospecial status (which might be okay; see below) and making marriage too diffi cult such that it becomes a disincentive for people to marry, thereby defeating the very point of supporting the basic good of care. (2) A second objection raises the question of why the partners to the marriage do not draw up their own contracts, especially if these benefi ts and obligations are going to be extended to caring relationships in general, and if the parties to them can pick and choose which entitlements to extend to which relationships. Why should the state be involved at all? This is the worry that was echoed by members of Congress who were defending traditional marriage (see Calhoun 2000 ). The idea of marriage being a matter of private contracts has been proposed before by a few theorists, especially those who are in favor of abolishing marriage altogether (see Metz 2010 for discussion). But there are reasons to believe that private contracts between the parties are not suffi cient. One reason is their sheer cost: anyone who has employed the services of a lawyer in this country (and most others) knows quite well how expensive they can be. Of course, minimal marriage, as Brake mentions numerous times, is meant for a more ideal society (how we transition there is a crucial question in itself), so maybe in that ideal society lawyers’ fees would not be so high. Perhaps. But until the ideal society arrives, and until lawyers lower their fees signifi cantly (the latter is probably harder to visualize than the former), the expense of private contracts will be a serious problem for those who are not rich. A second, more important, problem with private contracts is that they do not oblige third parties, as the philosopher Clare Chambers points out. 5 For example, if I marry Rafael, and Rafael lives in, say, Venezuela, no private contract between the two of us is going to compel the United States government to grant him a permanent residency to enter the country. Even if he is in the United States, if he gets sick and I need to visit him in the hospital, that hospital might not respect, and might not be legally required
Is Marriage Necessary? 379 to respect, my wish to be at his side, especially if the hospital is in a jurisdiction outside the one where he and I drew up the contract. Providing him with health benefi ts might be another sticking issue and would depend on the regulations of my employment. So while private contracts might help with our obligations to and rights against each other (e.g., making life-and-death decision about withdrawing medical care—and even here, by the way, private contracts might be contested by the family of the sick spouse and held up in the courts indefi nitely), they are inapt when it comes to third party obligations. Moreover, if the marital spouses have children, their individual contracts would not have anything to say about the rights and entitlements of their children. Thus, the state is needed to oblige third parties to act when it comes to certain crucial aspects of the contracts and to legally address the rights and the welfare of related parties that the contracts do not, and cannot, address. ( Brake 2012 , 181; Chambers 2016 ). Moreover, the terms of the private contracts might be problematic in themselves, regardless of their limitations when it comes to third parties ( Chambers 2016 ). For example, if two spouses with unequal power draw up contracts, the spouse with more power or infl uence might have a stronger say in the terms of the contract, which means that the contract will itself have unequal terms. This is, by the way, connected to the question of expense: imagine two people drawing up such a contract but one of them cannot afford a lawyer. The other spouse, with no other option, has to pay the fees for both of their lawyers. The spouse who is poor might feel that he or she should not be assertive when it comes to what goes into the contract and might instruct his or her lawyer to just go along with what the other spouse’s lawyer decides. Moreover, unless counseled by a good lawyer, potential spouses drawing up contracts might neglect to include terms that are crucial or might neglect to look after their own individual interests, especially since being in love often makes potential marital partners romanticize their future and either forget these issues or shy away from them. They may not want to think what they ought to do in case, say, one of them becomes fi nancially dependent on the other. The state would need to intervene to enforce certain parts of the contracts, to correct others, and to fi ll in yet others ( Chambers 2016 , 60). As crucially, the state “needs principles and limits of contract law, setting out what makes a valid contract and the recourse for breach” ( Chambers 2016 , 60). Of course, we need the state to enforce these contracts, though how they are to be enforced when their clauses pertain to highly personal matters and issues relating to the day-to-day functioning of a relationship is a problem in its own right ( Chambers 2016 ). Thus, the role of the state in individually drawn-up marital contracts cannot be avoided. Chambers favors a compromise: [T]he state should put in place default directives governing personal relationships but these should be piecemeal in character, referring only to
380 Marriage particular aspects of a relationship and with no assumption that multiple aspects should all be located in one primary relationship. It should allow contracts that deviate from these default directives only if those contracts are themselves compatible with justice, in both procedure and content, and only if those contracts are legally enforceable without violating other considerations of justice. It therefore combines the benefi cial diversity, adaptability, and specifi city of contract with the ability of directive to ensure equality and limit vulnerability. ( 2016 , 77) What Chambers is suggesting is that the state’s role is to provide default directives to ensure that justice and equality are not sacrifi ced in the drawing up of individual contracts but such that these directives are piecemeal and do not come in a bundle about every aspect of the relationship. Individuals can add or modify these directives to suit their own particular cases as long as the modifi cations abide by basic requirements of justice and equality. Chambers’s view is very plausible. It allows for the liberty often desired by potential marital spouses while providing a crucial role for the state, a role that cannot be fully eliminated anyway. Since Chambers herself, however, is in favor of abolishing marriage ( 2013 ), the question is whether her view is compatible with minimal marriage. I see no reason why it is not. The state, for example, could insist that certain obligations are required of all spouses (these might be part of the directives that marital spouses would not be able to change given that they exist to satisfy the requirements of justice and equality), and that all spouses are entitled to certain rights. Since minimal marriage does not require that the rights and obligations of marriage must be accepted in their entirety and for one relationship at a time, it has the type of built-in fl exibility that Chambers’s proposal piecemeal favors. The disagreement between Brake’s view of minimal marriage and Chambers’s view would likely center on two areas: (a) what would count as basic, unmodifi able directives that are part of the general rights, obligations, and benefi ts to all married partners; and (b) the retention of the name “marriage” to refer to minimal marriage. Although (a) requires much more space and expertise than I can handle, some of the issues in (b) will be tackled in what follows. 6 (3) A third, more serious, worry for minimal marriage is that it is not marriage. This objection might be based on a shared social meaning of “marriage,” à la Wedgwood. One might argue that by including group marriages and non-romantic, nonsexual relationships in the ambit of marriage, it seriously changes the meaning of “marriage.” Saying to someone, “I’m married” not only is impaired communication, it conveys virtually no information whatsoever (even when a couple says, “We’re married” would not convey much by way of information): no information about
Is Marriage Necessary? 381 the gender and number of the spouses, about the nature of the relationship (romantic or non-romantic, sexual or nonsexual), or about how the rights and responsibilities are bundled together in that particular instance of marriage. Indeed, even if we think that impaired communication is not a big deal, Brake’s proposal does change the meaning of “marriage”—specifi cally, it guts out the idea of sexual intimacy from marriage (it does not seem to me that it would gut out the other two features). In reply, a Brake-an can argue that the concept of “marriage,” given that it is devoid of any essential references (devoid of any references to fi xed characteristics of reality), is an ameliorative concept, to borrow a term from the philosopher Sally Haslanger. As an ameliorative concept, we are to some extent free to revise it depending on its point: What is the point of having marriage? What concept would best serve its purposes? ( Haslanger 2006 , 95). This is what Brake in effect does when arguing for her conclusions about caring relationships: the point of marriage should be to support caring relationships (2017b, 308). Indeed—the reply might continue—the one feature of the social meaning of “marriage” favored by Wedgwood—sexual intimacy—that minimal marriage would change is the one feature unsupported by the idea of state neutrality. Why should the state support relationships that contain sexual intimacy? While spousal cooperation and commitment seem to justify state support, the sexual part does not. If “sexual intimacy” is indeed part of the meaning of “marriage,” and if we insist on state support for marriage, we are then recruiting the state in a non-neutral project, which might violate its liberal aspirations. Given that the concept of “marriage” is ameliorative, we are free, even obligated, to change its meaning to get rid of the sexual intimacy component. And once we do so, we open the concept to all sorts of committed relationships of the sort that Brake favors. The advocate of the original objection might say by way of rejoinder that, ameliorative or not, minimal marriage is a major reconceptualization of marriage. This can be seen by the fact that most people want to marry and they want to marry because “marriage” means to them a more or less specifi c thing. This point is not a prediction about how many will continue to want to marry were minimal marriage to become a reality but a point about how society understands “marriage” to refer to more or less specifi c things. Granted that the sexual intimacy component does not justifi ably call for state support, it does support a kind of intimacy found in what we usually call marriages not found in the type of relationships with which Brake is (also) concerned. If the state extends the same marital benefi ts to other caring relationships, we have a reason to keep the name “marriage” to what we currently refer to by “marriage,” as long as we also include same-sex and even group marriages that have a sexual component. The problem is compounded by the disaggregation aspect of minimal marriage: if Rose, in Brake’s example, can marry Marcel, her aunt, and
382 Marriage Octavian, and distribute the rights and obligations of marriage as each marital union sees fi t, we lose all continuity with the way we understand marriage. It becomes, as the defenders of traditional marriage in Congress feared, merely a state-sponsored contract. Moreover, minimal marriage cannot dispose of the idea of disaggregation, because doing so would undermine the very reason for having minimal marriage, which is protecting the basic good of caring relationships, most of which would not need the entire package of the rights and benefi ts of marriage—indeed, would be burdened by it. Thus, although disaggregation is essential to minimal marriage, it plays a crucial role in gutting out the usual understanding of what marriage is. Brake herself claims that although calling minimal marriage “marriage” is not important, and that it can be called other things, such as “personal relationship law” ( 2012 , 185), calling it marriage is nonetheless a good idea, because this would rectify past discrimination against nonheterosexuals and people not in romantic relationships, such as single people and people in strong friendships ( 2012 , 186). That is, “rebranding” marriage per her proposal is better than abolishing marriage because doing so rectifi es past injustices. However, Brake also insists that minimal marriage “should not be intended to convey legitimacy, merely a status designation” because part of what she desires is to get rid of the “invidious and illiberal” distinction between legitimate and illegitimate relationships, which is, as we have seen, Michael Warner’s complaint against marriage ( Brake 2012 , 187). 7 There is a tension here between rectifi cation and erasing the privileged social status of marriage. Brake cannot have it both ways. If she wants her proposal to erase the distinction between good relationships and notso-good ones, then she is in effect demoting marriage from its high status position to, let us say, an average or normal one. But doing so would not exactly be inviting those who have been discriminated against in the past and saying to them, “We are sorry. You are now welcome to this glorious institution of marriage.” Thus, if including all caring relationships lowers the status of marriage, it would not be a rectifi cation move. Either way, whether calling it marriage would have the effect of raising the social status of all caring relationships, and thus attaining the rectifi cation that Brake desires, or whether it would have the effect of lowering the social status of marriage, and thus leveling the distinctions between legitimate and illegitimate relationships, is a question that only time will answer, because these effects are entirely in the hands of social forces, not the intentions of individual human beings. (The state, after adopting minimal marriage, could engage in social propaganda to ensure that all such marital relationships are valued, but whether this would be successful is precisely up to these social forces.) Thus, Brake’s reason for rebranding marriage does not have much force, it seems to me. Thus, the issue of whether it is really marriage or not remains open. I see no way of deciding it on
Is Marriage Necessary? 383 metaphysical or philosophical grounds precisely because the concept of “marriage” lacks any fi xed references, and whatever social meaning it has is open to revision in the name of important social and political goals. But what is certain is that minimal marriage would radically change the way we think of and understand marriage. What are the options, then, if Brake is correct that caring relationships require the support of the state? One option is to insist on calling “marriage” only those relationships that refl ect the three main features of the meaning of marriage per Wedgwood’s understanding of the meaning of “marriage,” yet to also insist that the state extend similar benefi ts to caring relationships. On this option, whether marriages and (let’s call them) caring legal relationships have the same sets of benefi ts and responsibilities would be an issue to be further determined. The other option is to extend the name “marriage” and the rights and responsibilities of marriages to all caring relationships and be done with it. And what social effects this would have only God will know, to put the point dramatically. Is one option more defensible than the other? Note that because the state will support all caring relationships on either option, one cannot argue in support of the second option by claiming that the state would not be neutral under the fi rst option. Nor can one argue in support of the second option that state support for marriage would continue to valorize marital relationships at the expense of non-marital ones because the state would support the latter relationships. I have no fi rm answer as to which option is preferable, other than to weakly support the fi rst option if four assumptions are true, namely, that (1) sexual intimacy is indeed part of the usual understanding of “marriage”; (2) other caring relationships receive the support of the state along something of the lines of Brake’s proposal; (3) other caring relationships will not be harmed by reserving the term “marriage” to the socially shared meaning we currently have; and (4) other relationships are included in marriage as long as they satisfy the sexual intimacy component of the meaning of “marriage,” such as polyamorous groups, transgender people, same-sex couples, bi-marriages, and whatnot. (4) Minimal marriage might face a slippery-slope objection. One might object that caring relationships come in a bewildering variety of forms. May I marry my dog if my dog is taking care of me and I am taking care of my dog? 8 May I marry my sibling(s) if we are taking care of each other? And is there a limit on the number of marriages that one can enter into or on the number of the spouses in a group marriage? Brake has replied that invoking marriages to children and animals is “absurd” and reminding us that marriage is a legal contract to which parties must be able to consent, and neither children nor animals can do that ( 2017b , 313). 9 She does parenthetically add that she does not mean to be a speciesist and that if a non-human animal can enter into the complex, interpersonal caring relationship that we fi nd normally among adult human beings, “then the state might extend relevant rights—relocation
384 Marriage assistance, visitation rights—if possible” ( 2012 , 180). She accepts the possibility of siblings or fi rst cousins marrying each other because these marriages need not be sexual, so such marriages are not ruled out on the basis of being immoral ( 2012 , 164). As to group marriages, Brake states plausibly that large groups cannot marry for the reasons that, fi rst, for care to function properly there need to be psychological and material limits on the number of people caring or being cared for. Second, large groups are not essentially defi ned by their members: the group can remain the same as new members replace old ones, whereas such fungibility is not true of caring relationships ( 2012 , 164). But Brake ultimately takes the bull by the horns: “However, should a surprisingly large number of people genuinely sustain personal relationships, there is no principled reason to deny them distributable benefi ts . . . though other entitlements might be limited in number on grounds of feasibility.” ( 2012 , 164) Although Brake is able to stop the slide into adult-child marriages and ones between human beings and non-human animals on grounds of lack of ability for genuine consent, she is not able in principle to stop marriages of large groups or sibling marriages, except on grounds of feasibility and practicality. However, this result is not necessarily bad. It sounds bad only if we understand “marriage” to include sexual intimacy. If we do that, then such marriages either are open to sexual contact or already have it, which would be bad. But we have agreed that what “marriage” means is not set in stone, and since minimal marriage need not be about either sex or romance, then such marriages are not really problematic in this respect. They are about the spouses caring for each other, and this is the bottom line. (5) The fi nal objection is worrisome and has the potential to scuttle Brake’s proposal. It is that the concept of “care” or “caring” itself is subject to being contested, and we have no way of settling on a conception of “care” that would be neutral or acceptable to everyone. If this is true, then the main reason for Brake’s expansion of marriage—state neutrality—would fail in the case of care also. This is one of the main points that the philosopher Peter Brian Barry raises in his review of Brake’s book: Just as different conceptions of the good are multiform, different conceptions of caring are multiform. Aren’t there sexist and objectionably paternalistic conceptions of caring? Aren’t there fairly minimalist conceptions of caring that only call for voluntarily providing material support for another person? Could Hugh Hefner “care” for a Playboy bunny on one of these conceptions? Couldn’t a patriarch insist that he cares for his spouse while keeping her on allowance, making it diffi cult for her to communicate with friends and neighbors outside the home, encouraging her to limit herself to cooking and cleaning in the home, all because he thinks that this is what is good for women? ( 2013 , 352–353)
Is Marriage Necessary? 385 This is a formidable objection, especially given that one reason Brake favors caring relationships as the candidates for marriage is that in endorsing them the state would be genuinely neutral and avoid amanormativity and heteronormativity (and duo-normativity). One cannot reply merely by articulating a plausible conception of care and ruling out others, because the point is that the state ought to remain neutral between these competing conceptions, even if some of them are immoral. The only option that I see is to argue that some forms of care are not genuine because they lead to harm, in which case the state is justifi ed in not supporting them. For example, insofar as the patriarch’s “care” for his wife is harmful to her by denying her autonomy and options, and by stultifying her growth, there is no reason why the state should be in the business of supporting such forms of care. Other forms of care, silly to some, such as Hefner’s care for his “bunnies,” might slip through the cracks, but this might be a consequence that advocates of Brake’s view would have to live with. One might object that we have to agree on what counts as harm, which just pushes the problem one step back, as there is no neutral view of “harm” acceptable to everyone. This is true. But then this objection would apply to all liberal theories of the state, given that the state has to stop short of supporting harmful practices, whether they are “caring” (they mimic care) or non-caring. The objection would thus be unfair to Brake’s view. Whether Brake’s proposal of minimal marriage philosophically succeeds or not remains to be seen. But Brake’s basic point about the need for certain relationships to be supported by the state is both true and important. There is a lot at stake for some people. This is true whether marriage both in name and in law is extended to these relationships or whether only the laws of marriage are extended to them. Temporary Marriage If, in debating marriage, we are open to discussing the gender and number of the spouses, we should also be open to discussing the temporal duration of marriages. Recently, the philosopher Daniel Nolan (2016 ) proposed the idea of temporary marriages. They are marriages that “when entered into, are due to expire after a fi xed amount of time” ( 2016 , 180), although they can, of course, be extended or renewed should the spouses decide to do so. Temporary marriages are not the same as regular (or permanent) marriages. Permanent marriages are permanent by intention, which basically means that the spouses commit to each other with the intention of forming a permanent union, and the law usually understands these unions as permanent, at least in intention. Since many permanent marriages do not actually end up being permanent because the spouses decide for whatever reason to dissolve them (through divorce), they end up being temporary in effect . We should not confuse this factual temporariness with the one that Nolan intends. On his proposal, temporary