www.clarechambers.com Feminists have been pointing out the peculiarities of the marriage contract for at least a century and a half, but to no avail.2 Feminists have long criticised the institution of marriage.3 Historically, it has been a fundamental site of women’s oppression, with married women having few independent rights in law. Currently, it is associated with the gendered division of labour, with women taking on the lion’s share of domestic and caring work and being paid less than men for work outside the home.4 Symbolically, the white wedding asserts that women’s ultimate dream and purpose is to marry, and remains replete with sexist imagery: the father “giving away” the bride; the white dress symbolising the bride’s virginity (and emphasising the importance of her appearance); the vows to obey the husband; the minister telling the husband “you may now kiss the bride” (rather than the bride herself giving permission, or indeed initiating or at least equally participating in the act of kissing); the reception at which, traditionally, all the speeches are given by men; the wife surrendering her own name and taking her husband’s.5 And yet, despite decades of feminist criticism of the institution of marriage, the institution resolutely endures – though not without change. In the UK, for example, recent years have seen new laws allowing couples to marry in a wide variety of locations, where before they could marry only in certain religious buildings or register offices, and further changes are planned to allow marriages to take place anywhere. With this widening of locations comes a widening of possibilities for the marrying couple. In April 2005 Prince Charles, the heir to the throne, married Camilla Parker-Bowles, the woman with whom he had had an affair throughout his marriage to Diana, Princess of Wales – even though it had been widely believed that social and religious norms would mean the couple would never be able to marry. Most significantly of all, since 2005 the UK has allowed homosexual couples to register civil partnerships – one step short of marrying that confers almost identical rights. This move follows the legalisation of same-sex marriage or civil partnerships in the Netherlands, Belgium, Spain, Canada and parts of the USA.
What should egalitarians say about marriage, and particularly about reformed marriage? In this paper I consider two egalitarian approaches: feminism and liberalism. Feminists have been the main critics of the institution of marriage, and in the first part of the paper I discuss feminist criticisms. I argue that feminists attack marriage from several different angles, which can leave the feminist position somewhat confused. In particular, it is not possible to develop straightforwardly feminist reforms of marriage, since any proposed reforms meet some feminist concerns but exacerbate others. I argue that the way to reconcile feminist accounts is to understand the importance of marriage as both symbolic and institutional, an understanding which suggests that feminists should support the abolition of state-recognised marriage.
In the second part of the paper I consider liberalism. Although liberals do not usually criticise marriage I argue that they too should support its abolition. Since liberals are also egalitarians they should be swayed by feminist arguments but, additionally, the subset of political liberals should oppose state-recognised marriage as a violation of liberal neutrality.
In the third part of the paper I briefly discuss options for regulating intimate relationships in a society without state-recognised marriage. I advocate what I call piecemeal rather than holistic regulation, with the possibility of combining voluntary contracts with directive regulation.
My current position on marriage is that I am against it. … Politically, I am against it because it has been oppressive for women, and through privileging heterosexuality, oppressive for lesbians and gay men.6
In this quote, and in feminist argument more generally, we can identify two distinct strands in feminist critiques of marriage. Both are common, even common-sensical, and yet the two are not straightforwardly compatible. The first states that traditional marriage is bad because it oppresses women. The implication of this critique is that being married makes those who are married worse off, if they are women. The second critique is that traditional marriage is bad because, at least when same-sex marriages are forbidden, marriage privileges heterosexuality. The implication of this critique is that being married makes people, both men and women, better off: it provides benefits that are unjustly denied to homosexuals. At face value, these critiques seem in tension. If marriage oppresses at least some of its participants, why would homosexuals want to participate in it? On the other hand, if marriage ought to be extended to homosexuals because it confers privilege, what have feminists been complaining about all this time? And yet the two critiques are found together in the writings of many feminists. As the editors of a special edition of the journal Feminism & Psychology on marriage note, the articles “indicate the struggles that married feminists undergo in choosing to participate in an institution that is both the heart of heterosexual privilege and the heart of heterosexual women’s, lesbians’ and gay men’s oppression.”7 In what follows, I discuss these different strands separately. I divide each strand into what I call practical and symbolic effects. This distinction is not rigid but indicates the difference between ways in which marriage might affect individuals’ material or legal status and ways in which it consolidates or instantiates social norms or ideological values. My aim is to show that this four-way split in common feminist critiques of marriage explains why it can seem so difficult to develop a coherent feminist position and to be sure which sorts of reforms are progressive and which are reactionary. It explains, that is, the troubling ambiguities expressed by Merran Toerien and Andrew Williams, who label themselves a “feminist couple”. “In short,” they write, “we want to get married and we do not.”8 1.i: Marriage oppresses women: practical effects Perhaps the first feminist critique of marriage is that it has practical effects on women that make them worse off. Practical, empirical harms to women resulting from marriage include the contingent facts that marriages tend to reinforce the gendered division of labour, which itself means that women earn less and are less independent than men; that they reinforce the idea that women do most of the housework, even if they work outside the home, which saps their energies and dignity; and that domestic violence may be exacerbated by marital concepts of entitlement and ownership.9 In past incarnations of marriage, when the institution left women with few or no rights over their bodies, possessions, children and lives, practical feminist critiques were particularly salient. But, as Claudia Card insists, it would be wrong to think that practical harms have ceased as laws have changed: the progress embodied in the criminalization of marital rape and violence, she writes, “has been mostly on paper. Wives continue to die daily at a dizzying rate.”10 In general, these feminist critiques of marriage depend for their force and applicability on the laws of marriage in operation in any particular time and place, and on the social norms and sociological facts that accompany them. Thus Janet Gornick argues that truly feminist marriages must involve an egalitarian division of household and caring labour, and suggests state action to enable and encourage both partners to work fewer hours outside the home than is currently normal, devoting their remaining time to domestic labour.11 Such changes are not easy. Changes to marriage law in favour of gender equality are hard-won victories resting on the suffering of many women, and changes in social norms concerning domestic labour are extremely hard for even feminist women and would-be egalitarian couples to achieve.12 Nonetheless, we might think that these sorts of critiques can be overcome, that marriage can in theory be compatible with feminism, even if it is not compatible yet.13 Card is more sceptical. On her analysis, the very idea of marriage as a state-awarded license giving claims over another person’s property and person is profoundly problematic, for it exposes individuals to each other and puts in place legal barriers to separation. In doing so, marriage inevitably leaves its participants (largely its female participants) vulnerable to abuse. As she puts it:
For all that has been said about the privacy that marriage protects, what astonishes me is how much privacy one gives up in marrying. … Anyone who in fact cohabits with another may seem to give up similar privacy. Yet, without marriage, it is possible to take one’s life back without encountering the law as an obstacle.14 This issue of privacy is important and will be returned to.
1.ii: Marriage oppresses women: symbolic effects Within the general claim that marriage disadvantages women comes another set of critiques, this time based on its symbolic disadvantages rather than its practical effects. This time the argument is that marriage harms the position of women as a whole group, that it casts them as inferior. One way marriage might cast women as inferior is by constraining their appropriate options and ambitions. Thus Susan Moller Okin argues that “marriage has earlier and far greater impact on the lives and life choices of women than on those of men”15, with girls less likely to aspire to prestigious occupations or feel able to contemplate being happily independent. Anne Kingston also investigates the symbolic aspects of marriage, arguing that marriage continues to exert a grip on women who feel compelled not only to marry but also to conform to ever more costly symbolic standards.16 Pierre Bourdieu describes this form of symbolic effect as “symbolic violence”. Symbolic violence affects thoughts rather than bodies, and is inflicted upon people with their complicity.17 In other words, symbolic violence occurs when, through social pressures, an individual feels herself to be inferior or worthless.
One particularly pernicious form of symbolic violence that marriage enacts on women in contemporary western societies is the sense that they are flawed and failing if unmarried. This perception may be encouraged by pressure from peers, family, news reports, novels, television, film and self-help books. Research shows that many heterosexual women see single life as a temporary phase preceding marriage, and that being single for longer or when older is construed as sad and shameful, and at least partially the fault of the single woman herself.18 A particularly striking example of this sort of pressure can be found in The Rules, the self-help book that instructs women to secure marriage by following a strict set of guidelines such as not telephoning men, not describing their own sexual desires or asking them to be met, and not minding when men are angry. Feminists wishing to ignore, let alone criticise, The Rules are sharply admonished:
If you think you’re too smart for The Rules, ask yourself ‘Am I married?’. If not, why not? Could it be that what you’re doing isn’t working? Think about it.19 No matter what the laws of marriage are at the time, and regardless of whether marriages are characterised by a gendered division of labour, feminists will always criticise an institution that enacts this sort of symbolic violence on women. And, of course, the more women do in fact enter into marriage, the more normalising marriage becomes, and the more single women will (be encouraged to) lack self-esteem.
We might ask, however, whether it would matter if women felt pressure to enter into marriage if it were the case that the practical aspects of marriage were egalitarian. In other words, if marriage no longer disadvantaged women practically, would it matter if they were pressured to enter it symbolically? We might have a number of autonomy- and diversity-based objections to such pressure, which would apply to both women and men. But one way in which pressure to enter into even reformed marriages might particularly harm women (and thus be of particular concern to feminists) is through the simple fact that marriage has historically been an extremely sexist institution. Even if these historical oppressions have been reformed, such that wives are equal to husbands in all areas of law, marriage remains an institution rooted in the subjection of women. As Toerien and Williams argue, “marriage remains thoroughly tainted by being a long-standing buttress for the patriarchal domination of women.”20 This question, of whether the patriarchal history of an institution continues to taint its modern incarnations even if the explicitly patriarchal aspects have been reformed, is a vexed one.21 It seems obvious that institutions need not remain unjust forever, beyond the abolition of that which made them unjust in the first place. For example, cotton-picking and chimney-sweeping are jobs that were once done by slaves and children respectively, both unjust forms of labour. But those occupations do not remain unjust once slavery and child labour are abolished: the injustice does not outlive its concrete manifestation.
What makes marriage different is that it is an institution entered into largely because of the meanings it represents. Couples may marry so as to obtain various practical, legal or financial benefits, but a key aspect of most marriages is the statement the couple makes about their relationship. For the marrying couple and for society in general, the symbolic significance of marriage is at least as important as its practical aspects. This being the case, it is impossible to escape the history of the institution. Its status as a tradition ties its current meaning to its past. This feature of marriage makes the issue of what the institution really does represent, what meanings it carries, particularly pertinent.
1.iii: Marriage privileges heterosexuals: practical effects The other strand of feminist critique of marriage argues that marriages, as traditionally understood and permitted, privilege heterosexuality and discriminate against homosexuality. According to this line of critique, marriage benefits those who enter into it. Thus feminists, who favour gender equality and oppose discrimination on the grounds of both sex and sexuality, must oppose marriage as long as it is not open to same-sex couples. Heterosexual marriage would still be problematic, in other words, even if it became internally egalitarian.22 Many feminists thus campaign for the extension of marriage to same-sex couples, and some argue that extending marriage to homosexuals would utterly transform the institution. Margaret Morganroth Gullette writes that she was transformed from “a rebellious critic of the institution into a vocal and explicit advocate” as the result of “recognizing and honoring the growing desire of some of my lesbian friends and relatives to enjoy the protections that marriage now extends only to heterosexuals.”23 Once again, this line of argument can be separated into practical and symbolic strands. Practically, marriage might privilege heterosexuality if the law were structured so as to give married couples particular rights that are denied to unmarried couples. Such laws would discriminate against both homosexual couples and heterosexual unmarried individuals (whether single or in a relationship). Some of the rights of marriage are unambiguously advantageous to those who have them. In the UK, for example, spouses do not have to pay inheritance tax when inheriting each other’s property, unlike those in any other form of relationship.24 Similarly, Thomas Stoddard defends same-sex marriage “despite the oppressive nature of marriage historically, and in spite of the general absence of edifying examples of modern heterosexual marriage.”25 One key argument for Stoddard is the legal and customary advantages given to married couples, such as rights to pensions, health insurance and inheritance.26 It is important to note that the existence of tax and other benefits for married couples does not simply mean that unmarried individuals cannot access a benefit. When that benefit is a tax break or similar it imposes a measurable cost on those who do not receive it, since their tax burden will necessarily be higher than it would be if the benefit did not exist for others. In other words, the move from tax equality to tax breaks for the married cannot be Pareto-optimal: the benefit for the married can be achieved only at the expense of the unmarried.27 Since marriage is unjust in both its effects on women and its unavailability to homosexuals, it follows that those who are married are benefiting from injustice.
1.iv: Marriage privileges heterosexuals: symbolic effects Heterosexual-only marriage also has discriminatory symbolic effects. By recognising heterosexual marriage the state confers legitimacy and approval on such partnerships and denies it to homosexual ones. Thus Maria Bevacqua, a feminist lesbian, argues:
The exclusion of a portion of the population from a major social institution creates a second-class citizenship for that group. This is a humiliating experience, whether as individuals we feel humiliated or not.28 Bevacqua’s insistence that the humiliation is independent of the feelings of the humiliated emphasises the deeply symbolic nature of the institution. Marriage presents and represents a particular symbolic meaning that transcends individuals’ subjective self-understandings and experiences. Instead, it appeals to supposedly shared social understandings of value, understandings that can fail to respect minority and historically-oppressed groups. In particular, marriage reinforces the idea that the monogamous heterosexual union is the (only) sacred form of relationship.
Stoddard argues that marriage is “the centrepiece of our entire social structure” and notes that the Supreme Court has called it “noble” and “sacred”.29 Understandably he “resents” and “loathes” the fact that, according to the Court and US policy, homosexuals are not deemed able to enter into such noble and sacred relationships. Like Bevacqua, Stoddard believes that legalising same-sex marriage is a crucial egalitarian step, even if many homosexuals have no desire to marry. Indeed, Stoddard argues that same-sex marriages would also benefit heterosexual women, as they would serve the feminist purpose of “abolishing the traditional gender requirements of marriage” and thus divesting the institution of “the sexist trappings of the past.”30 1.v: Combining the critiques We are thus left with four feminist anti-marriage arguments: first, marriage’s practical oppression of participants (married women); second, its symbolic oppression of participants (women); third, its practical oppression of non-participants (homosexuals and unmarried heterosexuals); fourth, its symbolic oppression of non-participants (homosexuals and unmarried heterosexuals). The fact that these can come apart, that not all apply to all changes to marriage or positions on marriage, renders the debate exceedingly complicated.
Consider, for example, whether it would be desirable from a feminist perspective to legalise same-sex marriages. With the four feminist critiques in mind, we can see that the issue is by no means clear-cut. Heterosexual-only marriage is symbolically oppressive to women and to homosexuals. If homosexuals are allowed to marry, it is not clear whether its oppressiveness will rub off onto homosexuals, making them worse off, or whether the radical progressiveness of homosexuality will rub off onto marriage, making all women better off. As we have seen, Stoddard argues that progressiveness will prevail. Paula Ettelbrick, on the other hand, predicts the triumph of patriarchy and reaction: “marriage will not liberate us as lesbians and gay men. In fact, it will constrain us, make us more invisible, force our assimilation into the mainstream, and undermine the goals of gay liberation,” she writes.31 For Ettelbrick, these effects will not be combined to homosexuals, since “[g]ay liberation is inexorably linked to women’s liberation. Each is essential to the other.”32Card similarly argues that, although it is unjust that marriage is denied to homosexuals, the injustice of the institution as a whole means that lesbians and gay men should not fight for the right to marry – just as white women should not have fought for the (equal) right to be slave-owners.33 We can identify similar ambiguities in the issue of allowing homosexual couples to enter into civil partnerships but not marriages (as is the case in the UK). Such a policy has two advantages from the feminist point of view: first, homosexual couples are given access to the practical benefits of marriage and second, the idea of a civil partnership breaks away from the patriarchal symbolism of historically-oppressive marriage. Some feminists also argue that homosexual civil partnerships will benefit heterosexual women, whether married or not, by undermining both the hegemony of marriage and the idea that traditional gender roles must prevail within it. Indeed, one way of breaking away from the patriarchal history of marriage might be to offer civil partnerships to heterosexual couples as well as to homosexual ones (currently forbidden in the UK). The status of civil partnership would thus be doubly egalitarian: it would emphasise equality between heterosexual and homosexual couples since both could enter into it, and it would emphasise equality between men and women by breaking from patriarchal history and, presumably, by imposing equal terms on each member of the partnership.
However, the policy of distinguishing civil partnership from marriage also has disadvantages. The distinction may, counter to the previous argument, further entrench the gendered nature of marriage, since the idea that marriage must be between a man and a woman is reinforced, and with it traditional gender roles. Moreover, the fact that marriage symbolically oppresses homosexuals remains, since the discriminatory and hierarchical distinction between heterosexual and homosexual couples is unchanged if only heterosexuals may marry. Finally, such a move does nothing to challenge the hierarchy that marriage enacts between being partnered and being single, since rights are even more forcefully allied to the former and denied to the latter. Thus Celia Kitzinger and Sue Wilkinson argue:
By re-branding as ‘civil partnership’ a union that is otherwise identical to opposite-sex civil marriage, civil partnerships achieve the symbolic separation of same-sex couples from the state of ‘marriage’. They grant same-sex couples the possibility of legal conformity with institutional arrangements which formally recognize heterosexual intimacy while effectively excluding us from that very institution. The irony is that this separation is positively valued by many feminists and LGBT activists because it is the symbolism of marriage – and not the civil institution itself – that is the target of their critique.34 The attention that Kitzinger and Wilkinson draw to the symbolism of marriage is crucial. Symbolism is affected by law but is not directly under the control of the state. Whether the state recognises marriages, the benefits or burdens it imposes on married people, and the criteria for which sorts of couples may marry all contribute to the symbolism inherent in marriage. However, marriage may have symbolic effects that are not directly the result of current state policy, such as when marriage remains symbolically oppressive to women as a result of its patriarchal roots, or when women feel under great pressure to marry if they are to meet the expectations of family and friends or to feel self-esteem.
The question of how, from a feminist standpoint, we can best understand and interact with the institution of marriage is thus incredibly complex, and this complexity is mirrored in the diversity of feminist positions on the issue. One way of understanding this diversity is by returning to the idea that marriage is an institution.35 I have highlighted a puzzle, which is that feminists seem to think that marriage is both oppressive to its (female) participants and oppressive to its non-participants. These two oppressions seem in tension, but the tension might be resolved if we take a broader view. It is possible that, if the institution of marriage exists, it is better to be married than not, but that the very existence of the institution is oppressive. In other words, it might be that women are better off if marriage does not exist at all; but if marriage does exist they are better off married than unmarried. On this account juxtaposing marriage’s oppressiveness to women and to homosexuals fails to compare like with like: marriage is oppressive to women as compared to a world without marriage; it is oppressive to deny homosexuals marriage only insofar as that institution does exist.
This analysis fits with some of the examples of oppression just given. The symbolic pressure on women to marry, and the idea that they are worthless if unmarried, means that if marriage exists women are better off married than unmarried. This view is compatible, then, with the idea that it is harmful to be denied access to marriage if the institution exists and confers practical or symbolic benefits.
The natural implication is that both women and gay men are better off, and justice is served, if marriage ceases to exist as an institution. The ambiguities as to whether particular marriage reforms are feminist all apply to reforms that retain the institution. Abolishing the institution should satisfy all feminist critiques, and is thus a policy implication around which feminists should unite.