Minimal marriage: What political liberalism implies for marriage law

Ethics

Volumn 120, Issue 2, 2010, Pages 302-337

  Brake, Elizabeth ^a  

^a NONE

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EID: 77952480359     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/651429     Document Type: Conference Paper

References (152)

1. On same-sex marriage, see Adrian Alex Wellington, "Why Liberals Should Support Same Sex Marriage," Journal of Social Philosophy 26 (1995): 5-32;
2. Ralph Wedgwood, "The Fundamental Argument for Same-Sex Marriage," Journal of Political Philosophy 7 (1999): 225-42;
3. Kory Schaff, "Kant, Political Liberalism, and the Ethics of Same-Sex Relations," Journal of Social Philosophy 32 (2001): 446-62
4. and "Equal Protection and Same-Sex Marriage," Journal of Social Philosophy 35 (2004): 133-47;
5. and a related argument in Nicholas Buccola, "Finding Room for Same-Sex Marriage: Toward a More Inclusive Understanding of a Cultural Institution," Journal of Social Philosophy 36 (2005): 331-343.
6. On polygamy, see Cheshire Calhoun, "Who's Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy," San Diego Law Review 42 (2005): 1023-42;
7. and Jeremy Waldron, "Autonomy and Perfectionism in Raz's Morality of Freedom," Southern California Law Review 62 (1988-1989): 1097-1152. Neutrality also underlies the debate over same-sex marriage between Jeff Jordan, David Boonin, and Jason Beyer (see n. 66).
8. I include the purportedly neutral rationale given in Christopher Bennett, "Liberalism, Autonomy, and Conjugal Love," Res Publica 9 (2003): 285-301; other defenders of marriage-e.g., the new natural lawyers and Roger Scruton-do not aim at following public reason.
9. The most influential critic is Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), esp. 157-170
10. On the conflict between public reason and perfectionism, see Steven Wall, "Perfectionism, Public Reason, and Religious Accommodation," Social Theory and Practice 31 (2005): 281-304.
11. The classic source is G. F. W. Hegel [1821], Elements of the Philosophy of Right, ed. Allen W. Wood, trans. Hugh B. Nisbet (Cambridge: Cambridge University Press, 1995), sec. 75, 161A;
12. for a more recent example, see Stanley Vodrasta, "Against Blackstone and the Concept of Marriage as Contract," Modern Schoolman 81 (2004): 97-120.
13. On the larger issues, see, e.g., Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), 33, 169;
14. and the reply by John Tomasi, "Individual Rights and Community Virtues," Ethics 101 (1991): 521-536
15. At the end of 2003, reported by the General Accounting Office (GAO), Dayna K. Shaw, Associate General Counsel, in a letter of January 23, 2004, to Bill Frist. The letter accompanies the 2004 GAO report, labeled "GAO-04-353R Defense of Marriage Act." See also Enclosure I, "Categories of Laws Involving Marital Status," in a letter of January 31, 1997, by Barry R. Bedrick, Associate General Counsel, GAO, to Henry J. Hyde. The letter accompanies the 1997 GAO report, labeled "GAO/OGC-97-116 Defense of Marriage Act."
16. Craig Dean, "Gay Marriage: A Civil Right," Journal of Homosexuality 27 (1994): 111-115, at 112.
17. Mary Anne Case, "Marriage Licenses," Minnesota Law Review 89 (2004-2005): 1758-97, 1781, 1783.
18. See "State Policies to Promote Marriage," a report prepared for the U.S. Department of Health and Human Services, 2002, available from the USDHHS.
19. Department of Defense Web site (http://www.dfas.mil/);
20. Nathan McIntire, "Marrying for Money," L.A. Weekly, April 20-26, 2007, 26-27.
21. Both quotations are from the 1997 GAO report, Enclosure I.
22. In Marriage: A History (London: Penguin, 2006), Stephanie Coontz shows how this "traditional" ideal developed over the past 150 years, how its flourishing in the 1950s and 1960s was exceptional, and how it failed to apply to large numbers of working-class families.
23. I include these forms of financial assistance here as they are directly targeted to allowing spouses to maintain a relationship.
24. In 1888, the U.S. Supreme Court wrote that, while "other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties," in marriage, "a relation between the parties is created which they cannot change." This is cited in Carol Weisbrod, "The Way We Live Now: A Discussion of Contracts and Domestic Arrangements," Utah Law Review 2 (1994): 777-815, 779-780
25. Will Kymlicka, "Rethinking the Family," Philosophy & Public Affairs 20 (1991): 77-97, at 88.
26. Early proponents of contractualization were Lenore Weitzman, "Legal Regulation of Marriage: Tradition and Change," California Law Review 62 (1974): 1169-288;
27. and Marjorie Shultz, "Contractual Ordering of Marriage: A New Model for State Policy," California Law Review 70 (1982): 204-334.
28. Both proposals retain a marriage contract, which sets out domestic aspirations as well as legally enforceable obligations and is constrained by public policy. See criticism of contractualizing marriage in Mary Lyndon Shanley, "Just Marriage," in Shanley's Just Marriage, ed. Joshua Cohen and Deborah Chasman (Oxford: Oxford University Press, 2004), 3-30.
29. Case, "Marriage Licenses," 1773. Where caretaking is involved, privacy rights may protect caretaker autonomy; see Martha Fineman, "Postscript," in her The Autonomy Myth: A Theory of Dependency (New York: New Press, 2004);
30. and Harry Brighouse and Adam Swift, "Parents' Rights and the Value of the Family," Ethics 117 (2006): 80-108.
31. John Corvino, in "Homosexuality and the PIB Argument," Ethics 115 (2005): 501-534, responds at length to the "polygamy, incest, bestiality" argument against same-sex marriage, an argument made by John Finnis among others.
32. For example, Kansas Code §21-3517, Ohio Code §§2907.03.
33. On legal access rights, see Claudia Card, "Against Marriage and Motherhood," Hypatia 11 (1996): 1-23.
34. On how equity, partnership, labor, and tort law might apply, see Fineman, Autonomy Myth, 134-135 Fineman argues for abolishing marriage as a legal category and replacing it with a legal framework for caretakers; thus her proposal would shift many relations now governed by marriage to the realm of contract, labor, and tort law.
35. Their exclusion is overdetermined: parents or guardians have rights regarding minors in their care, with which minimal marriage contracts might conflict. See Brighouse and Swift, "Parents' Rights."
36. How many close relationships can one have? Apparently the social networking site Facebook limits users to 5,000 "friends"; most of these would presumably be mere acquaintances. I suspect the actual number of sustainable caring relationships is much lower. It might be objected that this criterion raises the bar as contrasted with current marriage, which does not require a caring relationship. It might be responded that, in immigration cases, spouses are required to document their intimacy and shared history. Although it would be impractical and invasive for the state to undertake such investigations in every case, it does not seem undesirable, in theory, to make such a relationship a criterion for legal marriage (ruling out, for instance, mail-order brides).
37. "Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships," a 2001 publication of the Law Commission of Canada, available at http://www.samesexmarriage.ca/docs/beyond-conjugality.pdf, examines the feasibility of self-designation (32-36) and other questions of institutional design. Thanks to Rachel Buddeberg for drawing my attention to this document.
38. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 212-54
39. and "The Idea of Public Reason Revisited," University of Chicago Law Review 64 (1997): 765-807.
40. It should be noted that citizens can invoke comprehensive doctrines in debate (e.g., referring to God) so long as their views are independently supported by public reason; Rawls, Political Liberalism, 252.
41. Many versions of this principle have been defended; here I introduce Rawls's later formulation, which complements his account of public reason. See Rawls, Political Liberalism, 190-95;
42. for comparison, John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), at p. 94, and sec. 50.
43. See also the careful critical discussion of variant neutrality principles in George Sher, Beyond Neutrality: Perfectionism and Politics (Cambridge: Cambridge University Press, 1997), chap. 2.
44. Rawls, Political Liberalism, 192-193
45. See Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 114-24;
46. Steven Wall, "Neutrality and Responsibility," Journal of Philosophy 98 (2001): 389-410.
47. See responses in Rawls, Political Liberalism, 190-95;
48. and in Will Kymlicka, "Liberal Individualism and Liberal Neutrality," Ethics 99 (1989): 883-905.
49. Rawls, Political Liberalism, 252; it also applies to citizens in political contexts.
50. Sher, Beyond Neutrality, 36. This exposition follows Sher at 28. Sher raises problems with defining "conception of the good"
51. This exposition follows Sher at 28. Sher raises problems with defining conception of the good" but as judgments regarding sexual behavior and relationships are commonly given as examples of such conceptions, I set this aside. See Sher, Beyond Neutrality, 37-43;
52. Rawls, Theory of Justice, 331, and "The Idea," 779.
53. See Rawls, Political Liberalism, 214.
54. Rawls, in Theory of Justice, and other neutral liberals (see Sher, Beyond Neutrality, 31-34) apply neutrality more extensively to all policy; in such theories, I would not face the objection.
55. Rawls, "The Idea," 779.
56. The Idea Ibid., 788.
57. Rawls, Political Liberalism, 217.
58. Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 191;
59. Rawls, Theory of Justice, 329.
60. Bruce Ackerman, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980), 362.
61. Rawls, Theory of Justice, 331.
62. See Adèle Mercier's affidavit for the petitioners in Halpern v. Canada, A.G. on the meaning of the word 'marriage', filed in the Ontario Superior Court of Justice, Court files 684/00, 30/2001, November.
63. Rawls, "The Idea," 779.
64. William Galston, Liberal Purposes (Cambridge: Cambridge University Press, 1991), 283-89.
65. Recent findings of benefits of two-parent families are reported in Amy Wax, "Traditionalism, Pluralism, and Same-Sex Marriage," Rutgers Law Review 59 (2006-2007): 377-412, 386.
66. Paul R. Amato and Alan Booth, cited in Marsha Garrison, "Promoting Cooperative Parenting: Programs and Prospects," Journal of Law and Family Studies 9 (2007): 265-79, at 266 n. 9.
67. See also Paul R. Amato, Laura Spencer Loomis, and Alan Booth, "Parental Divorce, Marital Conflict, and Offspring Well-Being during Early Adulthood," Social Forces 73 (1995): 895-915, which finds that children of high-conflict marriages benefit significantly from divorce, so effects of divorce are not simply "additive."
68. See Iris Marion Young, "Mothers, Citizenship, and Independence: A Critique of Pure Family Values," Ethics 105 (1995): 535-556
69. See Gary Becker, at the Becker-Posner blog, http://www.becker-posner- blog.com/archives/2007/03/should-marriage-1.html;
70. cf. Fineman, The Autonomy Myth, 86.
71. On the Court review, see Martha Nussbaum, Sex and Social Justice (Oxford: Oxford University Press, 1999), 205.
72. For more on harm-to-children arguments, see Eric M. Cave, "Harm Prevention and the Benefits of Marriage," Journal of Social Philosophy 35 (2004): 233-243
73. Moreover, Garrison reports that inadequate evidence exists as to the success of marital conflict reduction under the Healthy Marriage Initiative, studies have not been done on the worst-off demographics, studies show that 25 percent of couples are worse off after therapy, and posttherapy divorce rates remain high ("Promoting Cooperative Parenting," 273-75).
74. Anne L. Alstott, in No Exit: What Parents Owe Their Children and What Society Owes Parents (Oxford: Oxford University Press, 2004), discusses continuity of care, 15-20.
75. See Fineman, The Autonomy Myth, 71-94;
76. and Young, "Mothers."
77. According to U.S. Department of Justice statistics, of the "roughly 3.5 million violent crimes committed against family members during 1998 to 2000 48.9% were crimes against a spouse 84% of victims of spousal abuse were female" Matthew R. Durose, Caroline Wolf Harlow, Patrick A. Langan, Mark Motivans, Ramona R. Rantala, and Erica L. Smith, Bureau of Justice Statistics, Family Violence Statistics: Including Statistics on Strangers and Acquaintances, U.S. Department of Justice, NCJ 207846 (2005), 8, 1.
78. Wedgwood, "The Fundamental Argument," 233.
79. Wellington, "Why Liberals Should Support," 13.
80. Bennett has similar difficulties explaining why his rationale restricts marriage to pairs, in "Liberalism."
81. Calhoun, "Who's Afraid of Polygamous Marriage?" 1035.
82. Paula Ettelbrick, "Since When Is Marriage a Path to Liberation?" Out/look: National Lesbian and Gay Quarterly 6 (1989): 14-17
83. reprinted in Andrew Sullivan, ed., Same-Sex Marriage: Pro and Con (New York: Vintage, 2004), 122-28.
84. See also Card, "Against Marriage";
85. and Drucilla Cornell, "The Public Supports of Love," in Shanley, Just Marriage, 81-86. Emma Goldman and Voltairine De Cleyre are earlier critics of state regulation of sexuality and the possessiveness and dependence of marriage.
86. Laura Kipnis, Against Love (New York: Pantheon, 2003);
87. compare Friedrich von Schlegel's novel Lucinde (1799) and Eric M. Cave, "Marital Pluralism: Making Marriage Safer for Love," Journal of Social Philosophy 34 (2003): 331-347
88. Anne Kingston, The Meaning of Wife (Toronto: HarperCollins, 2004).
89. Adrienne Rich [1980], "Compulsory Heterosexuality and Lesbian Existence," in Adrienne Rich's Poetry and Prose, ed. Albert Gelpi and Barbara Charlesworth Gelpi (London: Norton, 1993), 203-224
90. John McMurtry, "Monogamy: A Critique," Monist 56 (1972): 587-599
91. See Sasha Cagen, Quirkyalone (New York: HarperCollins, 2006);
92. Cagen writes, 18, that Time and The Economist reported in 2000 on the growing number of unmarried urbanites.
93. Toni Morrison, "Foreword," in Beloved (1987; rev. ed., New York: Vintage, 2004), xvi-xvii.
94. bell hooks, "Revolutionary Parenting," in her Feminist Theory: From Margin to Center (Boston: South End, 1984), 133-146
95. Patricia Hill Collins, "It's All in the Family: Intersections of Gender, Race, and Nation," Hypatia 13 (1998): 62-82, 62.
96. See also Enakshi Dua, "Beyond Diversity: Exploring the Ways in Which the Discourse of Race Has Shaped the Institution of the Nuclear Family," in Scratching the Surface, ed. Enakshi Dua and Angela Robertson (Toronto:Women's Press, 1999), 237-259
97. Wedgwood, "The Fundamental Argument," 239.
98. Wellington reviews this literature in "Why Liberals Should Support," 17 ff.
99. "51% of Women Are Now Living without Spouse," New York Times, January 16, 2007; an editorial ("Can a 15-Year-Old Be a 'Woman without a Spouse'?" published February 11, 2007) criticized the data but acknowledged that revised calculations showed a majority of spouseless women.
100. Wellington, "Why Liberals Should Support,"
101. and Cave, "Harm Prevention," consider and reject harm-based arguments for restricting marriage; I direct the reader to their able refutations.
102. Raz's suggested argument for marriage might thus be extended to adult care networks. See Raz, Morality of Freedom, 161-162
103. See Jeff Jordan, "Is It Wrong to Discriminate on the Basis of Homosexuality?" Journal of Social Philosophy 26 (1995): 39-52.
104. David Boonin ("Same-Sex Marriage and the Argument from Public Disagreement," Journal of Social Philosophy 30 [1999]: 251-59)
105. Jason A. Beyer ("Public Dilemmas and Gay Marriage: Contra Jordan," Journal of Social Philosophy 33 [2002]: 9-16) respond.
106. Veronique Munoz-Dardé, "John Rawls, Justice in the Family, and Justice of the Family," Philosophical Quarterly 48 (1998): 335-52;
107. Susan Moller Okin, Justice, Gender, and the Family (New York: Basic, 1989);
108. see also discussion in Rawls, "The Idea," 787-894.
109. Jennifer Roback Morse, "Why Unilateral Divorce Has No Place in a Free Society," in The Meaning of Marriage, ed. Robert P. George and Jean Bethke Elshtain (Dallas: Spence, 2006), 74-99, 75.
110. Coontz, Marriage, 10, and chap. 2.
111. John Boswell, The Marriage of Likeness: Same-Sex Unions in Pre-Modern Europe (London: HarperCollins, 1994).
112. See Wedgwood, "The Fundamental Argument"; he cites Leslie Green, 236, at n. 14;
113. cf. Raz, Morality, 307-313
114. Rawls, Theory of Justice, 454.
115. For example, Galston, Liberal Purposes. While Galston's influential version challenged neutrality, a neutrality-respecting version is possible. For critical discussion, see Young, "Mothers";
116. and Fineman, The Autonomy Myth, 71-94.
117. Susan Moller Okin, "Political Liberalism, Justice, and Gender," Ethics 105 (1994): 23-43.
118. See Ann Levey, "Liberalism, Adaptive Preferences, and Gender Equality," Hypatia 20 (2005): 127-143
119. Thanks to an anonymous reviewer for Ethics for this point.
120. See Eva Kittay, Love's Labor (New York: Routledge, 1999).
121. Rawls, Political Liberalism, 188, 180, 190.
122. Rawls, Theory of Justice, 92.
123. Rawls, Political Liberalism, 179.
124. Political Liberalism, Ibid., 75-76; also 178-82, 187-190
125. For more detailed, and critical, discussion of various definitions proposed in the literature, see Virginia Held, The Ethics of Care: Personal, Political, and Global (Oxford: Oxford University Press, 2006), 29-43.
126. Such caretaking has costs for caretakers; this speaks to the need for dependent caretaking frameworks, for which there have recently been a number of arguments; see Fineman, The Autonomy Myth;
127. Kittay, Love's Labor;
128. and Alstott, No Exit.
129. Rawls suggests that adult dependency be dealt with at the legislative stage under the assumption that citizens are normally able to cooperate (Rawls, Political Liberalism, 184-86). As almost everyone will need care at some point, excluding this fact about human life is problematic, but I do not pursue this here; it is tangential to my main point about caring relationships.
130. There are differences: Fineman and Kittay argue for state support for dependent caretakers, which would not be appropriate in nondependent caring relationships.
131. Rawls, Theory of Justice, 440, cf. 396.
132. For a survey of psychological benefits of interpersonal relationships, see Daniel Perlman, "The Best of Times, the Worst of Times: The Place of Close Relationships in Psychology and Our Daily Lives," Canadian Psychology 48 (2007): 7-18 (this was Perlman's 2006 presidential address to the Canadian Psychological Association).
133. See Perlman, "The Best of Times," 7-8, on centrality; quotation from 11. Perlman also notes the devastating psychological effects of abuse and exploitation; however, that bad relationships are injurious does not make good ones less important.
134. See Adina Schwartz, "Moral Neutrality and Primary Goods," Ethics 83 (1973): 294-307;
135. Thomas Nagel, "Rawls on Justice," Philosophical Review 82 (1973): 220-34;
136. Kymlicka, "Liberal Individualism."
137. Rawls, Theory of Justice, 62.
138. See, e.g., Roger Scruton, Sexual Desire (London: Free Press, 1986), 358;
139. Robert George, "'Same-Sex Marriage' and 'Moral Neutrality'," in Homosexuality and American Public Life, ed. Christopher Wolfe (Dallas: Spence, 2000), 141-153
140. For discussion of the difficulties here, see Charles Mills, "'Ideal Theory' as Ideology," Hypatia 20 (2005): 165-184
141. Rawls, Theory of Justice, 200.
142. Theory of Justice, Ibid., 199.
143. "State Policies to Promote Marriage," 1. See also the 1996 U.S. Personal Responsibility and Work Opportunity Reconciliation Act, Title I, Sec. 101 (findings and related congressional testimony asserting pressing public interest in maintaining our current understanding of marriage.)
144. Alstott, No Exit, 8;
145. cf. Cave, "Harm Prevention."
146. See online documents at http://www.aahmi.net/.
147. Shanley, "Just Marriage."
148. See Carole Pateman, The Sexual Contract (Cambridge: Polity, 1988). 100.
149. Alstott, No Exit, 24.
150. Lucinda Ferguson, "Interpersonal Obligation, Spousal Support, and the Social Nature of Intimacy," paper presented at the 2007 Applied Philosophy annual conference, Philosophy and the Family, Birmingham, June 29 to July 1.
151. Cass Sunstein and Richard Thaler, "Privatizing Marriage," Monist 91 (2008): 377-387, at 384.
152. See Gary Becker, "Polygamy and Monogamy in Marriage Markets," in his A Treatise on the Family, enlarged ed. (Cambridge, MA: Harvard University Press, 1993), 80-107.