Today the Supreme Court will consider the constitutionality of California’s ban on same-sex marriage, and arguments tomorrow will challenge the Defense of Marriage Act. Philosophy Professor Alison Reiheld considers multiple definitions of “marriage equality” here.
The struggle for—and against—marriage equality in the United States has generally taken marriage to be an unalloyed good. But is it?
Certainly, our society provides many rights and privileges to the married which do not accrue to those who remain in long-term partnerships without marriage. Indeed, there are two cases before the Supreme Court of the United States right now, one on the constitutionality of California’s Proposition 8 (a voter referendum which affirmed traditional heterosexual marriage) and one on the constitutionality of the federal government’s Defense of Marriage Act (DOMA).
The latter case, United States v. Windsor, was brought by Edith Windsor who married her long-time lesbian partner in Canada after decades of coupled bliss. Because of DOMA, the federal government did not recognize her marriage and she was assessed over $360,000 in estate taxes which she would not have had to pay had her spouse been a man. Windsor won a Federal Appeals court case in 2012 but the case has now been appealed to SCOTUS by the federal government.
Concern isn’t only manifesting in voter referenda and the courts, however. In solidarity with same-sex couples unable to access the rights and privileges that accrue to the married, some heterosexual couples whose unions would be recognized by both church and state have put off marriage. In Cook County, Illinois—within which Chicago is located—the #1 reason for straight couples to register for civil unions was just such solidarity.
But consider for a moment: is marriage naught but good? Society assigns rights and privileges to the married not open to others, but what of its burdens? I am not making an argument against marriage, here. I am, myself, happily hitched. But a more nuanced view of marriage will acknowledge both its merits and deficits. By deficits I do not mean the fact that one is now committed to a new entity, the marriage, as well as to the one married. These are the responsibilities which are the flip-side of the rights and privileges. I mean, instead, the historical aspects of marriage which make it clear that it has not always been an unalloyed good for both parties, and sometimes has not been good for either. I believe a closer look will reveal that the notion of “marriage equality” has been too narrow.
In 2011, Melissa E. Murray of the UC Berkeley School of Law published an article in the Columbia Law Review called “Marriage as Punishment.“ In this piece, Murray looks at the historical uses of marriage as a form of “state-imposed sexual discipline.” She notes that marriage was historically used as a punishment for men found guilty of seduction, a crime which involved corrupting a sexually virtuous female. Men could not be prosecuted if they later married the woman in question. Indeed, marriage would sometimes be imposed on perpetrators. As Murray says, “marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.” Murray herself makes much the same point I am urging when she says that our current discourses of marriage are “naive and incomplete,” failing to acknowledge that putting one’s relationship into the domain of marriage puts it into the “disciplining domains of the state.” In a little bit, we will look at a survey on attitudes toward marriage and family which indicates that many folks are resisting the structure of marriage as what anthropologists call “social control”, as the only right way to go about sexual behavior and creating a family. Before we get there, however, I’d like to consider a different critique of the nature of marriage.
One of the great criticisms of marriage to come out of feminist theory is Susan Moller Okin’s “Vulnerability by Marriage” from her book Justice, Gender, & the Family. In this piece, Okin takes the classic feminist notion that the personal is political and considers the family as a site of justice or its negative counterpart, injustice. For Okin, the issues of justice in families are clear: “the question of who earns the family’s income, or how the earning of this income is shared, has a great deal to do with the distribution of power and influence within the family, including decisions on how to spend this income. It also affects the distribution of other benefits, including basic security.” As Okin puts it, women become more vulnerable in getting married than in not doing so. The role of wife means they must “try to attract and keep the economic support of a man, to whose work life they will be expected to give priority.” In addition, once married, “they are rendered vulnerable by the actual division of labor within almost all current marriages.” This remains true, though it is improving.
Okin goes on to argue that women are also disadvantaged at work—not just within the family—“by the fact that the world of wage work, including the professions, is still largely structured around the assumption that “workers” have wives at home.” Consider meetings scheduled for late afternoon which are expected to go on until the business is done. This complicates child care immensely. Consider project deadlines which require periods of intense labor well over and above standard work hours. All of these assume a spouse at home, and assume a spouse who carries the traditional traits of a “wife” even if that spouse is in a same-sex marriage or is a husband in a heterosexual marriage. Indeed, married women with children are still to this day less successful than single women. And that is if they choose to work outside the home. As Okin points out, women “are rendered far more vulnerable if they become the primary caretakers of children, and their vulnerability peaks if their marriages dissolve and they become single parents.” Because of these factors, and because of the persistence of these factors over time even though they are improving, women are far more vulnerable to the end of a marriage than are men. Should divorce occur, both women who have worked outside the home and those who have not are more vulnerable to the loss of shared income. Much has changed since Okin wrote 30 years ago. But marriage still makes women, especially if children issue from the marriage, more vulnerable than men. Much social science research can be done on whether or not such injustices are perpetuated within same-sex marriages. If so, they would fall on whomever stays home, on whomever puts their career second. In my household, this is my husband since my academic career required long-term commitments on both our parts to my studies and then to moving wherever the job is. But statistical generalizations indicate that in heterosexual marriages, it is still the wife upon whom these injustices fall.
I do think Murray’s points about marriage as a locus for social control of sexual behaviors, and Okin’s points about injustice within marriage, are worth considering. So what to do? One could reject marriage altogether. One could ignore gendered injustice within marriage, especially when it comes to considering same-sex marriage. Or one could work within one’s own marriage and on the workplace to make sure that spouses and employers both do not assume that the employee’s work life will take precedence over the spouse’s, regardless of the gender of each spouse.
I am not the only one who thinks that marriage deserves critical inspection. While many folks who refuse marriage and instead choose civil unions are doing so out of solidarity with same-sex couples unable to access marriage, others—gay and straight alike—are refusing marriage because of its constraints. According to a 2011 article on CBS News about a report from the Pew Research Center and a passel of similar news stories in other venues, marriage rates in the U.S. have dropped to a record 51 percent. In 1960, 72 percent of U.S. adults ages 18 and older were married. The age of first marriage is also at its highest ever: 26.5 for women and 28.7 for men.
While one possible cause is the cost of a wedding in this economy—there was a sharp drop in marriages between 2009 and 2010—the age trends lead me to think that something else is going on. According to the Pew report, adults may just be delaying marriage. But they also may be “abandoning the tradition” altogether. The Pew report data alone does not help to distinguish this. However, CBS noted that a separate 2010 survey found that nearly 40% of responders said marriage is “becoming obsolete” even as 60% would still like to someday get married. The Pew report, itself, found that “by emphatic margins, the public does not see marriage as the only path to family formation.” A whopping 86% of respondents say a single parent and child constitute a family, 80% say a family could also mean an unmarried couple living with a child, and 63% say that “family” could include a gay or lesbian couple raising a child regardless of marriage. Perhaps correspondingly, Pew found that 44% of all adults say they have cohabited at some point in their lives. Only 2/3 of those who did so said they thought of this as a step toward marriage. And remember Okin’s discussion about the relative vulnerability of men vs. women in marriage? Consider this: the Pew survey also found that 67% of respondents say that in order to be ready for marriage, it’s “very important for a man to be able to support his family financially.” That might seem good. After all, it means that 1/3 of respondents don’t think it is “very important.” However, only 33% say that it is similarly important for a woman to be able to do so. Perhaps as a consequence of these values, today only about six-in-ten wives perform paid work, contributing to continued inequality in vulnerability through marriage.
So we see, Okin’s concerns still have some heft even as people’s views on marriage and family continue to change. I do not know where we will end up. I hope it will be less unjust in every way: more just in access to marriage, more just for those who do not wish to access marriages, and more just within marriage. But let us not assume that the only matter for concern is access to marriage. “Marriage equality” should mean more than just the legal right to marry. And only by looking at marriage critically can we see that.