AUDASE

The End of ‘Marriage’

By LAURIE SHRAGE NY TIMES

The institution of marriage has become the focus of public debate and reform, not just in the state-by-state political battles familiar to us in the United States, but across the world. Some of the longstanding practices currently being scrutinized both here and in other countries include parental approval in the choice of a spouse, permission for a husband to take more than one wife (polygyny), temporary marriage, close relative (incestuous) marriage, strict or permissive divorce terms, mandatory bride virginity, child marriage or betrothal and gender-structured marriage in which wives and husbands have different duties and privileges and therefore must be gender "opposites."

Marriage reform is typically part of a larger agenda for social change. In earlier eras, challenges to bans on interfaith and interracial marriage were tied to political movements promoting religious, ethnic and racial equality and social integration. In the Middle East, Africa and Asia today, marriage reformers often aim to expand the rights and liberty of girls and women, while in the Americas and Europe, their primary aim is to advance social equality and respect for lesbians and gay men.

While marriage reform is moving forward in many countries (for example, to extend access to same-sex couples), many prominent legal and political theorists - such as Cass Sunstein, Richard Thaler, Martha Fineman, Tamara Metz, Lisa Duggan, Andrew March, and Brook Sadler (to name only some of those who have put their views in writing) - are proposing that the institution of marriage be privatized. More specifically, they propose that we eliminate the term "marriage" from our civil laws and policies, and replace it with a more neutral term, such as "civil union" or "domestic partnership." The state would then recognize and regulate civil unions rather than civil marriage, and people would exchange marriage-like rights and duties by becoming "civilly united." Some private organizations, such as religious institutions, might still perform and solemnize marriages among their congregants, but these marriages would have no official state recognition.

The primary argument for this change of policy is that the state allegedly has no business regulating marriage, which is a complex cultural and religious practice. However, the state does have an interest in promoting private caregiving within families - the care of children, elderly parents and sick or disabled relatives. According to advocates for marriage privatization, the state can better pursue its interest in promoting nongovernmental forms of caregiving by establishing and regulating civil unions for all who qualify, and steering clear of defining, interfering with or regulating "marriage."

Of course, private lives are complicated. Many different kinds of families and households exist and are capable of providing care and nurturance to their members. This includes single-parent families, unmarried partners who care for each other and/or children, and non-spousal relatives - for example, siblings - who together care for parents and children. Those who advocate for replacing civil marriage with civil union maintain that the many tangible benefits of civil marriage (such as tax relief, benefit sharing and inheritance rights) should be available, not only to families headed by heterosexual couples, but to all families that relieve taxpayers of much of the cost of the care and nurturance of their members.

The political theorists mentioned above argue that the best way for the state to begin treating all families equally is for governments to avoid the highly contested terrain of licensing marriage and granting a package of rights only to citizens who achieve this status. Instead, they contend, governments should license civil unions for a wide range of caregiving units and extend the benefits that promote private caregiving to those units that gain this status. Caregiving units are defined in terms of the commitments of ongoing support that adults make to each other and their dependents, rather than in terms of the sexual/romantic attachments that happen to exist between a pair of adults.

This is an ingenious proposal that has many advantages. First, by eliminating "marriage" and revising state policies to focus on caregiving activities rather than sexual/romantic relationships, the state advances its legitimate interest in insuring that vulnerable citizens receive care and nurturing without illegitimately interfering in the private sphere of marriage. Our sexual, romantic or marital relationships are governed by values and beliefs that may not be shared by all citizens, and so noninterference in this sphere is generally a good policy. Keeping the government out of our bedrooms is especially important for democracies that value religious diversity and personal freedom.

Second, by licensing a wide range of caregiving units, the state treats families that are differently structured equally. Some families may be headed by a heterosexual married couple, but others may be organized around one or more nonromantically attached adults and there is no good reason for the state to prefer one caregiving arrangement over others. State support for diverse families is especially good for democracies that value social equality among citizens and equality of opportunity for all, no matter how one starts out in life.

So why not advocate for the end of civil "marriage"?

Unfortunately, this proposal has some serious problems. First, "privatizing" marriage will not cause it to disappear - it will just leave it to be regulated by private institutions, especially religious and ethnic ones. For many centuries, marriage has been the primary mechanism by which people who are not related "by blood" become relatives, and it is unclear that civil unions will acquire this social power. Many families will then be structured and governed primarily by private marriage customs and practices now freed of state regulation. Because of the deep and rich cultural significance of marriage, in many cases marriage arrangements will take precedence over the terms of civil unions. When these arrangements exist in tension with widely shared public values - like those that subordinate wives and daughters and limit their opportunities - privatizing and deregulating marriage will curtail the government's ability to promote gender equality within families structured by marriage. In other words, privatizing marriage will give private organizations, including inegalitarian ones, more influence over the institution of marriage without giving individuals negatively affected much protection by having access to civil union status.

Second, because civil unions are designed to include many kinds of households, their terms will need to be flexible and individually negotiated. Importantly, adults who are not in marriage-like relationships may not want to exchange the same set of rights as those who are, such as debt and income sharing. An inclusive institution of civil union then is likely to become equivalent to a system of privately negotiated domestic contracts that the state merely enforces and also protects from outside interference. The problem with this is that, when the terms of civil unions are individually rather than publicly negotiated, they will be less responsive to widely-shared public values and beliefs. Moreover private negotiations will require hiring legal professionals to protect the interests of all parties, which will put civil unions outside the reach of many.

In short, the arguments against privatizing marriage are similar to those against privatizing formal schooling or all forms of public assistance. Private institutions may do socially valuable work, but because they are governed by their own rules, they may also engage in forms of discrimination that conflict with public values.

Those advocating for privatizing and deregulating marriage are operating with too narrow a vision of the state's (and society's) interest in recognizing families. I agree with marriage privatizers that the state should not promote marriage among adults as a way to establish parent responsibility or to avoid poverty. The state can pursue these aims less intrusively - by formalizing agreements of child support and custody between both unmarried and married parents, that is, independently of marriage. Indeed the terms of marriage are not comprehensive enough to cover this, though they traditionally assigned the bulk of childcare to wives. But not promoting marriage is different from deregulating or privatizing it. In countries or states where women have achieved formally equal rights, such as the United States, there is no need to support heterosexual marriage as a way to insure the well-being and security of women.

Sadly, for many women today, marriage rarely is a means to economic and social security and often puts these goals at risk. Wives who perform unpaid caregiving and place their economic security in the hands of husbands, who may or may not be good breadwinners, often find their options for financial support severely constrained the longer they remain financially dependent. Decades of research on the feminization of poverty show that women who have children, whether married or not, are systematically disadvantaged when competing for good jobs. Marriage is neither a recipe for economic security nor responsible parenting.

To help move the state away from promoting marriage as a way to advance its interest in protecting children, we need to design policies that support caregivers of all kinds and cooperative caregiving schemes among parents, whether they are married or unmarried, or civilly united or not. Flexible civil unions may work for some, marriage for others, but the state should offer a mechanism for formalizing co-parenting agreements independently of the commitments that adults make to each other.

While many marriage privatizers are anxious to limit state control over sexual intimacy between adults, they seem to forget the importance of state regulation in protecting the fundamental rights of those whose intimate social relationships become abusive, coercive and exploitative. Public regulation of marriage is critical for protecting vulnerable citizens in such situations. Public reform of marriage is also critical for improving the general social condition of women and children in many countries today, as well as the social standing of lesbians and gay men. Having the state regulate only civil unions is much less certain to accomplish profound social change.

Imagine that the states had not repealed "head and master" laws (which gave a husband in a marriage ultimate control of the family's property) or made other changes that rendered spouses formally equal and profoundly changed the status of married women in American society. These changes include the right of married women to own property in their name and greater protections against domestic violence. They also include laws prohibiting credit and employment discrimination against married women. Suppose instead the states had simply privatized marriage and accomplished the above reforms for people who become civilly united.

Under a system in which the state only recognizes and supports civil unions, shouldn't it still prohibit discrimination against women who are married and protect them against domestic violence, whether they are also civilly united or not? Shouldn't the state also restrict child marriage and nonconsensual marriage? And shouldn't the state also prohibit terms of marriage that require involuntary servitude from a spouse? Without these restrictions, the condition of married women and girls would be unlikely to improve much. But if the state has to regulate marriage to protect married women or minors in some ways, then it has not fully privatized marriage or eliminated "marriage" from our laws.

The state need not (and should not) use its power to coerce domestic and sexual intimacy (civil marriage or union) between co-parents in order to advance its legitimate goal in protecting the welfare of children. Instead the state can pursue the latter goal less intrusively by formalizing schemes of cooperation among parents in different kinds of relationships. Moreover, the state should recognize the marriages of same-sex couples that desire to participate in this institution and make the commitments thought appropriate to it. Even if marriage becomes more inclusive in ways that protect equality and freedom for all, some caregivers will prefer more flexible civil union agreements, or only to formalize their child support and custody arrangement. Public regulation and recognition of all of these options is an important step toward achieving social justice for women, lesbians and gay men, ethnic and religious minorities and children.

Laurie Shrage is a professor of philosophy and women's studies at Florida International University. She was a Laurance S. Rockefeller Visiting Fellow at Princeton's University Center for Human Values during 2011-12, where she wrote several papers about the regulation and promotion of marriage by the state.