Vol. 16 No. 5 (May, 2006) pp.358-360
MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS, by Anita Bernstein (ed). New York: New York University Press, 2006. 255pp. Cloth. $40 ISBN: 0814799299.
Reviewed by Elizabeth Ellen Gordon, Department of Political Science and International Affairs, Kennesaw State University. Email: egordon [at] kennesaw.edu.
Demands for recognition of same-sex marriage have ignited some soul-searching in American society. The possibility of changing the definition of marriage from a union of one man and one woman to a union of two adults has engendered a broader discussion about the purpose of marriage and its relationship to government, law, and society. Sidling into the fray is Anita Bernstein’s book MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS, a collection of essays on official recognition of marriage that only indirectly deals with same-sex marriage. Instead, it considers why, how and even whether marriage in the United States should be dealt with through law and the intervention of the state. Half of the entries in the collection suggest that the institution of marriage as we know it should be abolished as a legal category, while the others argue that reform is a wiser course than abolition. The authors approach the subject from various disciplinary vantage points: law, history, anthropology, and political theory. As a launching point for classroom discussion, this volume would fit well in an upper-level course on law and society, and would challenge students to try to disentangle the threads of culture, religion, and law that make up the contemporary American concept of marriage.
Among those who advocate ending marriage as a privileged legal status are law professors Martha Albert Fineman and Linda C. McClain and founders of the Alternatives to Marriage Project, Dorian Solot and Marshall Miller. For Fineman, the justification for marriage as a legal category is to recognize, promote and protect care-giving relationships. Therefore, we should abolish the category of marriage and instead provide legal recognition and support for relationships of dependence through contract law. She argues that without the special category of spouses, connected individuals would relate to each other through tort and criminal law just as non-related persons do. For example, there would be no “domestic violence,” only unmodified “assault.” Building on Fineman’s arguments, Solot and Miller point out that many varieties of care-giving relationships already flourish and deserve equal treatment and respect under the law. McClain’s major theme is equality, both among different kinds of family groupings and also within families. While she disagrees with Fineman’s call for replacing marriage entirely with private contracts, she is uneasy with the rationales offered for governmental marriage promotion. Standard “marriage movement” arguments – that marriage promotes social health, civilizes men, and promotes the ideal environment for raising children – lead McClain to the [*359] conclusion that the government is not really promoting marriage per se, but traditional marriage (i.e., with traditional gender roles). As the vehicle for socializing the next generation of citizens, traditional marriage runs counter to what McClain sees as the path to a more egalitarian society.
The second half of the book features essays pointing out the pitfalls of abolishing legal marriage. Anthropologist Lawrence Rosen discusses the complex interconnections between marital arrangements and other aspects of culture. Removing the legal status of marriage would have a ripple effect, with consequences that are difficult to predict. Likewise, political scientist Mary Lyndon Shanley argues for civil unions regulated by the state in lieu of legally recognized marriage, but eschews the private contract model because marriage as it stands today serves social roles that go beyond the meaning for individuals involved in the relationship. Peggy Cooper Davis’ essay on marriage as the privilege of free people is probably the most provocative essay in the book. Drawing on America’s slaveholding past, Davis demonstrates how denial of the opportunity to live as recognized married couples was a vital element in the dehumanization of slaves. Their interdependence was not allowed to develop, their allegiances were not respected, and their families had no security or stability. Monogamous commitments were all but impossible in a situation where couples could be permanently split without warning and where (female) slaves’ sexuality was part of the “package” owned by masters. For former slaves, claiming the right to marry was part of claiming a social position, “a step in the direction of responsibility and honorable citizenship.” Considering such a history, Davis is wary of abolishing the legal recognition of marriage in a democratic society.
Taken as a whole, the book raises many thorny questions. A primary theme throughout this discussion is individual needs versus societal needs. Individuals, couples, and other affiliational groups may desire various marriage-like arrangements, which might or might not involve any of the following characteristics: monogamy, sexual intimacy, heterosexuality, childrearing, economic equality, permanence, and religious significance. When one considers the various combinations of these dimensions (e.g., why not a temporary polygamous child-rearing commune, or a faith-based asexual economically dependent couple of the same gender?), the possibilities for relationships may seem at turns liberating or dizzying.
American political culture features a strong current of libertarianism that leads some to argue that personal fulfillment could arise from many different kinds of intimate relationships which are nobody’s business but the members of these family-like affiliations. But marriage is not only a personal arrangement; it is also a social institution. One might argue that as long as marriage promotes socially desirable outcomes such as stable families, shared childrearing, and organized inheritance, why couldn’t monogamy, heterosexuality, or some other features of marriage as we generally envision it be optional? On the other hand, is legal [*360] equality among all private care-giving relationships practical or even possible in an ordered, interconnected society? Are there reasons beyond mere bigotry to prefer some family arrangements over others? A tension exists between the libertarian impulses underlying the diversity arguments and the welfare state support requirements of these arrangements. Marriage can be seen as a legally enforced and socially accepted private safety net, the basis of familial care-giving units. If it is proper for the state to provide social and material support for families when the private safety net fails, does society then not have an interest in promoting familial arrangements that are demonstrably likely to be functional and self-sustaining (without favoring a priori monogamous, heterosexual unions)? Perhaps only in an atomized society with no provision of social services would the state be truly impartial regarding the various kinds of unions it legally recognizes.
While none of the authors in this collection argue that marriage should be abolished as a religious or cultural institution, Bernstein observes in the Afterword that marriage abolitionists ignore what reformers know from experience: “when American law stops recognizing a particular status, that status goes into decline in day-to-day life, not just in legal form.” Empirically, even with legal recognition, it is hard to deny that marriage is already under stress. In the long run, neither law, nor culture, nor religion in isolation can sustain the American version of marriage in a healthy form. Marriage without law will collapse. Marriage without culture (and for some, religion) will lack meaning and value. Even as Rosen provides examples of exotic non-marriage arrangements in foreign cultures, the reader is reminded of how much our own cultural expectations and interpretations create the institution of marriage in the contemporary United States. Those cultural elements, McClain argues, constitute the baggage of gender inequality and must be substantially re-envisioned. On the other hand, Bernstein argues that the cultural meanings are what the civil unions currently available to same-sex couples in Vermont lack: “a connection to symbols and traditions derived from marriage in the past.” Bernstein goes on to say that the state sponsoring marriage feels different from the state merely sponsoring entitlements because “the force of marriage lies in the fact that it combines legal privileges and duties with an extralegal, socially understood set of conventions.” So perhaps it does come back in the end to the movement for same-sex marriage. Like the slaves in America’s past, a group of people excluded from the right to marry see it as more than an economic benefit or legal convenience, but also as “a badge and incident of democratic freedom,” as Davis describes it. The fact that a substantial portion of the gay and lesbian community is willing to fight so hard to achieve the legally and socially recognized status of marriage – and not be satisfied with civil unions as a second class alternative – may be the strongest evidence seen in years for the vitality and relevance of marriage in our polity.
© Copyright 2006 by the author, Elizabeth Ellen Gordon.