As this is still a very controversial subject, let me make a few notes on this, lest I be misconstrued. This was written before the Supreme Court determined that gay marriage was a constitutional right and as such, it does not discuss the arguments for or against gay marriage contained in that decision.
Also, I do not argue whether gay marriage is in itself moral or immoral. Rather, the point of this paper is to try to understand what the purpose of marriage is as a civil institution in our liberal society. Based on society's legitimate interest in marriage, I argue for the best conception of "marriage" from the standpoint of that legitimate interest, namely, that it is primarily an institution geared towards the successful rearing of children. Consequently, any civil benefits and recognition should be tied to the actual rearing of children, instead of the sex, status, number, etc. of the partners involved in that marriage.
In other words, from the perspective of a liberal society and government, I believe that what I call "parental unions" are the only types of "marriages" that should be civilly recognized, subsidized, and promoted by the government. All other marriages or unions should be left to private associations to recognize and affirm.
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Introduction
What is marriage? This question has been at the forefront of political debate in recent years due to the continuing political controversy surrounding the issue of whether gay couples should be allowed to marry. However, controversy over the meaning and purpose of ‘marriage’, and with it, the ‘family’, are not new. For example, feminists have criticized the traditional gender-structured family for many years as unjust, calling for laws that promote and enforce the equal division of wage and household labor between men and women. Even if questions regarding what ‘marriage’ or the ‘family’ are were settled, it would still not be clear what society should do in response. Competing political and social theories will call for differing treatments of the family, even if they share the same conception of the family. For example, a libertarian view will call for minimal state action in regulating the family, while a more mainstream liberal view may call for a great deal of regulation. It is the purpose of this paper to discuss the meaning and purpose of ‘marriage’ and ‘family’ from the perspective of a broadly Rawlsian political liberalism.[1] I will first explain what this political liberalism is, followed by an explanation of a few definitions of ‘marriage.’ Using the framework of political liberalism, I will critique these definitions, noting where they agree. Based on this agreement, I will argue for what I call ‘parental unions’ that focus on and support the state’s primary legitimate interest in the way children are raised and their subsequent welfare. After considering common objections that such a view may raise, I conclude that a politically liberal state can, should, and is limited to promoting the welfare of children through parental unions.
Political Liberalism
Political liberalism, as advocated by Rawls, is a political philosophy that seeks to articulate principles of justice that apply only to society’s basic structures and which do not depend on any comprehensive doctrines (e.g., religion, controversial moral claims, views of the good life) for their support.[2] Instead, these principles derive from the use of public reason in order to maintain neutrality amongst competing reasonable conceptions of the good.[3] Public reason consists of an overlapping consensus of political views that are forged through agreement and compromise[4] and grounded in publicly available facts and political values. These publicly available facts are “widely accepted” and “non-controversial” facts concerning human nature (e.g., scientific facts) and social and economic structures (Exdell 450, 457). If the government enacts legislation that is not supported by public reason, even if it reflects the actual truth of an issue, it is an illegitimate action. This action violates the shared values that society is founded upon by imposing a comprehensive view of the good upon society at the expense of those who disagree; it violates liberal neutrality.[5] Limited by this constraint, political liberalism can be supported by many differing reasonable conceptions of the good life, and so it can sustain a political community that is marked by a plurality of comprehensive moral, religious, and philosophical views while recognizing the epistemic limitations and limited proper role of the government.[6]
As a further constraint on legitimate state action, the state is limited to regulating the public actions of individuals. When the actions of an individual have only private consequences, these actions are to be off limits from state intervention. Given the fact that our membership in any particular society is largely involuntary, and since there are many reasonable views about how one ought to live one’s life, a governmental restraint that allows for the maximum amount of liberty consistent with similar liberty for others and also allows for a plurality of reasonable views is ideal. Individuals are then left to develop their reasonable comprehensive views through the use of private associations, which are joined voluntarily and hence, exercise the use of free choice.[7]
As a consequence, individuals in a society have a duality of roles: a public role and a private role, and each role requires differing (though not necessarily incompatible) values to meet their differing responsibilities. As citizens, they must understand themselves and have the resources (educational, financial, psychological etc.) to be free and equal participants in developing and maintaining a just framework for their society. While as private individuals, they must understand themselves to be persons who can freely choose and pursue their own vision of human flourishing even if others (be they the powerful or the majority in the society) insist that their world view is based on falsehoods or lacks virtue. (Wijze 271)
However, it is important to point out that individuals are first and foremost citizens of the state, and secondarily, members of private associations.[8] This means two things. First, the rights of citizenship trump those of private associations when there is a conflict, thereby constraining the ways in which an individual can be treated by others, including those most personally related to him or her.[9] In other words, an individual cannot be alienated from his or her rights, even by associates, friends, or family members. Comprehensive views of the good life must be reasonable, and if they violate a person’s rights, they are inherently unreasonable.
Second, the (legitimate) responsibilities of citizenship trump those of primary associations when there is a conflict. Liberal values (e.g., tolerance, liberty) need not be enforced to their utmost in the private sphere. These values are primarily important in the public and political sphere, but lose their centrality in the private sphere, where citizens are free to promote other values and views of the good life. However, such values must be encouraged in the private sphere as is needed to sustain the “long term viability and integrity of a liberal political community” (Wijze 258). That is, citizens are required to develop the political values and life skills necessary in order to sustain the community as a whole, even if such values and skills are not needed or valued personally. Altogether, political liberalism gives weight to basic rights and personal freedom, while at the same time it promotes uncontroversial shared understandings of the good of society and enacts these into laws. As such, it seeks to achieve an ideal balance of personal freedom with the needs and goals of the community.
What is Marriage?
Using this framework, we can assess proposals regarding what ‘marriage’ is for the purpose of how it should be promoted (or not) by the politically liberal state. Consider some definitions:
A. The “Conjugal” or “Traditional” View: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it. (Girgis, George, and Anderson 246)
The “Conjugal” or “Traditional” view takes marriage to be primarily about the sort of relationship that is naturally oriented towards procreation and child rearing.[10] This is a pre-political relationship that does not get its nature from the state. The state may regulate marriage and put constraints on it, but its fundamental nature is not purely conventional. Instead, it expresses a moral reality that involves natural privileges and responsibilities. The state should reflect and support this moral reality through marriage law since the state cannot change what marriage in fact is.[11]
B. The Minimal Marriage View: “The central idea is that individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each” (Brake 303).
The Minimal Marriage view takes marriage to be a social or legal construct. To view marriage as a social construct is to believe that, for the private sphere, “its very existence, the limits that define it, and the types of behavior that are acceptable and not acceptable within it all result from political decisions” (Okin, Justice 129). Similarly, “[t]he state constitutes the family structure through its laws, defining which groups of people can count as families, defining the privileges and rights of family members, defining what marriage and divorce are, what legitimacy and parental responsibility are, and so forth” (Nussbaum, 61).
If marriage is a social construct, it can and should be constructed to suit individual needs. Brake claims that Minimal Marriage would “consist only in rights which recognize (e.g., status designation, burial rights, bereavement leave) and support (e.g., immigration rights, caretaking leave) caring relationships” (Brake 307). Caring relationships are those that involve “physical or emotional caretaking or simply a caring attitude (an attitude of concern for a particular other)” where the parties “know and are known to one another, have ongoing direct contact, and share a history” (Brake 307). Since every individual may have different wishes relating to how emotional, economic, and social needs are met, the benefit system should be structured to allow for individuals to be flexible in meeting their needs, or to follow more traditional arrangements if they so desire.[12] So, for example, person A may choose to grant immigration rights to person B (e.g., person A’s lover) while granting caretaking rights to person C (e.g., person A’s grandparent), where persons B and C are different people. This allows person A to give and receive rights and duties to different individuals to serve her varied personal needs and desires.
C. The “Revisionist” View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear. (Girgis, George, and Anderson 247)
The “Revisionist” view may or may not take marriage to be a social construction. Some “Revisionists” may view marriage as a moral reality grounded in the love of two people for each other (regardless of sex), while others may take it to be a purely social construction that nevertheless, should be limited to two people. Consequently, the “Revisionist” position represents a middle ground between “Traditional” marriage and Minimal Marriage.
Notice that these views all demand that the state intervene in the family and enact marriage law, claiming that the state has a legitimate interest in doing so, while also demanding a sphere of private autonomy, free from government interference.[13] In order to determine just where to draw the line between appropriate and inappropriate state action, we must determine what constitutes a legitimate state interest in accordance with political liberalism. Three such interests are proposed in the foregoing definitions of marriage: (i) the welfare of children, (ii) the welfare of adults, and (iii) the stability of relationships in general. Since the benefits that fall under (iii) will generally also fall under (i) and (ii), I shall only consider (i) and (ii), starting with (i).
The Welfare of Children
Marriage is believed to promote the welfare of children. The state has a legitimate interest in the welfare of children for two reasons. First, self-sufficient, socialized, healthy, and moral citizens are primarily formed through families. “Societies rely on families, built on strong marriages, to produce what they need but cannot form on their own: upright, decent people who make for reasonably conscientious, law-abiding citizens” (Girgis, George, and Anderson 270). This is one of the reasons why publicly funded education is so important. It provides access for all children to the education necessary for becoming responsible, productive, and democratic citizens. Such education will not only teach facts about the world, but will promote certain political values, including “civility, tolerance, trust, compromise, and sense of fairness - and legislatures may act to encourage practices that foster qualities of character supportive of democratic institutions” (Exdell 452). However, such education can only be effective in cooperation with a supportive and healthy family, which is the most important factor in a child’s formation.
Second, children are especially vulnerable in comparison with adults due to the fact that they do not choose their family relationships voluntarily. Abbey observes that “[p]articipation in both the family and society starts involuntarily for children with their birth or adoption, so that our first membership of families is not a consensual act” (Abbey 13). Given the fact that “the family in which each of us grows up has a deeply formative influence on us – on the kind of persons we want to be as well as the kind of persons we are,” society needs to place constraints on the kinds and actions of families so that children are not harmed or abused, both physically and emotionally (Okin, Justice 184). While a family does have considerable freedom in how it raises its children, it may not “prevent its members (and the children of its members) from obtaining the requisite civic education required for them to be (or become) fully effective free and equal citizens in a democratic society” (Wijze 261). Thus, for the same reasons that rights and liberties are protected in civil society for all citizens, the state has a legitimate interest in protecting its youngest citizens from potentially damaging family life: so that they may choose (so far as is possible), the way they wish to live their lives.
The Welfare of Adults
Marriage is also believed to promote the welfare of adults. However, it is not immediately clear that the state has a legitimate interest in promoting or maintaining marriage for this reason. Many of the benefits that marriage provides for adults are or could be provided for in other ways.[14] Adults are already able to live together and engage in whatever sexual acts they prefer. Visitation rights, rights of inheritance, shared health insurance, etc. could all be provided for through legal arrangements like power of attorney.[15] Nor are adults involved in families against their will. Adults consent to enter into marriage of their own choice, and so they choose which families to be a part of. Furthermore, adults are past the age of reason and as such are entitled to the greatest extent of freedom possible within a politically liberal society. Consequently, paternalistic policies that shape them, for their own good and for the good of the state, seem inappropriate. Given this there seems to be no adult-centered reason why the state must get involved in promoting marriage; all of marriage’s benefits and responsibilities for adults can be provided in other ways without a distinct legal category of marriage.
Furthermore, adult relationships need not be oriented towards children, but this seems to be the essential and common legitimate state interest that justifies such regulation of sexual relationships. Girgis, George, and Anderson assert that
the state has an interest in marriages that is deeper than any interest it could have in ordinary friendships [because] [m]arriages bear a principled and practical connection to children. Strengthening the marriage culture improves children’s shot at becoming upright and productive members of society. In other words, our [reason] for enshrining any conception of marriage [is] the deep link between marriage and children. Sever that connection, and it becomes much harder to show why the state should take any interest in marriage at all. (Girgis, George, and Anderson 271)
To support this claim, Girgis, George, and Anderson provide a thought experiment: “imagine that human beings reproduced asexually and that human offspring were self‐sufficient. In that case, would any culture have developed an institution anything like what we know as marriage? It seems clear that the answer is no” (Girgis, George, and Anderson 286-7). What this shows is that children are what matters when it comes to marriage law.
However, others disagree. Brake, defending the Minimal Marriage view, believes that the state has a public reason to provide, and is even required to provide, Minimal Marriage because “the social bases of caring relationships are primary goods [which] are bases for claims of justice” (Brake 326). Primary goods, as Brake defines them, “are those goods essential to the development and exercise of the moral powers and to the pursuit of varied conceptions of the good” (Brake 327). Caring relationships clearly satisfy this definition, for close caring relationships are necessary for moral and physical health and development. Rights and privileges can be socially distributed so as to create and sustain these relationships, and these are precisely the rights and privileges which Minimal Marriage provides (Brake 330).
Furthermore, Brake claims that “[c]aring relationships sometimes need support and protection which the state is uniquely able to provide. Maintaining such relationships normally (although not always) requires frequent contact and shared experiences” (Brake 331). As such, the government must provide entitlements, particularly to those relationships whose continuance depends on such entitlements, because the government itself is often a threat to these relationships through the obstacles it erects (e.g., “immigration restrictions, relocation of civil servants and military personnel, and prisons”) (Brake 331). Thus, caring relationships are not only justifiable through public reason, but they are a requirement of justice.
Contrary to Brake, I do not think that caring relationships or the social bases upon which they (alone) rely should qualify as primary goods. Many things are essential to the development and exercise of moral powers and the pursuit of conceptions of the good. For example, the physical forces that hold our bodies together are essential for our existence, and hence, for our pursuit of the good, but these should not count as primary goods. Similarly, I may have expensive tastes (e.g., plovers eggs) or religious needs (e.g., expensive pilgrimages) that are essential to my full development and exercise of moral powers and my full pursuit of my conception of the good, yet these do not seem to be the proper object of governmental concern. So what marks a primary good? Issues of justice can only arise from the circumstances of justice, which are a (i) moderate scarcity of social advantages and (ii) conflicting claims of mutually disinterested persons (Rawls 128). Without scarcity, there would likely be no conflict amongst persons, and hence, no need for distributive justice.[16] So we may roughly characterize primary goods as those societal goods that are (1) moderately scarce, (2) are the subject of conflict, (3) are distributable, (4) are necessary for our sufficient moral and social development as citizens, and (5) are necessary for our pursuit of a sufficient conception of the good.[17] Only those goods that meet these criteria should count as primary goods to be subject to state distribution and control.
Some of these criteria are not satisfied by caring relationships or their social bases. While some particular caring relationships may be difficult to acquire and sustain, caring relationships in general are not. The social bases underlying these caring relationships are also not scarce or difficult to acquire. As already noted, most of these rights and duties (or the goods they provide) are or can be established (or accomplished)[18] through other legal means and hence, they need not be tied to marriage law specifically. Similarly, there are not any substantial conflicting claims regarding caring relationships. Two men may fight over a single woman, but given the fact that there are many eligible women available, the losing man has no grounds for claiming that his rights have been violated. Thus, I may have a right to caring relationships per se (since these are needed for our sufficient moral and social development as citizens), but I do not have a right to any particular caring relationships (since it is doubtful that any particular relationship is so needed or could not be replaced).[19] As long as the government does not infringe upon this general right, no injustice has been committed. Given that traditional marital benefits are available through non-marital legal means and private associations, and the fact that caring relationships are the result of an individual’s free choices and are therefore his or her (and not the government’s) responsibility, Brake’s argument strikes me as being very weak. Thus, I conclude that the welfare of adults, while important in its own right, is not something that the state has a legitimate interest in that would warrant governmental intervention for the purposes of marriage law.
Critiques of these Views of Marriage
Having determined that the politically liberal society has a legitimate state interest in, and only in, the welfare of children (both for its sake and for the children’s sake) for the purposes of marriage law,[20] we can now critique the offered views of marriage. Regarding the “Traditional” view, notice that the link between procreation and child rearing is never argued for, but only assumed. This assumption is made virtually explicit when Girgis, George, and Anderson claim that “[c]hildren… can have only two parents – a biological mother and father. There are two sexes, one of each type being necessary for reproduction” (Girgis, George, and Anderson 272). However, this conflates the procreative or biological sense of parenting with the rearing sense of parenting, and the rearing sense of parenting does not require two parents, one of each sex.
Granted, procreation and rearing naturally and generally occur together, but in many cases they do not occur together at all. Adoptive parents did not produce their children, nor do many biological parents raise their children. Indeed, the fact that one can procreate does not imply that one can or should raise a child. Teenagers are able to produce children long before they are sufficiently emotionally or economically mature to handle such a responsibility. Similarly, the fact that one cannot or does not produce a child does not have any significant bearing on whether or not one can effectively raise a child. Singles and sterile couples can and do raise healthy and happy children, while many procreative couples fail to do so. Indeed, while only a male-female couple can naturally produce children, one, two, or more individuals can raise a child (and regularly do). Even in the traditional family, a child is not raised solely by the child’s mother and father. Grandparents, aunts, uncles, siblings, and even close family friends all play a part in raising a child. Teachers, religious figures, athletic coaches, and many other adult role models also play a part in raising a child.[21] The parent or parents usually play the primary role in raising the child, but not the exclusive role. So while it is true that only two individuals can organically unite at a time for procreative purposes,[22] one, two, or more individuals can raise a child. Consequently, it is a mistake to equate procreation with child rearing.
For the purposes of the state and marriage law, the ability of a family grouping to raise a well-adjusted and self-sufficient child is what matters. Contrary to Girgis, George, and Anderson,[23] the fact that same-sex partnerships cannot procreate does not preclude them from having an essential orientation to raising children, provided that these partnerships provide caring and loving homes. While the fact that these children are not biologically their children may impose a barrier to such a possibility, it is not an insurmountable barrier. And as long as a condition of parenting is that couples or groups are legally bound by beneficial relational norms, then it seems like they too will be able to provide a stable and harmonious home for children.
Girgis, George, and Anderson cite empirical data that suggest that “children fare best on virtually every indicator of wellbeing when reared by their wedded biological parents” (Girgis, George, and Anderson 257). However, this conclusion is contested because this data can be interpreted in other ways. Brake claims that, as we might expect, “marriage sometimes benefits, but sometimes harms, children” (Brake 317). Children in high-conflict and abusive families actually benefit from divorce, whereas children in low-conflict families are generally pretty healthy, regardless of whether those who raise them are their biological parents (Brake 317). As Brake claims, “[w]hat matters greatly to child psychological development is continuity of care, which is available in polygamous, same-sex, single-parent, and extended families” (Brake 318).
Struening also argues that marriage itself does not promote child wellbeing to any significant extent. She cites studies that claim to show that “most children do not suffer serious, lasting problems” from growing up with one parent and that in such families “on outcomes such as cognitive ability and mental health the size of the [harmful] effects are quite small” (Struening 246). The most significant factor regarding “negative effects” in single parenting seems to be “low income,” which accounts for half of these effects (Struening 246). While marriage may be important, it is correlated with other factors (e.g., education, better jobs) that are also important and may explain its importance, and as such, may explain why children of married parents fare better than children of unmarried parents (Struening 246). And, as Brake has also observed, marriage may be worse for women and children if the father is violent and abusive, unfaithful, prone to crime, or using drugs (Struening 247).
If Brake and Struening are correct, then what matters for healthy child development is low-conflict in the parenting relationship, continual care, and a sufficient socioeconomic status, and this is what the government should promote and attach benefits to. The biological relationship of the parents to their children or the ability of the parents to procreate is not important for state purposes. And as a matter of political liberalism, the state can only be concerned with the ability of parental groups to rear children when it comes to such family law. Children have certain inalienable rights guaranteed to them by the state. But so long as these are not violated, it is very difficult to place a constraint on the size or nature of a family who raises a child. As Wijze notes,
within these constraints the nature of the family, be it monogamous, polygamous, homosexual, communal or nuclear, or whether it is organised on liberal, feminist or traditional lines, is of no interest to political liberalisms. Provided a particular family form ‘can raise children to the necessary standards of civic virtue,’ and educate them to ‘respect the equal rights of citizens,’ then its internal organisation is a non-political matter and of no interest to the state. (Wijze 275)
Consequently, legislating the “Traditional” view of marriage would violate liberal neutrality. Girgis, George, and Anderson claim that “any marriage law at all communicates some message about what marriage is as a moral reality. The state has an obligation to get that message right, for the sake of people who might enter the institution, for their children, and for the community as a whole” (Girgis, George, and Anderson 268). But if a marriage law unnecessarily takes a position on what is good, then governmental neutrality has been lost. It does not matter that the “Traditional” view of marriage may be right. Political liberalism does not aim for comprehensive truth, but for overlapping consensus and accommodation of reasonable pluralism. “Traditionalists” would make the state the arbiter of moral truth and increase its paternal capacities. Do we really want the government to use its coercive power to enforce such moral truths, especially considering that this would violate other freedoms (e.g., religious freedom, freedom of conscience)? From the political liberalist perspective, this would be an inappropriate use of state power. Thus, while the “Traditional” view of marriage may in fact be correct, it cannot be endorsed legitimately by the state, for it goes beyond the state’s legitimate interests and violates neutrality.
Next, consider the Minimal Marriage view. We have seen that, insofar as it relies on promoting the welfare of adults for its justification, it is unjustified. In fact, nowhere does Brake tie marriage essentially to children, and from her definition and discussion of Minimal Marriage, it appears to be an institution primarily for adults, and only secondarily and incidentally for children. Without being purposely oriented towards children, Minimal Marriage fails to be of legitimate interest to the state, and consequently, cannot be promoted or provided by it. The Minimal Marriage view can rectify its difficulties by tying marriage explicitly to children. The promotion of the welfare of children would give the state a legitimate interest in Minimal Marriage and would sharpen and focus the aims of marriage and the reasons for state benefits to marriage. Thus, until Minimal Marriage is modified to focus explicitly on children, it cannot and should not be promoted by the state.
Finally, consider the “Revisionist” view. First, it arbitrarily excludes other types of potentially valuable relationships by limiting marriage to couples. It would exclude, like the “Traditional” view, “those seeking open, temporary, polypolygynous, polyandrous, [or] polyamorous… unions. After all, people can find themselves experiencing sexual and romantic desire for multiple partners (concurrent or serial)” (Girgis, George, and Anderson 250). But for the purposes of the state, such an exclusion appears to be arbitrary, since the state does not have a greater interest in the love of couples as opposed to the love of groups. This is especially true considering that, as already argued, such groupings of multiple individuals can effectively rear children as well as couples can, and this is a legitimate interest of the state. Thus, for the purposes of the state with respect to marriage law, there is no relevant difference between couples and larger groups of individuals; if couples are allowed to marry, larger groupings must also be allowed. Second, like the Minimal Marriage view, the “Revisionist” view lacks any necessary connection to children; it is fundamentally oriented towards the welfare of adults (with children largely as an afterthought or an additional bonus to add to the happiness of the adults). Since any benefits that such a relationship has for adults are or can be provided for by other legal means, this view fails to have a legitimate state purpose to support its recognition in law. Thus, without a principled reason for excluding other types of relationships and without a legitimate state interest in the welfare of adults through marriage, the “Revisionist” view has the problems of both the “Traditional” and Minimal Marriage views without their benefits.
An Alternative to Marriage: Parental Unions
So what should marriage law look like? Nussbaum nicely suggests that we should approach this question “by thinking how we may balance adult freedom of association, and other important interests in pursuing one's own conception of the good, against the liberties and opportunities of children as future citizens” (Nussbaum 62). In accordance with this approach, and in seeking to build a marriage-like law based on an overlapping consensus of views, I believe that the state should focus on supporting and promoting healthy parental relationships; it should support parental unions and thereby get out of the marriage debate completely. Dropping the use of the term “marriage” for public purposes would emphasize the fact that it is the parental aspect of relationships that the state is concerned with when it comes to family law, since the state has a legitimate state interest in the welfare of children. The state is not concerned with marriage itself, nor need it take a stance on what marriage is. Thus, the state can avoid much of the current debate which hinges on how to properly define “marriage.”
Such parental unions would be different from the “Traditional”/“Conjugal”, Minimal Marriage, and “Revisionist” views in important ways. First, legal benefits would not be attached to the adult relationship itself. All three of these views would allow (even require) the state to provide automatic benefits to adult couples or groups, even in the absence of any actual rearing of children. But the state does not have a legitimate interest in romantic coupling for its own sake, so benefits should be tied to the actual rearing of children and groupings that are oriented to and fulfill that purpose.[24] Second, since all groupings can be oriented in this way, no one would be excluded from the benefits tied to such a relationship. That is, unlike the “Traditional” and “Revisionist” views, parental unions would not be restricted to adult couples. Instead, singles and larger groups of individuals can form and be parts of parental unions, and thereby, receive the benefits associated with such unions.
Third, many of these benefits would be like those that Brake offers as part of Minimal Marriage and which are part of traditional marriage arrangements (e.g., status designation, burial rights, bereavement leave, immigration rights, caretaking leave, shared healthcare, rights of inheritance, and visitation rights). These would automatically be granted to members of the parental union, and so while available to the public at large, they would be more easily accessible to those in parental unions. Such ease of accessibility would make parental unions easier to sustain and thereby indirectly promote the welfare of children. Other benefits, however, would be different from those offered by Minimal Marriage, and would be more extensive and aimed directly at the wellbeing of children (e.g., subsidized childcare, subsidized education for children and parents, job training for parents). These would not be available to the general public and would need to be related to significantly promoting the welfare of the child.
Fourth, such benefits of parental unions would be attached to the actual rearing of children and the fulfillment of parental responsibilities and relational norms.[25] That is, unlike the “Traditional,” Minimal Marriage, and “Revisionist” views, many benefits would be conditional and so would not be automatically granted. For example, the state could promote, incentivize, and attach benefits to traditional marital norms (and perhaps other norms) like sexual exclusivity (in the case of parental unions formed around a sexual relationship) and permanence (in the case of all parental unions) for the sake of children. Thus, the benefits of parental unions would not be an all or nothing matter, but would vary according to the ways in which a given union met certain conditions that benefit children. Given the state’s legitimate interest in children, this is not an unjust limitation of adult freedom. On this view, the choice to raise a child is “less a right and more a responsibility, or a trust, and it [should] be exercised only in ways that promote the child's interests” (Kymlicka 89-90). In becoming parents, adults voluntarily choose to limit their freedom for the sake of children. This is fair since children are not free to choose their parents and so they are in an involuntary and asymmetric relationship. These children cannot withdraw from the relationship at all, whereas the adults can. Insofar as we are trying to maintain a balance of power and given that these parental union’s sole purpose is to benefit and protect children, these norms seem justified.
Consider an example[26] to illustrate this view. Suppose that two people take the “Traditional” view of marriage to be correct and that they want to enter into a traditional marriage contract. However, this couple is infertile and is not planning on adopting children. The parental union view would say that this couple is free to make all of the appropriate legal arrangements that are traditionally associated with marriage, and they are free to have their preferred private association marry them. However, the state will not formally recognize any change in either person’s legal status, nor will they receive any additional benefits because of this change in their relationship. Suppose now that this couple, against all odds, happens to have a child, or instead, it decides to adopt children. At this point, many additional benefits, potentially conditional on the fulfillment of certain responsibilities, will be available to the couple in order to help it raise its children. The state will formally recognize a change in each person’s status, since they will now have entered into a legally recognized and protected parental union.
Thus, such parental unions would be supported and promoted by the state to further its legitimate interest in the welfare of children, and beyond this, the state would stay out of marriage law (for it does not have a legitimate interest in the welfare of adults via romantic relationships). That is, the parental union view is not a revised version of marriage, legal or pre-political. The nature of marriage, as a pre-political institution, is left to private associations to decide and act on within legal constraints. Instead, parental unions are an alternative to the legal institution of marriage, which should be abolished and replaced by the legal institution of parental unions.
Objections to Parental Unions
Having articulated the parental union view, we can consider some objections to it. First, “Traditionalists” will worry that by failing to promote “real” marriage and its norms, society will inevitably be forced to bear the burden of raising children. For instance, Girgis, George, and Anderson worry that “the further erosion of marital norms would adversely affect children, forcing the state to play a larger role in their health, education, and formation more generally” (Girgis, George, and Anderson 262). However, as has already been argued, the state can promote and require such norms for couples or groups who decide to raise children. These need not be inherently tied to marriage, but to the raising of the child. Consequently, opposite-sex couples, same-sex couples, and groups of closely associated individuals could form a parental union that commits themselves, for the purpose of raising a child, to norms of permanence and exclusivity. These norms have their rational basis[27] and purpose in child rearing, and the state can promote them for their importance in child rearing.
Second, “Traditionalists” will worry[28] that such a law will teach that being raised by one’s biological mother and father is not superior to any other family situation (e.g., single, same-sex, or group), when in fact it is. However, whether or not this is the case is an empirical question. It may well be that the traditional family is better for raising a child in general. However, this does not mean that in any given instance this is the best situation for the child, nor does it mean that any other family arrangement is intolerable. Just so long as a child is reared in a family that is sufficiently loving and stable, and as such, raises an acceptably healthy and well-adjusted child that will become a responsible citizen, the state’s legitimate interests will have been served.[29] To demand more would be to violate liberal neutrality.
Third, feminists may worry that my proposal does not do enough to protect women and children. In a just society, “the structure and practices of families must afford women the same opportunities as men to develop their capacities, to participate in political power, to influence social choices, and to be economically as well as physically secure” (Okin, Justice 15). However, feminists like Okin believe that gender-structured marriages do not make this possible. Influenced by gender roles, girls anticipate that they will become the primary caretakers of children, and choose less demanding careers (if any at all) in order to accommodate this role. Consequently, they do not choose highly demanding careers (e.g., doctor, lawyer, politician, university professor) nearly as often as men do, and consequently, fail to be equally represented in these influential public positions. Women marry men whose greater earning potential, advancement in their careers, and lack of contribution to household and parenting work gives them power and control over their wives. And in the event of separation and divorce, women are left with the burdens of a broken marriage with few benefits. Thus, gender-structured marriage makes women extremely vulnerable to abuse, manipulation, and dominance by men.[30]
Perhaps this would not be such a concern if women voluntarily chose to enter into such marriages. But such voluntariness is suspect to some feminists, believing that “women have been socialized to have compliant or subordinate preferences,” so that their voluntary choices are largely the product of men’s desires for them (Levey 129-30). Accordingly, women would not choose such gender roles for themselves were it not for the unjust societal expectations, which are created by men. Even if women do legitimately voluntarily enter into a gender-structured marriage, women are not free to voluntarily leave that marriage, due to the existence of property, children, legal and economic obligations, and other duties.[31] This is problematic when such involuntariness keeps one trapped inside a physically or psychologically damaging family relationship. Okin reports that “[m]any women, especially full-time housewives with dependent children, have no way of adequately supporting themselves, and are often in practice unable to leave a situation in which they and/or their children are being seriously abused” (Okin, Justice 152). However, even if women voluntarily enter into these marriages and can voluntarily leave them, such choices may still be problematic from the standpoint of justice. Arneson points out that “the cumulative effects of many separate ‘private’ marital decisions may significantly disadvantage some persons even if few transactions considered in isolation impose costs of such magnitude that they trigger justice concerns” (Arneson 314-5). In other words, if the fact that many women voluntarily choose gender-structured marriage places significant obstacles in the path of other women’s decisions to pursue other options, then these voluntary choices may be unjust in total, for they lead to injustice, even when they appear just considered on their own.
Not only are women made vulnerable by marriage, but children are as well. In gender-structured marriages, young girls do more work than their brothers, teaching both sexes that women should do more household labor than men.[32] This is a problem because the family is supposed to teach children the moral values they need to sustain and flourish in a political liberal society. If justice is not taught within the family, it seems unlikely that it will develop within our society as a whole, for the family is the foundation of society.[33] Furthermore, as has already been mentioned, children are even more vulnerable because of the involuntary nature of their inclusion into the family. As Nussbaum notes, “children are simply hostages to the family in which they grow up, and their participation in its gendered structure is by no means voluntary” (Nussbaum 60).
However, it seems that parental unions can meet feminist concerns. First, women and children are guaranteed to be protected by the rights and liberties of society, placing limits on the dangers of family life; family life cannot violate these rights. So while family life is not necessarily defined by governmental law, it is constrained by it, thus preserving the public and private natures of the family.[34] While it is an empirical question, it is reasonable to believe that through the use of mandatory education and the protection of other basic civil rights, men, women, and children of both sexes will meet the minimum acceptable standards for what it means to be a fully-functioning and self-supporting member of society.[35] Feminists may be right[36] that the gender-structured family is unjust, subjected to the highest moral truths, but the political liberal only needs to show that its injustices are tolerable and are outside the scope of the state’s legitimate authority. For political liberalism, it is just, for “a just family is one which respects the civil rights and liberties of all the individuals within it and promotes the capacities of individuals to become fully cooperating members of society” (Wijze 280).
Second, the state can enact measures to make sure that such dangerous divisions of labor are made truly voluntarily, in just conditions, and are relatively unlikely to lead to any further injustices.[37] A voluntary action can involve no physical, social, psychological, or economic coercion, and it must be made within a society whose basic structures are regulated by justice.[38] In order to bring this about, parental unions could adopt many of the same policy changes that Okin proposes for marriage: (1) the mandatory provision of high-quality daycare by large companies, and its subsidization by the government to make such daycare affordable the poor,[39] (2) mandatory paid leave for pregnancy, birth, and post birth child care for men and women,[40] (3) mandatory provision of flexible and part-time work while children are under the age of seven,[41] (4) mandatory after-school programs,[42] (5) mandatory equal-splitting of all earnings within a household involving children,[43] and (6) an increase in alimony and child-support payments to ensure that both post-divorce homes have the same standard of living.[44] Each of these policy proposals is aimed directly and indirectly at the wellbeing of children, and so can be supported on that basis. Furthermore, such policy proposals will indirectly protect women from the dangers of gender-structured marriage.
Third, supposing that women’s and children’s rights have been respected and that many of the foregoing policy changes have been implemented within a parental union structure, the politically liberal state cannot do much more without violating liberal neutrality. If “a citizen freely chooses to live in a family where there is an unequal division of labour on gender lines, but does so because it fits with her values and beliefs, a political liberal state must respect and protect this personal choice because they are intimately connected to a citizen's basic civil rights and liberties” (Wijze 279). And one cannot simply say that such “voluntary” choices are suspect. As Levey argues,
our gendered behaviors are not a feature beyond our control. At least, such behaviors are as much in our control as anything can be. If women end up less well-off in economic and social terms than do men because they make different choices than men, because they do not choose the same kind of social and economic payoffs, then liberalism is limited in how it can respond. Choices and the conceptions of the good that underlie them may be debated in the cultural marketplace, but they are not the state's business and therefore not the business of political philosophers either. (Levey 140)
All of our choices are adaptive to a certain degree, and given that the foregoing policy changes would make the conditions in which these voluntary decisions are made just, this is as far as political liberalism can act in rooting out gender-structured marriage.
Furthermore, this is as far as the state should act. Acting further would not only violate liberal neutrality, but would also prevent “unequal” but mutually beneficial relationships. Arneson points out that in societies without gender–structured marriage, “if a man and woman differ in their tastes and talents with respect to paid labor, child rearing, and housework, there will be in general many deviations from [an equal division of labor] that would be better for both parties than [an equal division of labor]” (Arneson 320). This is particularly true because while in such a society men and women may on average make about the same wage, any two particular “potential mates would likely have different potential earning ability” (Arneson 325). For the sake of promoting the welfare and liberty of adults and children alike, such “unequal” marriages must be allowed so long as they do not compromise the state’s legitimate interest in children. Thus, I conclude that feminist concerns can be met by parental unions.
Fourth and finally, some may complain that my proposal does not go far enough and get the state out of marriage-like law altogether. However, I agree with Girgis, George, and Anderson that complete “marriage privatization would be a catastrophe for limited government. In the absence of a flourishing marriage culture, families often fail to form, or to achieve and maintain stability. As absentee fathers and out-of-wedlock births become common, a train of social pathologies follows” (Girgis, George, and Anderson 270). Relationships need regulating. But I believe that it is not so much the sexual relationship that needs regulating by the state as much as it is the parenting relationship that needs regulating. These are closely connected, but not inseparable, and it is the latter that the state has a legitimate interest in through its interest in the welfare of children. If the state promotes good parenting and the formation of stable and loving parental relationships, it seems likely the catastrophe that Girgis, George, and Anderson are worried about will be avoided.
Conclusion
Is neutrality possible when it comes to the marriage debate? Many[45] explicitly do not believe so. Unless the state gets out of marriage law completely, the state will have to decide, for political purposes, what “marriage” will be. Believing that the state need not, and should not, take a stance on what “marriage” is, I have argued for an alternative to and replacement of the legal institution of marriage. These parental unions serve the state’s legitimate interest in the welfare of children by promoting healthy parenting relationships and by focusing on the rearing of children. This view abandons the public marriage debate and leaves questions over the nature of “marriage” to private associations. Such a view is as neutral as can be while still promoting the state’s legitimate interests from the perspective of political liberalism. I therefore conclude that a politically liberal state can, should, and is limited to, promoting the welfare of children through parental unions.
Works Cited and Consulted
Abbey, Ruth. “Back Toward a Comprehensive Liberalism? Justice as Fairness, Gender, an
Families.” Political Theory 35.1 (2007): 5-28. JSTOR. Web. 15 Feb. 2012.
Anderson, Elizabeth. “What is the Point of Equality?” Ethics 109.2 (1999): 287-337. JSTOR.
Web. 20 April 2012.
Arneson, Richard. “Feminism and Family Justice.” Public Affairs Quarterly 11.4 (1997): 313
330. JSTOR. Web. 15 Feb. 2012.
Brake, Elizabeth. “Minimal Marriage: What Political Liberalism Implies for Marriage Law.”
Ethics 120.2 (2010): 302-337. JSTOR. Web. 15 Feb. 2012.
Card, Robert. “Gender, Justice Within the Family, and the Commitments of Rawlsian
Liberalism.” Public Affairs Quarterly 15.2 (2001): 155-171. JSTOR. Web. 15 Feb. 2012.
Deslaurier, Marguerite. “Two Conceptions of Inequality and Natural Difference.” Canadian
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Exdell, John. “Feminism, Fundamentalism, and Liberal Legitimacy.” Canadian Journal of
Philosophy 24.3 (1994): 441-463. JSTOR. Web. 15 Feb. 2012.
Girgis, Sherif, Robert P. George, and Ryan T. Anderson. “What is Marriage?” Harvard Journal
of Law & Public Policy 34.1 (2010): 245-287. Web. 15 Feb. 2012.
Hinton, Timothy. “Liberalism, Feminism, and Social Tyranny.” Public Affairs Quarterly 21.3
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Footnotes
[1] Such a view may or may not be correct. Sandel argues against political liberalism because it is not always reasonable or possible to “bracket” our moral or religious beliefs for political discussion, and doing so will “impoverish” our political discourse and “and rule out important dimensions of public deliberation” (Sandel 196). Answering his objections would take another paper, and it is not the purpose of this one. Since there are reasonable responses to his objections, I will assume that political liberalism is a coherent view and, as such, I will use it to frame and assess the marriage debate.
[2] (Abbey 6)
[3] (Card 164)
[4] (Wijze 277)
[5] (Exdell 462), (Wijze 272)
[6] (Wijze 258)
[7] (Abbey 13)
[8] (Abbey 16)
[9] (Hinton 244)
[10] (Girgis, George, and Anderson 247)
[11] (Girgis, George, and Anderson 250)
[12] (Brake 312)
[13] This reflects the strange nature of the family in that it is fundamentally political while also fundamentally private. This is why it is so difficult to determine how we should treat the family: “[a]s citizens, we have good reason to require that all associations measure up to the demands of political justice, while as members of families, we have equally good reason to want our families to have freedom to flourish without governmental interference” (Hinton 244).
[14] While it is true that there are advantages to having default arrangements of rights and responsibilities, these advantages seem to be practical in nature. For example, most people will want their spouses to have certain rights and responsibilities, so it makes sense to have these as a default. However, I am concerned with the theoretical issue of what rights and responsibilities seem to be intrinsic to the purpose of marriage insofar as the state is concerned. Such rights and responsibilities should be granted, not for merely practical purposes, but for their own sake as necessarily connected to the state’s interest in marriage. Thus, it is important to keep the theoretical and practical issues separate so as to know what the state must do versus what the state may do regarding marriage law.
[15] (Girgis, George, and Anderson 281)
[16] For example, if money did grow on trees (ignore inflation), there would likely be no need for the government to redistribute it since money would be abundantly available to everyone.
[17] In (4) and (5) I depart from Rawls’ view that primary goods are (1) things that can be distributed and that (2) people want, whatever else they want. Instead, I follow Anderson’s views in “What is the Point of Equality?” in which primary goods are roughly those objective capabilities needed to function as citizens in society. Thus, Rawls’ view is modified to reflect this focus.
[18] For example, so long as it is not impossible (or perhaps extremely difficult) for a person to immigrate, it is not obvious that one should automatically be allowed to immigrate to a country simply because one marries a current citizen of that country.
[19] An exception would be natural relationships like parent-child or sibling relationships. These should be protected and given entitlement benefits, mainly because they are involuntary relationships and as such are not the result of choice. However, for relationships that are the result of choice, it is difficult to maintain that the government should subsidize or provide special privileges for them in the absence of any legitimate state interest. Such relationships are like expensive tastes that the government need not provide for. So while I admit that it is cold comfort to tell a person that it is ok that his or her lover will not be able immigrate since he or she can always find someone else, I still do not think that it is the state’s business to rectify this situation. Just because some people want certain rights and privileges is not a legitimate reason for the state to provide these for them. And given that such cases will be very rare in the presence of widely applicable immigration laws, I do not think this is a legitimate concern.
[20] I am assuming that legal marriage, as a publicly defined, enforced, and separate legal category with unique public rights and duties should only be available if it serves some legitimate state interest. As has been argued, many, if not all, of the traditional important adult benefits and responsibilities of marriage can be or are provided by the state through other non-marital means. Thus, there is no need to have a separate legal category insofar as adults are concerned since the lack of public marriage poses no significant obstacle to adults in carrying out their plans and pursuing their various conceptions of the good. However, prima facie, it seems that such legal marriage does provide unique rights, benefits, and duties concerning children, and so the state should have something resembling marriage law to provide these to and for children.
[21] As Nussbaum similarly argues, “village groups, extended families, women's collectives, kibbutzim, these and other groups have been involved in raising children; [we should give] favor to those groupings that seem most capable of rearing children, compatibly with other requirements of justice” (Nussbaum 61).
[22] (Girgis, George, and Anderson 272)
[23] “same-sex partnerships…cannot be marriages because they lack any essential orientation to children: They cannot be sealed by the generative act” (Girgis, George, and Anderson 257).
[24] Brake herself embraces this view (though she goes a bit further) by asserting that, “financial benefits for parents and incentives to stability should attach to parenting, not marriage” (Brake 319).
[25] Some responsibilities of parenting would be automatic, particularly if the child was naturally conceived. For example, child support would be an automatic responsibility of parents. Minimal benefits might also be automatic in these circumstances (e.g., visitation rights). However, the biological parents of a child could then enter into a parental union and acquire additional benefits and responsibilities.
[26] Thanks to Jason Hanna for providing this interesting example.
[27] Contrary to (Girgis, George, and Anderson 279).
[28] (Girgis, George, and Anderson 263)
[29] I agree with Brake: “Society does not and cannot require that parents be ideally suited to maximize children’s well-being (there would not be enough parents). There is, rather, a high threshold requirement precluding neglect and abuse and requiring nurturing” (Brake 318).
[30] (Okin, Justice 139)
[31] (Abbey 14). It is important to note that such relationships do not meet Goodin’s criteria for an acceptable asymmetric relationship, in which an acceptable asymmetric relationship is one in which the subordinate party can withdraw from the relationship without severe cost in order to avoid exploitation (Card 163, Okin, Justice 137).
[32] (Okin, “Political” 36)
[33] (Okin, Justice 135)
[34] (Wijze 271)
[35] (Wijze 277)
[36] But they may also be wrong. Okin admits that “there are no shared understandings on [the subject of gender] in our society, even among women” (Okin, Justice 68). Anti-feminist women support traditional gender roles, and feminists themselves are divided by those who wish to completely eliminate gender and those who take “the devaluation of women’s qualities and activities by a male-dominated culture” to be the problem (Okin, Justice 68). For the state to enforce any view over the others would be to assert the truth of one comprehensive view over another, and this is something the state cannot do.
[37] (Abbey 19), (Wijze 280), (Hinton 244)
[38] (Wijze 280)
[39] (Okin, Justice 177)
[40] (Okin, Justice 176)
[41] (Okin, Justice 176)
[42] (Okin, Justice 177)
[43] (Okin, Justice 181)
[44] (Okin, Justice 184)
[45] (Girgis, George, and Anderson 263, 286), (Levey 128), (Sandel 198), (Okin, “Political” 32), (Okin Justice 111)
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