Remaking Marital Law

by Roderick Long

This article was originally publish by C4SS Senior Fellow and Molinari Institute President Roderick T. Long for Reason on July 12, 2012.

Minimizing Marriage: Marriage, Morality, and the Law, by Elizabeth Brake, Oxford University Press, 240 pp., $24.95.

Does legalizing gay marriage go far enough?

Opponents of same-sex marriage are quick to raise the specter of polygamy. If “everybody should have the right to marry,” Rick Santorum asked on the campaign trail earlier this year, then “what aboutthree men?” While Santorum clearly intended this quip as a reductio ad absurdum of calls for marriage equality, the Arizona State University philosopher Elizabeth Brake argues in Minimizing Marriage that recognizing polygamous and polyamorous unions is not only required by justice but doesn’t go far enough.

For Brake, marriage not only should not be restricted to opposite-sex couples, or indeed to couples at all. It constitutes unjust discrimination, she argues, to restrict marriage to romantic or sexual relationships. Instead, the social and legal status of marriage should be available to “caring relationships” of all kinds (though not to Santorum’s further bugaboos of “man on child” and “man on dog” unions, since parties to marriage contracts must be legally competent). Moreover, the terms of such marriages should be flexible, rather than fixed by a state-imposed one-size-fits-all model; one might, as in one of Brake’s examples, choose to cohabit with a lover but confer one’s spousal health care benefits on an impoverished relative, and authority for end-of-life decisions on a close friend. The result is what Brake calls “minimal marriage”: marriage with minimal requirements for recognition.

These proposals will sound attractive to many libertarians who seek to make marriage a purely contractual matter. But Brake does not follow the path to complete privatization, arguing instead that caring relationships are “a good that the state should support.” However minimal it may be, Brake’s ideal of marriage still entails such traditional legal accompaniments as access to government benefits (mandatory spousal leave, tax-funded relocation assistance) that libertarians typically condemn as unjust, and exemption from legal requirements (immigration restrictions, duty to testify) that many libertarians would exempt the unmarried from too.

While Brake is a Rawlsian liberal rather than a libertarian, her ideal of “minimal marriage” is explicitly modeled on Robert Nozick’s conception of the “minimal state”—the most extensive restriction compatible with justice. And like Nozick, Brake must fight a war on two fronts: against those who want more state restriction than minimal marriage offers, and against those who want less.

Against those who want more, Brake’s arguments are bold, careful, and devastating. She takes as her starting-point the idea of liberal neutrality, according to which it is unreasonable to impose controversial conceptions of the good (even correct ones) on dissenting citizens, since respect for the coerced requires that coercion be justified in terms of reasons that they could accept. Liberal neutrality is often invoked on behalf of same-sex marriage, but for Brake, restrictions on multiple-partner marriages are no less problematic. And just as heteronormativity privileges opposite-sex relationships over same-sex ones, so “amatonormativity” (Brake’s coinage) privileges amorous relationships over other caring relationships such as friendships. Thus, the state violates liberal neutrality when it allows controversially amatonormative views about good human relationships to shape marriage law.

To concerns about children, Brake argues that childrearing and marriage are separate issues that should be legally decoupled. To worries that polygamy is frequently oppressive toward women, Brake counters that in the “small patriarchal religious communities” where polygamy flourishes, monogamy is no better; the solution is to combat oppression generally, not just the polygamous variety.

And in response to the University of Chicago law professor Mary Anne Case’s argument that the legal function of marriage is the “designation, without elaborate contracting, of a single other person third parties can look to in a variety of legal contexts,” Brake argues that however efficient this may be, it is unjust insofar as it privileges one marriage form over others. (Libertarian readers may be reminded of Kevin Carson’s argument that

“by providing a ready-made and automatic procedure for incorporation” and so reducing the associated transaction costs, the state has “tilted the playing field decisively toward the corporate form” and so “reduced the bargaining power of other parties in negotiating the terms on which it operates.”)

Against those who want less than minimal marriage—i.e., those who favor making the terms of marriage a purely private matter—Brake maintains that caring relationships are “primary goods” whose value is agreed upon by virtually everybody, regardless of their more specific moral or religious convictions. States exist, in part, to ensure equitable distribution of primary goods; and since these goods are not controversial, the state’s involvement does not violate neutrality. Here libertarians are likely to find her arguments less convincing. Neutrality worries aside, are states well-suited to the task of distributing primary goods equitably? The institution’s track record does not inspire confidence.

Brake argues that simply privatizing marriage would “cede control of this still socially powerful institution to the churches and other private-sector groups,” while continuing state involvement “makes equal access to marriage as a social status more likely.” Yet this argument asks us to contrast a state sector imagined as reformed and improved, one whose apparatchiks have evidently read her book and taken her advice, with an unchanged private sector where her arguments have made no impact—in short, a world where marriage traditionalists still dominate public discourse but somehow never get elected. Is this a fair or plausible comparison? (Brake also maintains that the state is best suited to administer marriage because it is “centralized” and “not subject to market pressures,” which to libertarian ears is like saying that because a certain material is highly flammable it’s the best choice for home insulation.)

Brake dismisses the likelihood of “ludicrously large marriages,” on the grounds that caring relationships “require that parties be known personally to one another, share history, interact regularly, and have detailed knowledge of one another.” But whence this requirement? Epicurus famously numbered his friends (Facebook friends avant la lettre?) by the cityful. For those of us who have been reared on a more Aristotelean, exclusive conception of friendship, the Epicurean view may seem impoverished; but by the standards of political liberalism, can the superiority of Aristotelean over Epicurean friendship permissibly be invoked in the framing of marriage law without violating liberal neutrality?

Brake is also confident that in most cases “abuse of the right would have no major costs,” and in any cases where it might, she recommends “bureaucratic oversight” and “tests like those now used by immigration officials” to determine whether caring relationships are genuine. But Brake’s confidence about the rarity of costly abuse seems excessively optimistic; it’s not hard to imagine acquaintances who plan, for unrelated reasons, to move to the same city marrying to obtain relocation assistance. Or, more excitingly, the members of a criminal conspiracy marrying one another to obtain immunity from testifying. As for immigration-style tests of the genuineness of marriages, not only are these notoriously intrusive, but they are likely to lead in practice to the imposition of a normalizing model of the sort Brake seeks to avoid.

Still, one need not be a Rawlsian to think that, so long as the state is involved in areas where by libertarian standards it shouldn’t be, there’s a prima facie case for its involvement at least being conducted in as nondiscriminatory manner as possible. Perhaps roads should be privatized, but given that the state is currently building and funding them, they clearly should be open to drivers of all creeds, races, etc.; the analogous point holds for marriage law. And by libertarian standards, immigration restrictions are arguably a worse injustice—more destructive of people’s lives—than, say, tax-funded relocation benefits; so Brake’s proposal would involve less total injustice than the current system. Minimal marriage, then, has a serious claim to libertarian support.

All the same, minimal marriage has its risks, even as a second-best option. As Judith Butler warns in her essay “Is Kinship Always Already Heterosexual?“: “To be legitimated by the state is to enter into the terms of legitimation offered there and to find that one’s public and recognizable sense of personhood is fundamentally dependent on the lexicon of that legitimation.” Just as libertarians are divided as to whether to focus their efforts on petitioning the state for more liberty—inevitably, on the state’s terms—or on building alternative institutions that bypass the state entirely, a similar choice faces those who favor marriage equality.

Roderick T. Long is a professor of philosophy at Auburn University and the president of the Molinari Institute.

8 thoughts on “Remaking Marital Law

  1. Lets come back to reality now for the facts. Gay & lesbian marraige or relationships should never be allowed in any way, shape or form. Clearly totally against what we are!!!! No disputing that fact!!!

  2. There is nothing libertarian about gay marriage, I’m afraid. And marriage is not a contractual arrangement. A night with a prostitute is. A surrogate pregnancy arrangement is. Marriage isn’t.

    Marriage turns people who were not previously related into “one flesh”, relatives of each other, and is a life-long arrangement that cannot be retrospectively cancelled. Till death do us part. The purpose of marriage is the bearing of children, although companionship comes into it too.

    Two men “getting married” is a category error – they cannot bear children together – and to allow them to mock the sacrament of matrimony can only be interpreted as an attempt to destroy social norms, and undermine the marriage arrangement and push the state yet further into the business of picking up the pieces of the decaying social fabric.

    A multiple marriage? Well the Muslims do have up to 4 wives – but they are capable of bearing children and so are not analogous to “gay marriage”. The problem with Muslim marriage is that, owing to the inferiority of the Muslim religion and culture, they interpret marriage as a contract, and so you can marry four wives, divorce them for no reason by uttering a simple phrase three times, and then go onto to the next four. So it is not till death do us part. And yet, as the mothers of his children, the divorced Muslim’s wives will always be related by blood to him (“one flesh” in the Bible term), and so the concept of divorce is a nonsense.

    One could ask whether it is right or proper for numerous wives to be married to the same man – can numerous people constitute “one flesh”. Of course the patriarchs in the Bible had more than one wife, and so, in a culture where this was accepted, and where marriage was accepted as a lifelong, non-rescindable relationship, polygamy would not be out of place. But it would be out of place in England, because it is not culturally accepted, and so would lead to numerous relationship breakups, “divorces”, and ultimately state intervention.

    It is very difficult to think away from state propaganda, and Roderick Long in this article is just mouthing state propaganda. The state has sought to diminish marriage and promote promiscuity over decades. The Molinari institute might claim to be libertarian, but unless they see that a free society has certain cultural preconditions they will end up calling for the very cultural revolution that justifies the state.

  3. I think we’ve been here before with this one. I’m with djw. The article argues for minimum state involvement in marriage, then suggests the state can define a ‘ genuine caring relationship’ to prevent abuse of the system.Would the state then have the power to dissolve a marriage if it failed the test? I’m afraid that point caused the whole argument to fall down.
    But there are two important points about marriage which campaigners of the sort who write such articles fail to understand.Marriage was not invented by the state. It has existed since the earliest times of human existence.It was devised by, and for, a man and a woman to care for each other and any children they have. If marriage doesn’t offer the kind of lifestyle being sought,then people are free to make their own arrangements. Marriage is not compulsory. People should stop trying to reinvent the wheel.

  4. ” there’s a prima facie case for its involvement at least being conducted in as nondiscriminatory manner as possible.”

    First impressions are often misleading. Any enlargement of the state, in the name of “nondiscrimination” or whatever you like, is counterproductive. In this instance, Mr Long appears to be using the politically approved sense of “nondiscrimination”. Why? State approved marriage is bad enough already, why add to it in the name of equality? What has that got to do with smashing the state? Nothing, it just further corrupts another social institution. If you’re gay, make whatever contractual arrangements you like but don’t go crying to the state for legal privileges.

  5. I take a rather weasily view of this matter, and am glad no one has asked me to discuss it on the radio. On the one hand, I just don’t accept that marriage is as fixed in meaning as we keep being told. We’ve adapted without too great a wrench from the till death us do part meaning that was broadly the case before about 1960, to the modern custom of serial polygamy. Why not adapt it further to allow men to marry men, and women to marry women? On the other hand, I do smell a trick here. I think any legalisation will be used to set the State on to any church that doesn’t play along.

    I also suspect it’s being used by the ruling class as an issue to divide its conservative and libertarian opponents.

    Perhaps we should have homosexual marriage – but not right now. In England, after all, unlike in most American jurisductions, we do have civil partnerships Already, there’s no shortage of independent Christian ministers and reform rabbis who will bless these unions. Doesn’t that add up to marriage in every worthwhile sense?

  6. My position on this remains what I’ve said before, to whit-

    The campaign for Gay Marriage is a campaign of the American (“Progressive”) Left. Its sole purpose is to bring dismay to their blood enemies, the American (“Christian Fundamentalist”) RIght. We are going through this purely because, as it has been since the 1960s (earlier to some degree, but almost entirely from that point onwards) when the Yankees[1] sneeze, the rest of us are obligated to suffer double pneumonia.

    What is staggering is how, over and over and over again, we fall for this. We see quite clearly the origins of a “reform” movement, we see quite clearly its underlying purpose, and yet we dutifully fall into line taking it at face value, like good little useful idiots. We have to stop this.

    [1] Literally. The American Proggies are the ideological descendents of the Yankee post-millennialists. Indeed, one can argue that the American political divide is a blood feud between two philosophies rooted in the split between Northern Post-Millennialism and Southern Pre-Millennialism.

  7. Never really understood why people needed a little piece of paper from the state to legitimise a lifelong relationship with your other, surely if people were serious about the idea of marraige they would seek out whatver ceremony they wish to sanctify it – privately.

  8. JFen, it is important to some because it confers many, many benefits such as inheritance, medical benefits, tax allowances, child custody advantages, medical and financial proxy, immigration issues, allowed to share a bed in fundamentalist countries, social acceptance (the term ‘living in sin’ still exists!) etc.

    Civil Union vs. Marriage: correct me if I’m wrong, but don’t you have to have sex (consumate) in a regular marriage for it to be legal? This is not the case with civil unions. Also, a civil union with a non-EU citizen has many more legal hoops to jump through to attain residency than a marriage would.

    Here are my preferences:
    1. No state involvement in marriage.
    2. All marriage banned.
    3. Any number of any gender allowed to be recognised as married.
    4. Gay marriage allowed.
    5. Status quo.

    djwebb: “owing to the inferiority of the Muslim religion”
    Inferior to what? It needs something to be inferior to, it simply cannot be ‘inferior’.

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