'Civil Marriage: Threat to Democracy' by Jessica Knouse in 18 Michigan Journal of Gender & Law (2012) 361 argues that "civil marriage and democracy are inherently incompatible".
Knouse asserts that that the incompatibility exists -
whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.
Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.She concludes that -
If civil marriage were abolished ... states would need to determine how to proceed. Part III(B), to that end, makes two proposals. First, states should allocate benefits to individual providers rather than sexual partners; second, states should allow sexual partners to enter private contracts that would be enforceable to the same extent that pre-marital agreements are currently enforceable.'Is Polygamy Inherently Unequal?' by Gregg Strauss in 122(3) Ethics (2012) 516-544 claims to begin
The first proposal—that states should allocate benefits to individu- al providers rather than sexual partners—would result in privileging all those who could prove that they were supporting others, physically or financially, regardless of whether their dependents were sexual partners, children, other relatives, or friends. Each provider would receive benefits commensurate with the amount of support they were providing. This would further the state’s interests in encouraging individuals to serve as providers and in privileging individuals who are serving as providers. These are surely legitimate interests, because they prevent the state from having to expend its own resources in caring for dependents.
This first proposal would be preferable to civil marriage in at least two significant ways. First, awarding benefits to individuals rather than couples—based on provider status rather than marital status — would result in a more just distribution of resources. It would allow the state to privilege those who are providers, as opposed to those who are merely married. Anyone who could illustrate that he or she was serving as a provider — regardless of the identity of his or her dependent — would receive benefits. Such a system would likely reduce the number of sexual partners receiving benefits (though sexual partners who served as providers would, of course, continue to receive benefits), and increase the number of other persons receiving benefits. Two sexual partners who were caring for the same child would each be entitled to benefits commensurate with the amount of their individual contributions.
Second, this proposal would be preferable to marriage because its burdens on liberty and equality would be minor in relation to its benefits to society. While it would admittedly encourage individuals to serve as providers and privilege individuals who did serve as providers— thereby burdening both liberty and equality—these burdens would be justified because they would confer substantial benefits on society. They would, indeed, ensure that all citizens had access to the basic resources needed to develop their own identities and interact as equals — which, as discussed ..., is a prerequisite of democracy.
The second proposal — that states should allow sexual partners to enter legally enforceable private contracts fixing the terms of their relationships and making arrangements for their dissolution — would be preferable to marriage because, while many couples currently enter mar- riage without any knowledge of their statutory rights and obligations regarding property, support, and child custody, this proposal would require all couples to take the initiative to create their own agreements. In doing so, it would likely increase the incidence with which couples de- fine the terms of their own relationships, and thereby increase individuals’ awareness of the terms to which they are agreeing. This transition to a regime governed by private contracts rather than default statutory provisions might not be as radical or difficult as some might expect, since many couples already contract around the default marriage and divorce laws by entering pre-marital agreements.
the task of assessing polygamy as a moral ideal. The structure of traditional polygamy, in which only one central spouse may marry multiple partners, necessarily yields two inequalities. The central spouse has greater rights and expectations within each marriage and greater control over the wider family. However, two alternative structures for polygamy can remove these inequalities. In polyfidelity, each spouse marries every other spouse in the family. In “molecular” polygamy, any spouses may marry a new spouse outside the family. These new models of polygamy face additional difficulties, but they can be egalitarian in principle.
