Marriage Proposals

Questioning a Legal Status

Anita Bernstein

• Publisher: NYU Press
• Year: 2008
• ISBN:
  9780814739402
• Topic: Law
• Subtopic: Family Law
• Index: Law

The essays in Marriage Proposals envision a variety of scenarios in which adults would continue to join themselves together seeking permanent companionship and sustenance, linking sexual intimacy to a long commitment, usually caring for each other, and building new families. What would disappear are the legal consequences associated with marriage. No joint income tax return; no immigration privileges like the “fiancée visa” or the right to bring in a husband or wife; no special statuses for prison visits or hospital decisions; no prerogative to remain silent in court by claiming “confidential marital communications”; no pension entitlements; no marital benefits and detriments regarding criminal or civil liability.

The anthology makes a unique contribution amid the two marriage furors of the day: same-sex marriage and the Bush Administration's “marriage movement” (that marrying is good and more marriages would be better for society). Abolishing the legal category of marriage is the only policy suggestion in current American discourse that speaks to both causes. Activists on both sides of the same-sex marriage fight, along with marriage movement partisans, all seek improvement through law reform. Marriage Proposals gives them a viable reform—abolition of marriage as a legal status—for fighting battles in the courtroom and the streets.

Contributors include Anita Bernstein, Peggy Cooper Davis, Martha Albertson Fineman, Linda C. McClain, Marshall Miller, Lawrence Rosen, Mary Lyndon Shanley, and Dorian Solot.

Part I

Challenges to the Status of Marriage

Chapter 1

The Meaning of Marriage

Martha Albertson Fineman

The Future of Marriage

This chapter asks the question, Given changes in the legal regulation of marriage, coupled with changing patterns of intimate behavior, why should marriage continue to be the exclusive, preferred core or basic family connection? It is marriage that is asserted to be the tie that defines which families are legitimate.

For some critics of the status quo, the issue is the inclusion of alternatives to the husband-wife dyad within the category of marriage. For others, the question is marriage itself as a legal construct that carries with it significant societal benefits. Why should marriage be so privileged? Some proponents of abolishing marriage as a legal category argue that marriage should be replaced by contract in the first instance, allowing couples to structure their own relationships in the ways they want. According to this position, there is no reason for the state to be involved in the articulation and imposition of those terms any more than it would be involved in the enforcement of contracts in general.

Feminists might also point out that one of the state’s historic interests in the institution was to use regulation of marriage and divorce to mediate relations of dependency between husbands and wives. Since wives are no longer dependent persons, confined to home and hearth, there is no longer any appropriate rationale for the state’s involvement in marriage. Given aspirations of gender equality, which posits that couples are capable of making their own marital terms and freely deciding when and for what reasons to dissolve their relationships, it should be they, not the state, who make determinations about their relationship. What is, what should be, left of marriage as a status in modern American society? What societal purposes could state intervention and regulation of marriage serve in a no-fault, prenuptial, gender-egalitarian world? Shouldn’t private lives be left to private ordering—to contract?

Further indicating to many that it is time for a serious reassessment of marriage and its role in society is the fact that marriage drags along with it certain historic assumptions about the institution and its members that limit the coherent development of family policy. Marriage also impedes other policy formation; it is offered as the social policy resolution for poverty in welfare debates. Marriage may in fact be the only clear and consistent family policy idea developed in the United States. The existence of the institution and assumptions surrounding it distort our policy and politics. The theoretical availability of marriage interferes with the development of other solutions to social problems involving children and poverty.

As the various (and by no means exhaustive) meanings of marriage listed in this chapter indicate, marriage is expected to do a lot of work in our society. It is not to quibble that much of this work must be done. Children must be cared for and nurtured, dependency must be addressed, and individual happiness is of general concern. However, we should be asking ourselves as we consider each of these tasks: What does marriage have to do with it? Is the existence of the institution of marriage, in and of itself, essential to accomplishing any of the societal goals or objectives we seek to bring about?

In this chapter I argue that for all relevant and appropriate societal purposes, we do not need marriage and we should abolish it as a legal category, transferring the social and economic subsidies and privilege it now receives to a new family core connection—that of the caretaker-dependent. In making this proposal I want to be very clear about two things. First, to state that we do not need legal marriage to accomplish many societal objectives is not the same things as saying that we do not need a family to do so for some. However, family as a social and legal category should not be dependent on having marriage as its core relationship. Nor is family synonymous with marriage.

Family affiliations are expressed in different kinds of acts, only some of which are legal. Some affiliations are sexually based, as with marriage. Some are forged biologically, as with parenthood, although this tie can be created legally through adoption also. Other affiliations are more relational in nature, such as those based on nurturing or caretaking or those developed through affection and acceptance of interdependence.

Second, even if we conclude we do not need marriage as a legal category, this does not mean that marriage as a societal institution would disappear. The symbolic dimension of marriage—the coming together of two individuals with vows of love and commitment—would most likely continue to exist as a social, cultural, and/or religious construct. Without legal status, however, marriage would no longer be the privileged mechanism whereby the state distributes certain social goods.

Why Marriage?

The marital family has designated functions within a society. It is also a significant status to many individuals. But what exactly is that marital family? What does it mean to society and to individuals as a practice as well as a politics?

In thinking about this question, it is important to remember that marriage is an institution susceptible to societal pressure and change. This means that marriage has a history of transformation and reconstitution that may be relevant to contemporary consideration of the relationship. Certainly marriage as both practice and aspiration is not the same institution today as it was for young people in the mid-twentieth century.

Consider how we as a contemporary, modern, and secular society might imagine the legal institution of marriage if we were able to work upon a clean slate, freed from the religious and common-law history of the institution. What would be our sense of the appropriate content, purpose, and function of this legal institution of modern marriage? One way to begin to answer that question is to look at what marriage does mean today on a cultural and social level, looking to see how people are “living marriage” in their everyday lives.

This line of inquiry might be pursued along two separate paths. First, what does the word “marriage” convey to us as individuals? In addressing this question, we look at marriage from a personal perspective—as a cultural and social practice in which we engage. Second, what does marriage convey to us collectively, as a society? From this perspective, we look at the functions that marriage performs on political, ideological, and structural levels—its construction as an institution in law and policy.

Related questions that might also be asked in making these inquiries include: How is it possible to have only one legal definition of marriage in a diverse, pluralistic, and secular society such as ours? Further, is marriage about behavior and functioning, or is it about legality and form? What does the legal designation of marriage foster, reform, facilitate, support, preserve, or protect?

Individual Meanings

Of course today to both individuals and society, marriage constitutes a legal relationship. The law defines some meanings of marriage for individuals. It is an exclusive and excluding institution—not everyone can enter. Through law the state establishes uniform standards for marriage, specifying who may marry whom and what formalities must be observed. In addition, law establishes the consequences of marriage at the dissolution of the relationship, be it by death or divorce. These consequences increasingly tend to be both relatively clear and susceptible to prediction by lawyers and others administering the system.

However, making predictions about the ultimate content and conduct of any given ongoing marriage—how a functioning marriage would look on a day-to-day basis from the perspectives of the individuals in the relationship—is far from a clear-cut task. Within the boundaries establishing entry into and exit from the institution, individuals are free to create a variety of meanings of marriage for themselves. This is because society through its laws has historically covered existing marriage relationships in a shroud of “privacy,” shielding them from direct state micromanaging and supervision, which allows the conduct of marriages to vary widely. This concept of privacy still affects the way we think about the relationship between the state and the marital family.

For ongoing marriages, the norms for state-family relations are those of nonintervention and minimal regulation. There are exceptions to this norm of privacy, but most of them are fairly recent innovations, such as increased legal recognition and response to domestic abuse and neglect and removal of the common-law interspousal tort immunity that precluded one spouse from recovering from the other for negligently inflicted injuries. Other regulatory interventions into ongoing family relationships, such as the rules in Trammel v. United States that preclude spousal testimony in criminal cases, are trivial from the perspective of concern with institutional dynamics (Olson 1983).

In other ongoing formal and legal relationships—the relationship between shareholders and corporations, for example—there is no expectation of privacy. Rights and obligations are defined, limited, and structured so that the range and nature of interactions are predictable and potentially publicly enforceable even without dissolution. By contrast, the issuance of a marriage certificate does not determine the legally mandated conduct of the partners to any specific marriage. Modern marriage does not come with a charter of incorporation, bylaws, and an oversight body such as the Securities and Exchange Commission to interpret what the union means to its participants and to monitor how those participants fulfill their designated responsibilities and duties within the relationship.

The law governing marriage leaves the day-to-day implementation of marriage to the individual spouses. It is the conduct of the parties that defines their marriage, giving it content and meaning. Ongoing marriages are individualized, idiosyncratic arrangements. Even if external articulations in cultural institutions, such as the media, or religious imagery, might influence how some understand what constitutes an ideal marital relationship, these norms are not mandated and coercively imposed on individuals by law.

The doctrine of “marital privacy” facilitates and reinforces the individualized nature of ongoing marriage. For purposes of the discussion here it is only necessary to know that the doctrine provides that, except in extreme situations, there are no mechanisms of legal enforcement available to resolve disputes over the terms of an ongoing marital relationship. This is true even when the terms sought to be enforced are those that are established by the state—imposed in its “marital contract.” So, while a wife might have a “right” to support under family law, she cannot enforce that right against her husband in a court of law (Weisberg and Appleton 2002). She may be able to use the doctrine of “necessaries” if she is able to persuade a third person, such as a merchant, to provide her with essential goods or services without her husband’s consent and knowledge. In those instances, however, the action is the merchant’s, not the spouse’s. The doctrine of marital privacy mandates that the marital relationship be ruptured through some form of dissolution proceeding such as the divorce process before the right can be enforced in court (Fineman 1999, discussing McGuire v. McGuire).

I argue that in practice and in form marriage is as diverse as the inhabitants of our contemporary, secular state. Our legal doctrine and structures create a vacuum—an absence of legally mandated-meaning—leaving open for negotiation the content of every individual marriage. Couples fill this vacuum with various nonlegal and sometimes conflicting aspirations, expectations, fears, and longings. Reflection on the prospect of varied possibilities for the meaning of marriage suggests the institution’s individualized and malleable nature.

Marriage, to those involved in one, can mean a legal tie, a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfillment, a social construct, a cultural phenomenon, a religious mandate, an economic relationship, the preferred unit for reproduction, a way to ensure against poverty and dependence on the state, a way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a commitment to traditional notions of morality, a desired status that communicates one’s sexual desirability to the world, or a purely contractual relationship in which each term is based on bargaining. Of course, this is not an exhaustive list—there are many additional potential meanings for marriage, perhaps as many meanings as there are individuals entering, or not entering, the relationship.

Societal Meanings

The contemporary meaning of marriage is no easier to pin down and ascertain if we look at it from a societal, rather than an individual or legal, perspective. It is true that there are more public justifications for marriage from society, but marriage also has multiple potential meanings to the society that constructs and contains it. In fact, the express, explicit reasons for marriage from society’s perspective have not changed all that much over time. Some are mundane, such as the need for a certain formal record keeping and for the assignment of responsibilities and rights among persons (e.g., to facilitate property transfers at death or identify persons responsible for payment of household debts).

There are some benefits for society expressed through its interest in marriage in regard to public health. The application for a marriage license can also be the occasion for mandatory health screening or counseling on genetics. It can be used for social engineering purposes, such as to supply information on the importance of marriage or to educate couples about the purported negative impact on their children, should they have any, from any future decision to separate and divorce.

Other societal justifications for marriage are more sweeping and abstract and, thus, perhaps also more questionable. Marriage, it has been argued, is an effective method of containing and harnessing (male) sexuality in the interests of the larger society (Cohen 1995). Sociobiologists (and some legal and policy analysts) view men as naturally polygamous and aggressive when it comes to sexual conquest. The expression of such “innate” qualities would result in violence toward other males and ultimate abandonment of women and their children by a mate in pursuit of new conquests (Thornhill and Palmer 2000). In assigning responsibility for a woman and her children to one man, marriage channels his socially acceptable sexual expression and frees the energy he might otherwise expend in sexual activity for socially productive work.

Such assertions present complex theoretical and empirical issues. Do men in this society at this time in history, given our existing sets of cultural, economic, and social relationships desire and need intimate connections with women and children? If so, is their need for such connection with women different from and more complicated than mere sexual desire? Can men care about children independent of those children’s role as carriers of genes into the next generation? If the answer to such questions is yes, then the male need and desire for intimate connections may not require the loose and tenuous bonds modern marriage supplies. In addition, it may be noted that even if men do not need intimate connection and the sociobiologists are right, it is not the end of the matter. The so-called male problematic—men abandoning women and children—need not be problematic if there is social and economic support for those women and children from other sources. If women and children do not need physical protection from predators in modern American society and have access to material and other goods, it may not matter if men leave them, at least not to their ultimate survival.

This mention of the needs of children brings to the fore an important and historic state interest in marriage. The institution of the marital family has been the traditional site for the socially essential reproductive process. Reproduction clearly entails important societal interests—society must reproduce itself and often creates policies that encourage women to have children. Society is also rightly concerned with the ways in which those children are educated and disciplined into productive work...