When some good is arbitrarily granted to one group of people but denied to another group of people, there are two ways of implementing fairness. The first is to remove the arbitrariness by granting it to both groups. The second is simply to deny it to both groups. The latter course is especially appealing when you think that the value of the good is, in fact, highly dubious, or when you think that it involves unwarranted interference in people’s lives.
Why, then, in the debate about gay marriage is the first strategy the only one that people are debating? My colleague, Claudia Card, a renowned lesbian philosopher, published a paper over a decade ago arguing against gay marriage — on the grounds that no-one should be married, because marriage is not a good thing. At the time I was more bemused than persuaded by the argument, and now that I have revisited the paper and the issue I think that she is wrong. But I am surprised that her basic stand has received so little attention in the debate, at least among thoughtful people who are not completely caught up in the politics of the issue. (Alex Cockburn has a column which expresses this view, but I’ve not seen it much in any more mainstream place).
Here’s why:
The question Card’s paper raises, essentially, is this: ‘what’s the justification of marriage as an institution anyway?’ At some point in her paper (or maybe in conversation, its one of those papers it’s hard to re-read without seeing things you have found out in discussion) she points out (rightly) that in most of these discussions we don’t know what we are talking about when we are talking about marriage. So it’s worth being analytically clear about what we are seeking to justify when we justify marriage. I take it to be something like this: ‘Privileging, by the state, of a particular contract between two or more people, which is, at least at the time of contracting, to instantiate a commitment to a lifelong and exclusive intimate relationship’. Of course, if the state did nothing at all, except enforce contracts, people would make up their own contracts, and might well call them marriages. But no-one is likely to propose that the state nullify all such contracts. The interesting question is why it should promote them.
You might expect to find an answer to this question in a book entitled The Case for Marriage
Three basic kinds of justification seem available. The first is that promoting these kinds of contracts benefits children, who are better off raised by both their parents than by only one parent. I’m not sure what to make of such justifications. Children’s interests can be protected by other means than promoting marriage; trying to eliminate child-poverty, improving public health, pre-natal health care, and child health, restricting advertising, etc). Marriage-like relationships will occur in reasonable numbers even without state intervention, so many children will do fine anyway. If divorce is relatively easy (as it is), that off-sets much of the benefit of promoting marriage — and very few of the pro-marriage lobby, in fact, propose making divorce much harder than it already is. (In calling them the pro-marriage lobby I mean to distance myself from them for analytical, not rhetorical, purposes). (I’m not, here, addressing the question of how the state should encourage people to stay married — see Laura’s interesting comments on that — but the more fundamental question of whether the state should create marriages in the first place).
Similarly I find it hard to know what to make of the second set of justifications, which appeal to the interests of society in having productive and stable citizens. It does seem marriage-like relationships seem to tame men somewhat, but that taming effect seems to come as much from co-habitation without marriage, and if there is enough co-habitation for long enough men get old enough not to be too much trouble (since male anti-social behaviour drops off dramatically as middle age approaches anyway).
The cost of state involvement in marriage is this: the state is actively commenting on one kind of relationship and treating it as if it is better, and more important, than other kinds of relationship. And, in doing so, there is every reason to believe that it (and other social pressures) will lead some people to make false choices — either to marry the wrong people or to marry when they are not ‘the marrying kind’ (meaning, not the kind of person whom marriage will, in fact, benefit). Why should the state risk such costs to some of its citizens when, by remaining neutral, it can ensure that any mistakes are the fault of the people making them?
Religious defenders of marriage can appeal without embarassment to perfectionist justifications: this, or that, kind of relationship is really the best kind of relationship, and the church should try to promote it; and if that means that some people end up in situations that are less than the best for them that’s regrettable, but at least some are having a shot at the best. I understand this, and this is why I am reluctant to criticize churches for staying true to their own (wrong, in my view) standards about homosexuality and (not so wrong, in my view) standards about divorce. But churches are not states (at least in liberal societies), and their institution and recommendation of a particular kind of contract is not a use of public coercive force. States should be much more reluctant to deploy perfectionist justifications. The Libertarian approach, presumably, is to just say that states should stay out of people’s relationships completely — arriving at Card’s position but from different premises. But my reading of The Case for Marriage and, to be perfectly honest, my listening to the reruns of series one of Whatever Happened to the Likely Lads (don’t laugh!) suggests a sort of moderately perfectionist justification. It goes something like this:
Most people will flourish, over the course of their lives, better if they enter into intimate relationships with one other person, and make a long term commitment to that person. Not everyone, but most people. But people are generally focused on the present, and irrationally discount the future. On top of this there are numerous individual and social pressures, in fact, to delay or evade deep commitment. But, after a certain point, the longer you delay the harder it is to make or achieve the commitment (because we become less flexible as people, less able to adapt to and grow with the people we have committed to). State privileging of the marital relationship prompts people to consider a commitment they might not otherwise be prompted to consider. It does not force them into that kind of relationship, or any. But it gives them a small incentive to ‘take the leap’ and reminds them that it might be a valuable thing to do. This is a bit like the best justification of seatbelt laws, which says that they are justified because they prompt us to act on our own judgments, enabling us to overcome a pervasive but mild weakness of the will (‘I know I’ll be safer if I wear it, I care about being safer, I don’t get any experiential gain from not wearing it, but I’m not habituated to wearing it and I can’t be bothered’).
I don’t know exactly what I think of this justification either, but it seems like the right kind of argument at least — it is perfectionist, but moderately so. Implementing it leaves people who are ‘not the marrying kind’ to enjoy alternatives to marriage. And it really does justify marriage — there isn’t some obvious set of alternative means to achieve the goal it aims at. Oh, and IMHO it justifies gay marriage too, but that was not the aim — the aim was to find a justification of the institution that is just assumed to be good in that debate.
{ 14 comments }
Chris Martin 05.11.04 at 10:54 pm
Excellent post. My one comment is that fathers’ rights are also an issue. In America at least, children are more and more thought of as belonging to their mother rather than belonging to both of their parents. For instance, the popular abortion slogan “my body, my choice” signifies a complete disregard of men’s reproductive rights. As a result, the rights of fathers are often ignored.
Now I do realize that there is probably evidence that fathers are more likely than mothers to abandon responsibility. The standard for qualifying as a deadbeat Dad can be raised or lowered with a respective increase in the number of false positives (innocent penalized men) or the number of misses (unsupported mothers and kids). American law has, with fair justification, set the bar rather low but the unfortunate result is there are more false positives.
By penalized, by the way, I’m talking about three classes:
One way to reduce the overall number of innocent penalized men, though, is to encourage marriage and then discourage divorce. I realize this choice also has costs, so a fuller analysis is called for, but I do think it addresses an overlooked problem that American men currently face.
Joshua W. Burton 05.11.04 at 10:54 pm
It seems to me that the question is ill-put, or at least that there is a different question that wants answering before this one can be asked. Let’s stipulate for the moment that marriage, broadly defined as above, serves a valid public policy goal, and let’s alienate a few hard libertarians by granting further that the state may coercively pursue certain public goals.
A hurdle remains. _Is the state already prohibited, by its commitment to securing fundamental human rights and to pursuing less controversial public goals, from sanctioning marriage?_ This seems on the face of it a silly question: it’s how we’ve been doing it all along, and “all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
Yet this argument from tradition rests precisely on the societal consensus about _what marriage is_ which demonstrably no longer exists. As long as everybody (except Utah) knew what a marriage was, we could ask questions about its utility without getting into messy freedom-of-conscience and establishment-of-religion debates.
But once that consensus dissolves (in a perfect storm of contraceptive technology, multicultural immigration, women’s rights and gay awareness, for which we may well be grateful), public marriage policy becomes a much harder sell. Would subsidized marriage help to promote child welfare? How about subsidized communion wafers and prayer rugs while we’re at it, as they could surely be shown to statistically support the same end?
The justice of the peace is performing a religious rite, under color of domestic common law. Social utility is neither a necessary nor a sufficient condition to permit this, once universal implicit consent packs it up and goes home.
h. e. baber 05.11.04 at 11:06 pm
Does Card propose abolishing tenure as well as marriage?
Increasingly we live in a lean, mean society with little security and few safety nets. Apart from tenure, the family, even in its current attenuated form, is one of the few institutions that provides any reasonable degree of financial or social security.
That being said I suppose I’d go for a radical revision of the notion of marriage, or it’s replacement by something on the order of a domestic security pact that didn’t require sexual exclusiveness, wasn’t in any cases tied to a sexual relationship as such, could be entered into by any number of people, and would carry obligations for sharing resources, housing and the like.
Ralph Wedgwood 05.11.04 at 11:54 pm
I responded to Claudia in my article “The Fundamental Argument for Same-Sex Marriage”, in the Journal of Political Philosophy (September 1999). While I’m not completely happy with the way I stated things there, I am still inclined to stand by the main ideas.
I should probably correct something that you said. (This point is familiar to people who work on family law, but otherwise is surprisingly ignored.) Marriage is not a contract of any kind, but a legal status. True, marriage is entered by means of a contract. But the terms of this contract are simply that the contracting parties undertake to become each other’s spouse. The contract itself does not define what it is to be someone’s spouse; that is defined by state and federal law. If marriage were a contract, the mutual rights and obligations of the spouses to each other would be defined by the original contract. As it is, the government can unilaterally change these obligations by amending the law even without the consent of the spouses affected.
In my view, the most important feature of marriage is that it has what I called a “social meaning”: i.e., there is a body of common knowledge, or generally shared expectations, about the kind of life that married couples typically lead. The law serves primarily to underpin, stabilize and standardize this social meaning. Marriage in that sense is a social and cultural institution first and foremost, which crucially involves the law; it is not simply a legal institution (still less is it primarily a religious one).
I aimed to give a (prima facie) justification for marriage that was explicitly less paternalistic or perfectionist than the one that you suggest here. So, e.g., I deny that it is essential to the institution of marriage as such that it involves the state’s promoting marriage in any way (or in that sense “privileging” it, as you put it); I also deny that its justification rests on the empirical facts that married couples tend, statistically, to stay together for longer than unmarried couples, or that people in stable long-term intimate relationships tend to be happier and healthier than others, etc.
Instead, I argued that the essential justification for marriage is quite simply that a great many couples *want* to get married, for a variety of reasons that we can clearly see are typically neither frivolous nor malicious, but are instead deeply serious personal reasons that deserve to be respected; and that, moreover, there are no strong reasons to think that the institution typically does more harm than good, or that marriage cannot avoid violating any fundamental principle of justice (at least so long as it does not unjustly exclude any couples, such as interracial couples or gay couples).
Well, perhaps, that won’t seem very persuasive without further clarification. But I don’t have time to explain at greater length right now. (I’ve had a long day being overworked by the British university system…)
push 05.11.04 at 11:57 pm
a small quibble about casting your case as perfectionism–I’m not sure that your defence qualifies since it, together with seatbelt laws is based upon enabling through third-party enforced precommitment, what people already have reason to want. Isn’t perfectionism grounded in the comprehensive value of something even if it is value that is not perceived by individuals?
The other related question is: there is a case for some authority being empowered to act in cases of collective action failure, weakness of will, etc. But does it have to be the state, as opposed to some other institution , i.e. the church in the old days?
DJW 05.12.04 at 12:53 am
I can only speak for myself, but I’m an adocate of same sex marriage who finds Card’s position entirely persuasive. The reason is simple, my preference ordering goes like this:
1) No marriage
2) non-discriminatory marriage
3) discriminatory marriage.
And #2 seems plausible, while everyone in the world except Claudia Card an a few other weirdos disagrees with me about #1 being #1.
It’s the same reason I don’t talk much about communist utopias. (kidding)
A nit to pick:
Why should the state risk such costs to some of its citizens when, by remaining neutral, it can ensure that any mistakes are the fault of the people making them?
This is an odd statement. An unstated implied premise is that the only institution that might push an individual toward the wrong choice is the state. Trust me, there are others. In the case of marriage, the others are probably a good deal more powerful.
Also, your final argument seems to imply the existance of an empirical fact not in evidence, so to speak:
after a certain point, the longer you delay the harder it is to make or achieve the commitment (because we become less flexible as people, less able to adapt to and grow with the people we have committed to).
The implication appears to be that earlier marriages are more successful. I’d certainly have assumed the opposite to be the case. I’m not aware of the state of research on this question, but I wonder if you speak from a sense of what the evidence tells us, or if you’re speculating based on your own stated premises? It’s not convincing to me, but perhaps I’m such a thorough-going marriage cynic I just can’t see straight.
DJW 05.12.04 at 12:58 am
I didn’t mean to imply that Claudia Card was a weirdo.
John Quiggin 05.12.04 at 1:58 am
I’m not convinced that the starting point is the right one. What would happen if you applied the same analysis to employment relationships? They are regulated in all kinds of ways, but it’s not clear to me that this constitutes “privileging” employment.
How about the view that, since most people choose to get married and to engage in employment, the State provides a relatively detailed standard set of rules , leaving it open to people who don’t like those rules to make more flexible, though still regulated and constrained, arrangements?
The discrimination problem is then one of denying some people the choice of adopting the standard rules, either through State fiat or through allowing employers to discriminate.
raj 05.12.04 at 1:31 pm
>My colleague, Claudia Card, a renowned lesbian philosopher, published a paper oAt the time I was more bemused than persuaded by the argument, and now that I have revisited the paper and the issue I think that she is wrong. But I am surprised that her basic stand has received so little attention in the debate, at least among thoughtful people who are not completely caught up in the politics of the issue. ver a decade ago arguing against gay marriage — on the grounds that no-one should be married, because marriage is not a good thing.
The reason that Card’s article has received so little attention in the “debate” regarding the state extending legal recognition to relationships of same-sex couples (so-called “gay marriage”) on the same basis that it extends legal recognition to relationship of opposite sex couples (so-called “marriage”), is because it is completely irrelevant to the issue.
If Card wants to start a debate about whether the state should extend legal recognition to relationships of any couples, she is certainly free to do so. But to purporting to try to do so while appearing to sanction state discrimination against same sex couples is, in my view, fraudulent.
Moreover, the fact is that states aren’t going to get out of the marriage business any time soon–if ever–so it really is a waste of time and effort to spend a lot of time on the subject.
BigMacAttack 05.12.04 at 6:47 pm
If you aren’t a liberterian there doesn’t seem to be much of a need to have this debate.
I don’t think you could find many institutions that contain as much accumulated wisdom as marriage.
Topping it off we have the emperical evidence that shows that marriage benefits society in a variety of different and important ways.
What is the issue? [I am guessing the reflexive fear of and recoil from ‘conservative’ traditions generates the need.]
Harry,
‘Three basic kinds of justification seem available. The first is that promoting these kinds of contracts benefits children, who are better off raised by both their parents than by only one parent. I’m not sure what to make of such justifications. Children’s interests can be protected by other means than promoting marriage; trying to eliminate child-poverty, improving public health, pre-natal health care, and child health, restricting advertising, etc).’
Yea, you can skin a cat a lot of different ways. But why does the existence of methods 91 – 100 nullify the validity of method 1?
Which method is the most cost effective? Which method is least coercive? Etc. You need to explain why marriage is not as cost effective and more coercive. That is what you are supposed to make of the justification.
Joshua W. Burton,
The debate is much less about what marriage is and much more about what marriage should be.
Best I can make out you believe non ‘universally’ understood/accepted social/cultural institutions should not be sanctioned/promoted by the state.
Why?
Why is wrong for the state to support such institutions, even if they are beneficial, but not wrong for the state to support this or that policy that does not relate to such an institution?
Joshua W. Burton 05.12.04 at 8:46 pm
_Best I can make out you believe non ‘universally’ understood/accepted social/cultural institutions should not be sanctioned/promoted by the state._
_Why?_
Well, let’s consider Utah, late 19c, as a test case. A state’s admission to the union was set back a generation, and Union troops were nearly mobilized several times, to do once and for all what state militias had failed to do in Ohio, Missouri, and Illinois. Or, reading it the other way, a _de facto_ religious dictator was encouraged to set up a rather undemocratic independent statelet on American soil, squarely and profitably on the route to California, just because his followers were willing to fight a “sanctioned/promoted” cultural institution as others understood it.
Right now, the biggest practical problem I see with “business as usual” is Islamic marriage, with male-exclusive child custody, a one-sided right of divorce, and clerical sole mediation of domestic violence incidents. The alternatives, as I see it, are:
(1) That’s not about marriage: it’s a human rights issue, as any Christian jury would agree.
(1a) That’s not about marriage: it’s a human rights issue, as defined by Mary Robinson or Colonel Gaddhafi or whoever is in charge of human rights at the UN these days.
(2) That’s demonstrably what marriage means in Islamic texts and in some Islamic practice; too bad for Islam. Deus lo vult!
(3) Well, if _that’s_ what marriage means to some people, and if the Constitution won’t permit us to discriminate between their vision and ours, then marriage is unconstitutional, QED.
Perhaps I oughtn’t to pick on Islam or LDS particularly, when I could be looking to the beam in my own eye. Orthodox Jewish marital practice routinely involves NY, NJ, and Canadian (at least) courts in thorny issues of making secular divorce settlements contingent on the provision of a _get_, or signed bill of religious divorcement. This is both messy in practice and hard to defend in principle, in the face of the First Amendment.
Marriage isn’t just a lighthearted “social/cultural institution” like dyeing the river green on St. Paddy’s; it’s a profound family-defining spiritual rite, with its very own religious vocabulary to define our state in respect of it (“maiden”, “newlywed”, “widow”, “bastard”). If we weren’t already sanctioning it, we would never countenance setting out deliberately to do so; public funding of religious schools is _much_ less problematic than joint income tax filing on Adam and Eve’s “one flesh” theory.
gamini 05.12.04 at 9:03 pm
Slate made a slightly weaker argument after the Lawrence v. Texas ruling, observing out the irony that
The article contends that marriage, as a social, cultural, and religious phenomenon, is essentially a matter between oneself and one’s partner, one’s community, and possibly some church – not the state. The financial and legal dimensions, which do necessarily involve the state, have come to be associated with marriage per se only out of convenience, and should be recast as purely contractual matters.
push 05.12.04 at 11:36 pm
From today’s Times. I don’t seem to be able to link to it but type in Fay Weldon into search and you’ll find it. In France the state ordains a form of non-marriage partnerships called the pacte de civil solidarite which is increasingly popular. Seems to be a form of marriage lite, in which the penalties for exit are much lower and therefore the barriers lower as well….
david 05.15.04 at 5:00 am
In fact, legal marriage is not merely a ‘privileging, by the state, of a particular contract between two or more people, which is, at least at the time of contracting, to instantiate a commitment to a lifelong and exclusive intimate relationship’. It is not what we ordinarily mean by a ‘contract’ at all. Here is just one way it differs from an ordinary contract. When X and Y enter into an ‘ordinary contract,’ the terms of their contract are made clear in the initial formulation of the contract, and any changes or amendments that are made to it in the future can only be given force with both X’s and Y’s explicit consent. Legal marriage does not function in this way. For instance, suppose X and Y get married in 1980. In 1986, divorce laws are weakened. This would be an effective amendment to their ‘contract’; at any rate, it would change the terms under which either X or Y could nullify their contract. However, this change in the contract was not made with either X’s or Y’s approval or consent. It was (presumably) made by law-makers without consulting either X or Y at all.
The fact is that when one gets married, one enters into an ever-evolving complex of obligations and entitlements which cannot be clearly stated even on the marriage day, much less predicted. In this respect it differs significantly from an ordinary contract.
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