'What's in a Name? The Case for the Disestablishment of Marriage' by Carolyn McConnell
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The most remarkable social change of the past two decades has been the movement for gay rights focused on the right to marry. The movement for gay marriage has made urgent the question of what the right to marry might be and indeed what marriage is. Marriage is, among other things, a sacred and expressive institution imbued with robust notions of the good life, but it is also a state license. That is, in our society, marriage is established as religion is not.
This paper addresses the question begged by centuries of American jurisprudence: Is marriage after all, as the Supreme Court in Reynolds v. United States presumed, an institution with 'which government is necessarily required to deal'? To demonstrate the costs that come with state establishment of marriage and to make marriage visible as a system of state intervention rather than a natural fact, I look at marriage through the lens of a largely forgotten piece of American legal history: the Mormon polygamy cases, which vividly demonstrate the contradictions and injustices inherent in the liberal state’s involvement in marriage.
This paper’s claims are that, first, excluding same-sex couples from state-established marriage cannot be defended and violates the Constitution. However, second, this exclusion is specifically a violation of the Equal Protection Clause, not the Due Process Clause, and therefore disestablishment of marriage is constitutionally permissible. Third, establishment of marriage leads to violations of our liberal ideals without corresponding benefit. The state can and should get out of the marriage business.
McConnell asks -
If the state gets out of the marriage business, there remain a number of alternatives. First, the state could abolish marriage. Perhaps that means forbidding people from entering anything called “marriage.” This would be the flip side of what it does now; the state would shift from licensing use of the word to forbidding it altogether. Even more draconian, the state could forbid entering into anything that looks like marriage. These two would have many of the same problems as the system of state licensing of marriage, and then some. It would interfere with a multitude of genuine due process rights: rights of intimate association, of establishing a home and raising children, the free speech right, and freedom of religion. This is a non-starter.
Alternatively, the state could just abandon the field to contracts and religions. People would be free to make whatever arrangements they liked, sanctifying them or not in whatever way they liked. The answer to why this is likely an inadequate solution requires answering the question begged by centuries of jurisprudence and by this paper so far.
Because of the triumph of the romantic idea of marriage over the earlier contractual and authoritarian concept of marriage, and perhaps heightened by the decline in marriage’s cultural centrality, the question what marriage is for is an uncomfortable one in our culture. People now often conceive of marriage as something they enter to seek individual happiness, so it can seem crass to look for an extrinsic purpose to marriage. But marriage as an institution long preceded this romantic ideal (nor is it clear that a uniform societal institution is well-suited to satisfying individuals’ myriad desires). We should look deeper. It is reasonable to presume that such a central fixture of human life, practiced in some form by almost all human cultures, is a response to some feature of the human condition. What is that feature?
Essential to the human condition are our long periods of dependency, on both ends of life. We are not, contrary to Hobbes, mushrooms sprung from the earth, and autonomy, though an ideal, is far from the default. I believe, following Martha Fineman, that marriage is a response to the human condition of dependency. As a species, because of our long infancies and childhood and our potentially long periods of old age, we are characterized by dependency. All of us reached adulthood only after a long stretch of dependency, and many of us will experience dependency later in life due to disability, illness, or old age.
Fineman characterizes this as inevitable dependency, and she identifies a second type of dependency generated by the first type: Those who provide caregiving require resources that they themselves cannot generate because of their caregiving responsibilities. Therefore caregivers are dependent on resources with which to sustain themselves and those they care for. Fineman calls this derivative dependency. Marriage is a response to these two types of dependency. As Fineman puts it, marriage is a “repository for dependencies.” Specifically, it is a way of privatizing dependency, rather than assigning responsibility for both types of dependency more broadly across society. Marriage was once the framework for “protecting and providing for the legal and structurally devised dependency of wives.” Because of that structural dependency, it was nearly impossible for women to care for children outside of marriage. Nowadays, as women’s structural dependency has receded, the barriers to caring for children outside of marriage have receded, as demonstrated in the rates of out-of-wedlock births. Thus, much of dependency has vacated our primary social institution for dealing with it.
Shifting our focus from romantic love to dependency allows us to sort intimate associations into those relationships that can justly be left to contract from those that cannot and in which there is a proper role for the state in creating institutions. Failing to distinguish these categories is where, for example, the Law Commission of Canada, in its otherwise thoughtful and groundbreaking 2001 report on marriage law reform, did not quite get it right. “Recognizing and supporting personal adult relationships that involve caring and interdependence is an important state objective.” Why this focus solely on adult relationships? Romance does not need the state. Contract doctrine presumes relationships between equals who freely consent to agreements that thereby embody and advance their freedom. Intimate associations between able- bodied adults without responsibility for children or disabled or elderly relatives meet these requirements. Current family law implicitly recognizes this, in enforcing premarital contracts for property and spousal support purposes - but not child support.
Relationships between autonomous adults are a small minority of intimate relationships. Other relationships - those involving dependents and caregivers - cannot be conceptualized as relationships between freely consenting equals. Therefore for these relationships, justice requires some other framework besides contract. Furthermore, it is these relationships with which the state is properly concerned because it is through the provision of care that society is reproduced. Caregiving, as the Skinner court did not quite see, is “fundamental to the very existence and survival of the race.” Only some persons are derivatively dependent due to providing caregiving, but the entire society depends upon and benefits from their caregiving. Justice therefore requires that the state support and reward the provision of care.
What might an institutional framework for this look like? How would responsibility for caregiving be allocated between state and family? The least revolutionary solution would be to stick close to marriage: civil unions for all. This would look a lot like marriage without the involvement of religion, gender roles, and all the historical freight of the term marriage. It would retain the current allocation of responsibilities for caregiving between state and families and would likely perpetuate nuclear families with a sexual pair at its heart as the default family form.
Perhaps the assumption of a sexual relationship at the heart of our state-recognized unions should be jettisoned. Martha Fineman argues that a focus on dependency and caregiving would shift the focus from the sexual couple dyad to that of mother and child, or more broadly caregiver and dependent. This would suggest that many of the traditional limitations on marriage are irrelevant. If the relationship is not about sex but about caregiving, why shouldn’t two sisters enter the relationship, or four people or five?
Would the institution necessarily even involve more than one adult? That is, if the relevant relationship is between caregiver and dependent, should we jettison the last resemblance to contract and cease thinking of it as a license between adults? Perhaps a single adult might acquire a license recognizing her relationship to her dependents—and therefore, perhaps, her claim to societal support, calling into question the allocation of responsibility for dependency between state and family. I do not presume to have the answer to these questions, but no longer taking marriage for granted opens up our thinking to shape institutions to our real human needs.
