“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 ends, and at what costs, we cannot decide whether the legal definition should be restricted or expanded, how and to whom. Marriage may or may not need saving, but until we know just what is being saved, how the state might assist in its rescue, and at what cost, we cannot say whether the state should be involved in the rescue effort.

Common views and practices notwithstanding, the justification for the establishment of marriage is far from obvious. As a practical matter, the state can, does, and, I shall argue, should achieve legitimate public-welfare goals through other means. Parents are and should be held legally responsible for their offspring, regardless of their marital status. Registered domestic-partnership status—appropriately, though insufficiently—provides many of the legal benefits and burdens associated with marriage without the marital label. For its part, marriage does not require state recognition to exist. Think of polygamous unions; these are called, experienced, and understood as marriage by those party to them, despite being outlawed.

Furthermore, state control of marriage is not a universal arrangement. In many European and North American jurisdictions, religious authorities wielded final control over the institution until well into the eighteenth and even nineteenth centuries. Today, many same-sex couples assume marital status conferred by nongovernmental religious officers in many of these same countries. Similarly, among peoples who live in traditional societies at the fringes of the modern nation-state, marital status and practices proceed apace without the involvement of the state. Of course, where the modern state possesses the capacity to define and control marriage, it does and perhaps without exception. But prevalence alone does not make a convincing position.

By the measure of liberal principles, the justification for the establishment of marriage is also far from obvious. “Liberal” here refers to a family of ideas about political life, at the core of which is a commitment to liberty, equality, and stability amid deep diversity. This is a theory of politics in the tradition of John Locke, John Stuart Mill, Isaiah Berlin, and John Rawls. By drawing a line between private/ nonpolitical and public/political life, liberalism negotiates the conflicting pulls of freedom and fairness, diversity and equality, independence and dependence, the individual and the community. As Judith Shklar explains, liberalism is a political doctrine, not a “philosophy of life.” It has “only one overriding aim: to secure the political conditions that are necessary for the exercise of personal freedom.” To achieve this end, liberalism insists on drawing a line between public and political on one side and private and nonpolitical life on the other; it “must reject only those political doctrines that do not recognize any difference between the spheres of the personal and the public.” In the nonpolitical sphere, individual freedom reigns unfettered by the demands of political unity, and diversity flourishes. In the political sphere, universal norms and uniform laws govern the actions of independent citizens.

The presumption that the state should aim for neutrality with respect to matters that do not impinge on the physical and material well-being of citizens has long been central to the liberal democratic approach to negotiating the inevitable conflicts between freedom and equality. In liberalism’s calculus, a fair scheme of social cooperation may cost unfettered freedom in public but is reimbursed by public equality, relatively unrestrained freedom in private life, and stability in both spheres. The appeal of this approach is clear: it aims to enable deeply diverse societies to operate according to rules of justice without undermining many of the most significant differences that freedom bears. Individual rights, limited but not absent government, toleration, and some sort of separation of church and state are among its basic mechanisms for achieving the always changing and usually imperfect balance between liberty and equality in the face of diversity.

Before coming under full control of secular courts— which did not happen until the mid-nineteenth century in England, for example—marriage typically fell under the shared purview of political and religious authority. And still today, most citizens, customs, and laws of liberal democracies treat marriage as more than any given set of actions or delineable legal obligations and more than a simple social institution or private union. The diversely defined form(s), function(s), and forces of marriage derive from traditions of meaning and practice that exist historically and socially beyond or before the liberal state. Marriage, in traditions that dominate liberal democratic polities, was not bred to fit neatly within the limited reach of the state.

Given these facts, it is clear that the establishment of marriage flirts with violating liberalism’s most basic values. Because citizens disagree deeply about what marriage is and because families assume such diverse forms, the arrangement would appear to threaten equality, both formal (before the law) and substantive (within and among families and cultures). Liberty too is threatened: because the arrangement draws the state into the most intimate corners of citizens’ lives (family and sexual life, religious and cultural value systems) and effectively privileges some views of the good life while punishing others, the establishment of marriage threatens freedoms of conscience, expression, and association. With its border-crossing tendencies, marriage poses an obvious challenge to a political theory that relies heavily on distinctions between public and private life. On its face, the establishment of marriage would appear to interfere with privacy. And, to the extent that stability depends on liberty and equality, the current policy regime would seem also to threaten this third basic commitment. At the very least, a liberal justification for the establishment of marriage is not obvious. On the contrary, as this cursory consideration suggests, there is good reason to believe that state-sanctioned marriage conflicts with the most basic liberal commitments to equality, liberty, and stability. While all these violations may well be justified, assumption and assertion are not adequate to making the case.

The challenge to justifying the establishment of marriage is that it be true to the two primary players in the arrangement: marriage and the liberal state. To do this, a convincing defense would include four things: first, a full and accurate picture of the institution and, second, an explanation of why, in order to flourish, marriage needs the sort of state involvement entailed by its establishment. Third, it would delineate the goods the state secures through the establishment of marriage and explain why, to achieve its legitimate functions, the state needs to be so involved in marriage per se. Fourth, such a defense would explain how this arrangement avoids violating basic commitments to liberty, equality, and stability.

It is both striking and telling that few have attempted to defend the establishment of marriage, and the justifications that can be gleaned from their writing are not up to the task. As chapter 2 shows, American jurists tend to err in favor of marriage or liberal principles. Not until recently did they even acknowledge the need to negotiate a just coexistence. In chapter 3, we see that liberal theorists Locke, Mill, and Susan Moller Okin have tended to focus on the material side of marriage and the instrumental purposes of marital status, at least when considering the state’s role. This focus makes some sense, for it highlights those aspects of marriage that fit comfortably into a liberal tradition that takes the state as properly limited to matters of material concern—of action and behavior and not of belief and meaning. It does not, however, capture how most, including these same thinkers, actually treat marriage. Lost in the gap between the usually implicit explanations for state control of marriage and the view of marriage that most citizens and laws actually hold is the meaning side of marriage, that aspect of marriage that embodies nonmaterial beliefs, relationships, and obligations and that fundamentally challenges those borders established by liberal principals. Lost in the gap is a series of questions about marriage, the functions of public definition and conferral of marital status, and the role of the state therein that remain unanswered at the potential peril of basic commitments to freedom, equality, and stability.

The confusions of practice and the inadequacies of the liberal canon leave us with the task of elaborating a fuller picture of the institution of marriage embedded in liberal traditions—and especially of the unique function of public recognition therein—than is typically offered by liberal thinkers. Chapter 4 turns to critics of liberalism—some friendlier than others—to help draw this picture. These thinkers attend to aspects of marriage that their liberal counterparts ignore and thus help fill out the picture. The view of marriage that dominates liberal democratic traditions is best described as a formal, comprehensive social institution (FCSI). With its peculiar mix of extralegal character, scope, method, and purpose, marriage, on this account, is more like religion than other institutions and legal statuses such as civil unions, business partnerships, motherhood, or even funerals, to which it is often compared.

This explanation should not be confused with endorsement or justification. While this account better captures the way most people experience it and our laws treat marriage, it does not justify state control and use of the FCSI, at least not in liberal terms. It helps identify the differences between marriage and, say, civil union better than devoted liberals have done but does not explain why the state must be involved for marriage to produce its magic, or how the state can serve the role it currently serves without violating limits essential to securing liberty, equality, and stability in the face of deep cultural, religious, ethnic, and moral diversity.

(Continues…)

Excerpted from Untying the Knotby Tamara Metz Copyright © 2010 by Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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