"In clear and jargon-free writing, Tamara Metz makes a persuasive case for the separation of marriage and the state. Readers who pick up this book to inform themselves about the same-sex marriage debate will be led to wonder why the state involves itself in marriage at all."--Shelley Burtt, author of Virtue Transformed

"This provocative and timely book makes an important contribution to our understanding of both liberal political theory and what marriage law should be. The writing is clear, succinct, and a pleasure to read. This book is essential reading for everyone interested in the family, political theory, public policy, or law."--Mary Lyndon Shanley, Vassar College

Tamara Metz is assistant professor of political science and humanities at Reed College.

Untying the Knot

MARRIAGE, THE STATE, AND THE CASE FOR THEIR DIVORCEBy Tamara Metz

PRINCETON UNIVERSITY PRESS

Copyright © 2010 Princeton University Press
All right reserved.
ISBN: 978-0-691-12667-8

Contents

Acknowledgments.........................................................................................................vii-1- Toward a Liberal Theory of Marriage and the State..................................................................1-2- Confusion in the Courts............................................................................................19-3- Marriage and the State in Liberal Political Thought................................................................47-4- Marriage: A Formal, Comprehensive Social Institution...............................................................85-5- The Liberal Case for Disestablishing Marriage and Creating an Intimate Caregiving Union Status.....................113-6- Reconsidering the Public/Private Divide............................................................................153Notes...................................................................................................................163Bibliography............................................................................................................185Index...................................................................................................................199

Chapter One

Toward a Liberal Theory of Marriage and the State

On June 17, 2008, San Francisco's straight and iconoclastic mayor Gavin Newsom presided over the wedding of Del Martin, 87, and Phyllis Lyon, 84. Partners for more than half a century, Martin and Lyon were the first same-sex couple to be married under the California Supreme Court's landmark ruling In re Marriage Cases. In addition to the joy that normally accompanies a wedding, Martin and Lyon's ceremony was marked by the euphoria of injustice righted. Mayor Newsom declared, "Today, marriage as an institution has been strengthened."

On January 20, 2009, in Washington, DC, on the steps of the United States Capitol building, Pastor Rick Warren opened the historic inauguration of the forty-fourth president, Barack Obama, with the words, "Almighty God, our father." At that moment, amid the thick whirl of hope and virtue, on the side streets in the capital and cities across America, some of Obama's most loyal supporters stood and waved flags of protest. Warren's comments on same-sex marriage stirred the only noticeable disturbance in Obama's transition into the White House. One month earlier, Warren had explained why, though he supported "equal rights for all Americans," he opposed same-sex marriage:

The issue to me, I'm not opposed to that [laws that enable couples to share insurance benefits] as much as I'm opposed to redefinition of a 5,000 year definition of marriage. I'm opposed to having a brother and sister being together and calling that marriage. I'm opposed to an older guy marrying a child and calling that marriage. I'm opposed to one guy having multiple wives and calling that marriage.

Friendly interviewer, fellow evangelical star Steven Waldman pressed: "Do you think those are equivalent to gays getting married?"

Oh, I do. For 5,000 years, marriage has been defined by every single culture and every single religion—this is not a Christian issue. Buddhist, Muslims, Jews—historically, marriage is a man and a woman.... I just don't believe in the redefinition of marriage.

Newsom and Warren clearly stand at opposite ends of the political spectrum. Yet for all of their obvious disagreement, they share one crucial—and problematic—assumption: that the state should be in the business of defining and controlling marriage. Fights rage over who ought to have access to the status, but rarely do parties to these debates defend the very foundation of their position. "Today," Mayor Newsom proclaimed, "marriage has been affirmed." True though this may have been on that day, it does not tell us why the state must be involved in making love public. And despite his own observation that marriage long predates the modern state—by some four-thousand-plus years—Warren unquestioningly equates the definition of marriage with the state of California's definition of it.

This book challenges this widely held and typically undefended assumption that the state should create, control, and rely upon marriage. Prudence and liberal commitments to liberty, equality, and stability weigh heavily against this arrangement.

* * *

In most, if not all, liberal democracies today, marriage is established. To say this is to highlight two facts. First, despite a flourishing diversity of family forms and public debates about what marriage is, governments define and confer marital status and use it as an exclusive and privileged means for meeting public-welfare aims. Marriage is the favored family form—or the favored veil under which to place the family. The state privileges the marital family in designing and dispersing legal benefits aimed at protecting and supporting networks of intimate care. Legal kinship presumptions (for example, paternity presumption when a birth occurs within marriage), frameworks for dissolving families (for example, settled divorce procedures), and material bonuses for engaging in family life under the marital veil (for example, the spousal benefits of Social Security) evince this practice. Other family forms are not roundly ignored or excluded from government policies. Welfare benefits often target nonmarried, single-parent households, and food assistance is typically available regardless of marital status. Still, the marital family is the preferred form. In the United States, government efforts after the 1996 welfare reform to support poor families by strengthening their marriages are perhaps the most striking examples of this fact.

Second, to say that marriage is established is to highlight the fact that the state exercises final say over the content and public use of the marital label. Although the state is often lenient with most extralegal uses of the marital label, it can and does exercise final control over the public, even nonlegal use of the term marriage. Take the case of polygamist Tom Green: he ended up in jail for violating Utah's laws against plural marriage, even though he and his "spiritual wives" scrupulously avoided seeking legal recognition for their unions. The state prosecuted Green for misusing the marital label, even in its extralegal form. Government wields control of marriage over and against all other public authorities—religious and secular—and in doing so serves as the predominant authority in the reproduction not just of a legal status but also of what I will argue is a comprehensive social institution. In sum, to call marriage "established" is to draw attention to the integral place of marriage in state policy and to the central role assumed by the state in defining a particular version of marriage.

To assess arguments for and against expanding the legal definition of marriage or arguments for and against using marriage as a vehicle for public policy—in short, to answer questions raised by debates that rage around us today—we must consider why marriage is established in the first place. Unless we are clear about what marriage gets from the state and the state from marriage, to what...