Should State-Sanctioned Marriage Exist at All?

Many legal theorists agree that some sort of change to the legal institution of marriage must occur, but there is much disagreement and debate about what those changes should entail. Because many Americans are excluded from the benefits, rights, and responsibilities currently associated with marriage, some theorists advocate allowing more people access to the institution. Other theorists, however, question whether marriage should be a legal institution at all. They question the purpose of having state-sanctioned marriage and argue that the goals of civil, as opposed to religious or otherwise private, marriages would be better achieved through an abolition of the legal institution of marriage. Indeed, if the state wants to strengthen, improve the quality of, and enhance the longevity of families, it must remove itself from the business of defining what family is. Only then will the benefits, rights, and responsibilities currently associated with marriage be available to all types of familial setups.

There are theorists, though, who think that marriage should remain unchanged. Reasons exist, they argue, to keep marriage as a conjugal union between one man and one woman, and they believe it is necessary for the state to endorse the concept of the nuclear family. Sam Schulman, a contemporary conservative commentator, writes:

By definition, the essence of marriage is to sanction and solemnize that connection of opposites which alone creates new life. (Whether or not a given married couple does in fact create new life is immaterial.) Men and women can marry only because they belong to different, opposite, sexes.[1]

This argument does not take into consideration, however, the undeniable fact that the legal and social definitions of marriage have not only evolved and changed throughout human history, they have evolved and changed over the much shorter course of American history, as well. The institution has shifted from placing an emphasis on property to placing an emphasis on love and companionship. It has also shifted to include mixed-race couples, an idea that many conservatives during the Civil Rights Movement insisted was contrary to the definition of marriage.[2] Furthermore, the ability to obtain no-fault divorces is a relatively new inclusion into the institution. So the argument that there exists an inherent definition of marriage does not sufficiently take into account the definitional evolution of marriage.

There are also religious arguments for keeping marriage unchanged, especially in light of the contemporary debate over same-sex marriage. A passage in Leviticus states, "You shall not lie with a male as with a woman; it is an abomination."[3] And for those who would argue that the Old Testament is no longer relevant to Christians, a passage in the New Testament reads, "The men...gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error."[4] But as philosopher John Corvino notes, there are many passages in the Bible to which modern Jews, Christians, and Muslims no longer adhere. Christians eat pork products, for instance, despite a passage in Leviticus banning this practice. Also, the Bible-both the New and the Old Testaments-provides guidelines for the legal practice of slavery and indentured servitude, yet modern religious people would all agree that these practices are no longer moral.[5] The point of this rebuttal is not to challenge the basis of religion or to bring into question God's infallibility. Rather, it simply needs to be acknowledged that quoting Scripture does not necessarily provide an infallible argument-it is essential to discover why certain rules exist in the Bible. Life was quite different in Biblical times and rules pertaining to homosexuality may not apply to society today.

But more than this, no matter one's own religious judgment of what marriage is, there exists a separation of church and state in American law. Therefore, it would be unconstitutional to use a religious justification to defend a particular legal definition of marriage. In fact, having marriage as a legal institution at all may be inconsistent with the establishment clause of the first amendment. Furthermore, state involvement in institutions often creates burdensome regulations and obstacles. As Rabbi David Saperstein quips:

If the Ten Commandments are inscribed on the hearts of our children by our families and our houses of worship, then they can make a difference. But if they are to be posted as visual Muzak, as backdrops in classrooms [6]

As I will demonstrate in this paper, state involvement in the institution of marriage does nothing but create troublesome limitations. Marriage will thrive only after the state stops regulating its definition.

The last argument for keeping the current definition and status of marriage unchanged is presented by Maggie Gallagher in her article titled "Rites, Rights, and Social Institutions: Why and How Should the Law Support Marriage." While part of her argument does rest on the assumption that the definition of marriage is inherently a union between one man and one woman, her argument goes further than Schulman's. Rather than limiting her argument to a simple matter of inherency, she asserts that there are valid reasons why the state defines marriage as a conjugal union between one man and one woman. Firstly, marriage is essential to integrating men into a lifestyle conducive for reproducing the nuclear family; secondly, marriage is a public sign of commitment that signals each partner's intentions; and thirdly, she contends that children are better off being raised by their own two-one male and one female-parents.[7] Gallagher argues that for these reasons the current definition and status of marriage should remain unchanged.

There are problems with her assertions, though. Her argument that marriage regulates men's lifestyles and propagates the nuclear family is wrought with negative gender implications. Needless to say, there exist many arguments against supporting an institution designed to regulate contemporary gender norms, but this is unfortunately not a discussion within the scope of this paper.

Gallagher's argument that marriage acts as a public display of commitment is problematic, as well. While her premise may be true-that one reason many people get married is to make a public commitment-the problem with this part of her argument is twofold. First, if the legal institution of marriage were abolished, religious or otherwise private marriage ceremonies could still act as that public sign of commitment. There is nothing inherent in the state-sanctioning of marriage that increases the meaning of the display of commitment. Second, Gallagher goes on to write, "The absence of the intent to marry does still carry a clear signal, which...is that at least one partner does not intend a permanent, faithful relationship."[8] This is at least misleading, if not plain wrong. There are many reasons why a particular couple may not "choose" to marry, including the refusal of one's partner to marry, financial limitations, social or religious constraints, a moral opposition to marriage, and one's sexuality or choice of partner(s).[9] It is wrong to assume that simply because a couple is not married they do not intend the same level of commitment than if they were.

Finally, Gallagher's third assertion-that children are better situated in nuclear families-begs the question of why that is the case. William N. Eskridge, Jr., while not specifically addressing this question, provides a more than adequate framework for responding to Gallagher's concern. Eskridge cites a 1998 study by Dr. Lawrence Kurdek that found same-sex relationships to be of the same or even better quality than heterosexual ones, yet the rate of separation for these couples was higher. Kurdek speculated that this higher separation rate was caused by a lack of social and legal support for these couples.[10] Eskridge uses this study to argue that legal and social support for same-sex couples would increase the quality and longevity of these relationships. The same framework can be used to refute Gallagher's claims. If both society and the government gave their support to children not being raised by two biological parents, the quality of these children's lives would surely increase. Policies designed to favor nuclear families drastically and irresponsibly undermine the wellbeing of other familial setups.

There is also a problem, though, with the argument that Eskridge, a proponent of including same-sex couples in marriage rather than abolishing state-sanctioned marriage, puts forth. He supports the state-sanctioning of marriage as a way to enhance the quality and longevity of relationships. Yet the flaw of this thinking is in its very definition. If the state only supports families headed by two married, conjugal adults, a whole variety of other familial setups are left out. If the state wants to strengthen, improve the quality of, and enhance the longevity of families, it must remove itself from the business of defining what family is so that all familial setups can take advantage of the benefits, rights, and responsibilities currently associated with marriage.

Nancy D. Polikoff, a leading queer theorist, argues exactly this. She writes:

The economic benefits lesbians and gay men would obtain by marrying, such as the ability to be covered by a spouse's health insurance plan, help primarily those who already enjoy relative economic security: in order for an employee's partner to claim a right to health benefits, the employee must be working at a job providing those benefits. We should instead focus our efforts...on obtaining economic security and adequate health care for everyone, regardless of marital status or sexual orientation.[11]

The goal of creating marriage incentives by associating certain rights with it-such as the above example of health insurance-is shortsighted considering that many Americans do not have access to even fundamental rights. The only way to fix this shortsightedness is to disassociate legal benefits, rights, and responsibilities from marriage-in other words, abolishing the legal institution of marriage.

Despite what their opponents may claim, the fact that there may be social benefits to having religious or otherwise private marriage ceremonies is not lost on most of the theorists who advocate its legal abolition. In fact, many are quite attuned to those benefits and believe that greater social acceptance of non-traditional families will only serve to increase and enhance those benefits. The state-sanctioning of marriage prevents many families from thriving, and this, in turn, decreases the social benefits that strong families and strong relationships foster and maintain.

Another problem with the state-sanctioning of marriage is very similar to what Nancy Polikoff argues. If the benefits, rights, and responsibilities guaranteed by marriage are closely studied, it becomes apparent that there are specific purposes for each one, and the state-sanctioning of marriage actually prevents those purposes from being completely fulfilled. Even with the inclusion of same-sex couples, there will still be myriad familial setups that are left out of receiving those benefits, rights, and responsibilities.

Caroline A. Thomas, an advocate for the state-sanctioning of cohabitation rather than marriage, emphasizes the idea that precluding non-marriage-based familial setups from marriage-related rights is arbitrary and actually contrary to the goals of those rights. For instance, when examining inheritance laws for married spouses Thomas writes:

The objective of the legislation, presumably, is to provide financial support to persons who were dependent on the deceased, to reduce reliance on public resources, and to ensure that those close to the deceased receive a share of his/her estate. The reason for excluding [unmarried] cohabiting couples is unclear, and seems contrary to legislative aims.[12]

This same logic applies to most, if not all, of the benefits, rights, and responsibilities that are currently associated with marriage. Winifred Holland, another advocate of state-sanctioned cohabitation, provides another example. Her case comes from Canadian law and explores benefits paid to the surviving spouses of car accident victims. A Canadian Supreme Court justice defined the purpose of the legislation to be "the sustaining of families when members were injured in an automobile accident."[13] But the law is written to only award benefits to married spouses of the victims. Is there a valid reason that this legislation does not benefit non-marriage-based families? In fact, there is not. Holland summarizes the remainder of the justice's ruling:

Marital status was not a reasonable indicator of the recipient of benefits. In choosing marriage, the legislature had chosen a criterion that was, at best, only collaterally related to the legislative goal, and it had the effect of depriving a substantial number of deserving candidates of the receipt of benefits. Better tests were available.[14]

Canada has enacted cohabitation and domestic partnership laws to combat this problem, which is why there is vast legal literature on the subject. Unfortunately in the United States this discourse is still only occurring at the theoretical level. But the same principles apply in both countries' legal systems. Restricting rights to only married couples prevents the legislative goals from being completely fulfilled because many families will be excluded from taking advantage of them. Assuring fundamental rights for all people, and making sure that family-related legislation is enacted in ways that make it possible for all familial setups to take advantage of them, is essential to strengthening, improving the quality of, and enhancing the longevity of all families.

One possible rebuttal to this argument is that because all couples have the option of marrying, it is not the responsibility of the government to include unmarried couples in its family-related legislation. For instance, in the previous example in which an unmarried partner did not have access to inheritance rights, it is the fault of the couple for choosing not to marry. If they had married, the surviving partner would not be faced with this hardship. Therefore, so the argument goes, it is not the fault of the government for not including unmarried cohabitants in its inheritance laws, but rather it is the fault of the couple for choosing not to marry. This assumes, however, that it is always a simple choice for couples to get married. To the contrary, as it was previously mentioned, there are a number of reasons why the decision not to marry may very well be out of one's control. And even if this is not the case, the decision of whether or not to marry is an extremely personal one, and citizens should not be penalized for their choice.

Caroline Thomas cites a number of studies that offer explanations as to why many committed couples choose not to marry. One study by Gibson-Davis, Edin, and McLanahan discovered that many low-income parents choose not to marry because of financial instability and a hyper-valuation of the sanctity of marriage.[15] These parents want to wait until they can "do it right," which means finding economic and emotional stability before entering into what they consider to be a sacred institution. State-sanctioned cohabitation or domestic partnerships would allow these parents to take advantage of the benefits, rights, and responsibilities currently associated with marriage without prematurely rushing into matrimony. This would give these parents some degree of economic stability, which could greatly aid their child-rearing capabilities. Some opponents of this would argue that the state supports only marriage because it has an interest in promoting stable families, and these other familial situations are not stable. But having access to the benefits, rights, and responsibilities presently associated with marriage would most likely create stability where it currently does not exist. Moreover, with the ability to obtain no-fault divorces, entering into a marriage does not provide any greater guarantee of stability than would a cohabitation agreement or domestic partnership.

Also, many stable families are not headed by married parents simply because the couples do not have that option.[16] Same-sex couples, polygamous unions, and non-conjugal relationships-such as two sisters living together to jointly raise their children-are three examples of familial setups that are barred from marriage. So even when same-sex marriage is fully recognized and supported by the state, there will still be families that are unjustly left behind. This exploration of the marriage "choice" supports Nancy Polikoff's theory that the benefits, rights, and responsibilities currently guaranteed by marriage should be disassociated with the institution in order to secure fundamental rights for all citizens.

There are theorists who agree that rights should be more widely accessible, but they disagree that the solution is the abolition of the legal institution marriage. Rather, these theorists argue for a more inclusive definition of marriage, usually in terms of same-sex couples. Amitai Etzioni, a communitarian who believes in the state-sanctioning of marriages and civil unions, writes that to abolish marriage, "is to burn down the house to accommodate some new tenants." He continues, "But they would have no house either."[17] His argument is appealing. Perhaps if the state were to extend marriage to even more types of relationships the worthy goal of making rights more widely accessible could be achieved without having to abolish the legal institution. But no matter how much the state opens the definition of marriage there will always be some group missing or marginalized. The only way to solve this problem is to stop the government from defining what marriage is.

Martha Ackelsberg and Judith Plaskow articulate this point well in their article "Why We're Not Getting Married." "Focusing on the right to marry," they posit, "perpetuates the idea that these rights ought to be linked to marriage...The [current status quo] marginalizes those who are single, single-parents, widowed, divorced or otherwise living in non-traditional constellations."[18] Viewing the debate in this way seems to provide an adequate response to Etzioni. Abolishing the legal institution may destroy 'the house,' but it will not result in 'homelessness.' Rather, the benefits, rights, and responsibilities currently associated with marriage would be available to everyone who needs or wants them through other legislation-the state could provide free health care to all its citizens; inheritance rights and hospital visitation privileges would not be limited to two married, conjugal adults; tax-related benefits would not marginalize single-parents; etc. And again, religious or otherwise private marriages would still exist for those couples wanting them.

One aspect of this debate that is often overlooked is the role that conjugality should have in deciding who is eligible for certain rights. Does conjugality make a particular relationship more deserving of protection and support? How would a government go about measuring a relationship's conjugality? And for that matter, would actual marriages even pass state tests to determine conjugality? Caroline Thomas notes that conjugality is not a characteristic of a relationship that is easily identifiable by the state.[19] After all, an elderly couple no longer engaging in sexual practices would still be considered conjugal. The Canadian Supreme Court, when establishing conjugality, uses factors such as, "whether or not the parties lived under the same roof, engaged in sexual relations, shared meals together, bought gifts on special occasions, participated in social and community activities together, or were viewed by the community as a couple."[20] It is interesting that, because not all of these conditions need to be met in order to establish conjugality, many non-sexual relationships-such as two sisters living together and jointly raising their children-would fall under the category of conjugal according to this definition. Furthermore, Brenda Cossman and Bruce Ryder quip, "it is tempting to speculate how many marriages would fail to qualify as 'marriage-like' if they were subjected to similar scrutiny."[21] It does in fact seem quite unreasonable to expect the state to successfully identify conjugality in relationships.

But even if the state did create a test that successfully established conjugality, should it be taken into consideration? Do conjugal relationships differ in any significant, non-trivial ways that would make them more deserving of protection and support? Cossman and Ryder posit, "It is not clear how the details of cohabitants' sexual lives are relevant in any way to the attainment of legitimate state objectives."[22] Think back to the examples previously mentioned about specific marriage-related rights. If one partner of a non-conjugal relationship dies, is the surviving partner less entitled to inheritance rights than if their relationship were conjugal? If the purpose of inheritance rights is to protect and preserve families after one member dies, it is illogical that non-conjugal relationships would be excluded from this protection. As Thomas phrases it, "Can one assume that non-conjugal relationships are less deserving of protection, or that their function in...society is less valuable?"[23] And again, for those who would argue that marriage is state-sanctioned in order to support stable families, it is wrong to presume that non-conjugal relationships do not provide stability. The example of two sisters living together to jointly raise their children is a lucid example of a non-conjugal relationship that results in more stability than would exist if they lived on their own.

There are different solutions that fit the premise of abolishing the legal institution of marriage. State-sanctioned cohabitation, domestic partnerships, civil unions, and no state-sanctioned adult-adult relationships at all are a few of the possibilities. The key to figuring out a new system is in Ackelsberg's and Plaskow's article. If we question why these benefits, rights, and responsibilities are associated with marriage, it becomes clear that the connection is arbitrary. And so, the solution is to study all of the benefits, rights, and responsibilities that are currently associated with marriage and discover the aim of each. Only after this is done can the government and society find ways of guaranteeing those rights in ways that better serve their intended purposes. This includes the purpose of providing stability for families. But, just as with the legal and economic aims, the goal of stability will be more fully achieved with an abolition of the legal institution of marriage. Firstly, no matter what happens to the legal aspects of marriage, it is unlikely that religious or otherwise private marriage ceremonies will cease. Secondly, while this is not the case under the current status quo, if the government were to stop defining what family is, all, as opposed to some or many, of the myriad familial setups in America would be able to take advantage of and contribute toward increased stability.

BIBLIOGRAPHY

Ackelsberg, Martha, and Judith Plaskow. "Why We're Not Getting Married." Common Dreams. http://www.commondreams.org/views04/0601-10.htm (accessed November 10, 2006).

Corvino, John. "Why Shouldn't Tommy and Jim have Sex? A Defense of Homosexuality." In Contemporary Moral Problems, edited by James E. White, 8th edition, 266-77. Belmont, CA: Thomson Wadsworth, 2006.

Cossman, Brenda, and Bruce Ryder. "What is Marriage-Like Like? The Irrelevance of Conjugality." Canadian Journal of Family Law 18.2 (2001): 269-326.

Eskridge, Jr., William N. "The Relational Case for Same-Sex Marriage." In Just Marriage, edited by Mary Lyndon Shanley, 58-62. New York: Oxford University Press, 2004.

Etzioni, Amitai. "A Communitarian Position for Civil Unions." In Just Marriage, edited by Mary Lyndon Shanley, 63-6. New York: Oxford University Press, 2004.

Gallagher, Maggie. "Rites, Rights, and Social Institutions: Why and how should the Law Support Marriage?" Notre Dame Journal of Law, Ethics & Public Policy 18.1 (2004): 225-41.

Holland, Winifred. "Intimate Relationships in the New Millennium: The Assimilation of Marriage and Cohabitation?" Canadian Journal of Family Law 17.1 (2000): 114-68.

Holy Bible: Revised Standard Version. New York: Oxford University Press, 2004.

Polikoff, Nancy D. "We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not 'Dismantle the Legal Structure of Gender in Every Marriage'." Virginia Law Review 79.7 (October 1993): 1535-50.

Saperstein, David. "The Convention Daily - Day 4." Union of Reform Judaism. http://www.urj.us/orlando/cdaily/day4.html (accessed on December 16, 2006).

Schulman, Sam. "Gay Marriage-and Marriage." In Contemporary Moral Problems, edited by James E. White, 8th edition, 285-93. Belmont, CA: Thomson Wadsworth, 2006.

Thomas, Caroline A. "The Roles of Registered Partnerships and Conjugality in Canadian Family Law." Canadian Journal of Family Law 22.2 (2006): 223-57.

Wolfson, Evan. Why Marriage Matters: America, Equality, and Gay People's Right to Marry. New York: Simon & Schuster, Inc., 2004.

[1] Sam Schulman, "Gay Marriage-and Marriage," in Contemporary Moral Problems, ed. James E. White, 8th ed. (Belmont, CA: Thomson Wadsworth, 2006), 290.

[2] Evan Wolfson, Why Marriage Matters: America, Equality, and Gay People's Right to Marry (New York: Simon & Schuster, Inc., 2004), 69.

[3]Holy Bible: Revised Standard Version (New York: Oxford University Press, 2004), Lev. 18:22.

[4]ibid., Rom. 1:27.

[5] John Corvino, "Why Shouldn't Tommy and Jim have Sex? A Defense of Homosexuality," in Contemporary Moral Problems, ed. James E. White, 8th ed. (Belmont, CA: Thomson Wadsworth, 2006), 274-5.

[6] David Saperstein, "The Convention Daily - Day 4," Union of Reform Judaism, http://www.urj.us/orlando/cdaily/day4.html.

[7] Maggie Gallagher, "Rites, Rights, and Social Institutions: Why and how should the Law Support Marriage?" Notre Dame Journal of Law, Ethics & Public Policy 18.1 (2004): 233 and 236.

[8]ibid., 236.

[9] Caroline A. Thomas, "The Roles of Registered Partnerships and Conjugality in Canadian Family Law," Canadian Journal of Family Law 22.2 (2006): 230.

[10] William N. Eskridge, Jr., "The Relational Case for Same-Sex Marriage," in Just Marriage, ed. Mary Lyndon Shanley (New York: Oxford University Press, 2004), 60.

[11]1536.

[12] Caroline A. Thomas, "The Roles of Registered Partnerships and Conjugality in Canadian Family Law," Canadian Journal of Family Law 22.2 (2006): 228.

[13] Winifred Holland, "Intimate Relationships in the New Millennium: The Assimilation of Marriage and Cohabitation?" Canadian Journal of Family Law 17.1 (2000): 132.

[14]ibid., 132.

[15] Caroline A. Thomas, "The Roles of Registered Partnerships and Conjugality in Canadian Family Law," Canadian Journal of Family Law 22.2 (2006): 232.

[16] Caroline A. Thomas, "The Roles of Registered Partnerships and Conjugality in Canadian Family Law," Canadian Journal of Family Law 22.2 (2006): 232-3.

[17] Amitai Etzioni, "A Communitarian Position for Civil Unions," in Just Marriage, ed. Mary Lyndon Shanley (New York: Oxford University Press, 2004), 64.

[18] Martha Ackelsberg and Judith Plaskow, "Why We're Not Getting Married," Common Dreams, http://www.commondreams.org/views04/0601-10.htm.

[19] Caroline A. Thomas, "The Roles of Registered Partnerships and Conjugality in Canadian Family Law," Canadian Journal of Family Law 22.2 (2006): 236-40.

[20]ibid., 236.

[21] Brenda Cossman and Bruce Ryder, "What is Marriage-Like Like? The Irrelevance of Conjugality," Canadian Journal of Family Law 18.2 (2001): 288.

[22]ibid., 297.

[23] Caroline A. Thomas, "The Roles of Registered Partnerships and Conjugality in Canadian Family Law," Canadian Journal of Family Law 22.2 (2006): 239.