In what manner should the state design spousal institutions and affect the choice spouses make between these institutions? The existing legal discourse is polarized between two opposite approaches to this question: one supporting public channeling, the other preferring private neutrality.
The public-channeling approach is based on a monolithic-perfectionist philosophy that posits the state’s authority and duty to foster certain ways of life and prefer them over others. The application of this approach in the spousal context means that the regulation of spousal relationships should be based mainly on public interests and shared moral values. The public-channeling approach perceives marriage as a public institution and stresses the state’s role in channeling spouses into traditional, legal marriage.
In contrast, the private-neutral approach is based on a liberal-neutralist philosophy. According to this view, the liberal state must adhere to a neutral approach toward various lifestyles and refrain from preferring one over another. The application of this approach to spousal law means that the state must respect the spousal patterns selected by the parties and is not to channel spouses toward any specific spousal pattern. In its radical versions, this approach seeks to abolish marriage as a legal institution, or at the very least to replace the perception of marriage as a public institution with a contractual account of marriage.
Unconvinced by either approach, this chapter lays out the foundation for a new model – the pluralistic model. This approach is based on perfectionist liberal philosophy that emphasizes the inherent value of pluralism as well as its role in enhancing individual autonomy. It underscores the idea that individual autonomy means not only the absence of formal limitations on individuals’ choices, but also the existence of a range of plausible options. In light of the values of autonomy and pluralism, modern liberal approaches emphasize the duty of the liberal state to create a diversity of social institutions that enable the individual to make genuine and meaningful choices among various alternatives. This chapter argues that in the spousal realm, the pluralistic approach posits an alternative to both the private-neutrality and the public-channeling approach. On the one hand, similar to the public approach, the pluralistic approach rejects the pure, private vision of marriage and insists on the active role of the state in the design of marriage as well as alternative spousal institutions. On the other hand, in contrast to the collective, social, and often traditionalist moral values that guide the public approach, this approach seeks to design spousal institutions in light of the liberal values of pluralism and autonomy. Furthermore, whereas the public approach seeks to channel people toward one social institution (e.g., traditional marriage), the pluralistic approach requires the state to contribute to the creation of a diversity of valuable spousal patterns that will offer spouses a meaningful choice between the different possibilities.
This chapter explores the pluralistic approach by discussing three publicly debated topics: (1) the regulation of cohabitation relationships; (2) the legitimacy of legal privileges for civil marriage; and (3) the judicial acknowledgment of alternative marriage systems to conventional marriage, such as religious marriage or covenant marriage. Finally, this chapter discusses Israel’s supposedly pluralistic system of spousal institutions. This case study sheds light on the risks inherent in adopting the pluralistic model without implementing the limitations and criteria that will be recommended in the present chapter.