Book Review: Minimizing Marriage: Marriage, Morality, and the Law by Elizabeth Brake

marriageMarriage these days is confined to two people and the usual arrangement is between a man and a woman.  Lately, there has been growing acceptance of same-sex relationships and thereby same-sex marriage.  But anything more than this is going “too far.”  Brake makes a bold claim: marriage should not be restricted to the gender or number of people involved, otherwise the state is practicing discriminatory practices.  She has two main reasons: (1) a liberal neutral state will not sponsor any value claim in relationships, including marriage, and (2) by doing so, the state will not sponsor amatonormativity (Brake’s coinage) which means that the “traditional” couple (monogamous, sexual dyad, male and female) should not be the state-sponsored norm of any relationship because it discriminates all other types of relationships.  The major thesis behind Brake’s book is that there is no special connection between marriage and morality.  Thus, a marriage could consist of the “traditional” model (one man + one woman), a same-sex model, a polyamorous or polygamous relationship, diverse care networks, urban tribes, and even a network of friends.  But why?  Two reasons: (1) for economic independence and (2) gender equality.  I’ll go through a chapter by chapter breakdown.

Part One is Brake’s thesis that marriage needs to be de-moralized.  Because marriage has been given a higher moral status, this value has made marriage a higher priority in terms of what is a valuable relationship.  Anything that doesn’t fit into this model is de-valued.  Thus, people who don’t aim for this typical “traditional” marriage don’t have the “proper” relationship to aim for.  In short, critics would say that marriage is moral because it makes a promise, follows a special commitment, it is the only type of relationship where sexual relations are permissible, and that marriage involves a special type of relationship that no other relationship can have.  Brake argues against all of this carefully.

Chapter One is Brake’s argument that wedding vows cannot be promises.  Things may change in the future.  So how can we be sure that our love will continue?  Moreover, if wedding vows are promises, and a divorce is breaking a promise, and breaking a promise is immoral, then this entails that divorces are immoral.  How does one get around this problem?  Brake looks at some replies around it, but finds them unsatisfactory.  Her conclusion is that wedding vows are not promises at all.  This is because we cannot control our feelings, thus we cannot promise to love someone.  Rather, a wedding vow is a promise of action and behavior: to act lovingly.  By promising to do something rather than to feel something, the wedding vow de-couples love from the wedding in a necessary sense.  Thus, a wedding vow is more akin to commitments rather than promises.  So what’s a commitment?

Chapter Two analyzes commitments and finds the differences between promises and commitments.  In short, a promise is an utterance to do something whereas a commitment is a psychological disposition that one takes on as a matter of integrity.  For example, I may promise my friends to take them shopping this weekend, but I’m committed to cut back on my expenses by not eating out so much.  It is here that I have some troubles with Brake’s notion of commitment.  I made a breakdown of the difference between promises and commitments from Brake’s chapter.  Here’s the breakdown:

CommitmentsNow, based on the above criteria, there’s something problematic that I see.  Typically, commitments are something that has high value and priority in one’s life.  But the above criteria above doesn’t mention that.  What if the commitment is to something trivial?  Is it still a commitment?  For example, the popular show The Big Bang Theory has a character who follows a certain routine and if the routine isn’t followed, then he feels off. The character I’m thinking is Sheldon Cooper.  One example is that he must use the bathroom at 8AM every morning and if not, then he doesn’t “feel right.”  Is Sheldon Cooper making a commitment go to the bathroom at a certain time?  It seems strange, but Brake’s analysis doesn’t account for that.  Indeed, I’m not sure I can see a significant difference between commitment and routine here.

Another problem is how promises and commitments interrelate, if at all?  Can one make a commitment to make a commitment?  Can one make a commitment to make a promise?  Can one promise to make a promise?  Can one promise to make a commitment?  I suspect that in some instances, a “yes” could be answered.  Thus, these need to be deciphered in order to clarify a distinction between commitments and promises.

Despite the small critique I have of her, Brake’s point is that “a commitment does not in itself entail interpersonal obligation” (p. 50).  A spouse isn’t obligated to continue to care for the other if there is something about the relationship that is no longer worth caring about.  For example, if the relationship turns sour or becomes abusive, the commitment to stay in the relationship is no longer valuable.  Thus, commitments are conditional, and they are conditional on what objects and values it brings to the table.  In this sense then, love doesn’t require commitments!  One can be committed to a person through a series of choices and through a duration of time, but there is no necessary connection between commitments and love.  A breakup can happen but one person can still love the other person regardless.  And I can be committed to another person even though I may not love him or her romantically.  The point behind chapter two is to show that marriage and commitments are not intimately tied as we thought they were.  A commitment is morally neutral: it’s only as good as the value of that object.  To stay in a marriage because of some obligation isn’t really commitment; to stay in a marriage (or any type of relationship) because one chooses to shows true commitment.

Chapter Three argues the idea that sexual relations are only moral within the bounds of sex.  Part of this argument is that marriage somehow morally transforms the couple so that sex is now permissible or virtuous within marriage.  Brake argues against the Kantian argument that sex outside of marriage is objectifying the other, John Finnis’ new natural law argument that sex outside of marriage is unnatural, and Roger Scruton’s conservative argument that marriage makes the individuals involved more chaste thereby having a more flourishing life.  I won’t go into the details of these arguments, but I think Brake does a very good job showing the flaws of these arguments.

Chapter Four argues against the idea that marriage is somehow a higher form of relationship.  Along with this, marriage brings in a sense of care that no other relationship can.  Here, Brake brings up a new term: “amatonormativity.”  In the same way as relationships have been heteronormative, the current model of relationships is still amatonormative.  Brake argues that care ethics only makes sense within the context of justice and contracts.  Her focus is on amatonormativity and why it’s unjust.  As an analogy, relationships have been heteronormative meaning that if the relationship doesn’t follow the heterosexual norm (one man + one woman), then the relationship isn’t deemed “normal” and thus since it doesn’t fit the norm, the relationship isn’t seen as legitimate.  Slowly, heteronormativity is breaking down by the public slowly gaining acceptance of same-sex relations and same-sex marriage.  However, amatonormativity is still prevalent.  Amatonormativity “consists in the assumptions that a central, exclusive, amorous relationship is normal for humans, in that it is a universal shared goal, and that such a relationship is normative, in that it should be aimed at in preference to other relationship types” (p. 88-89).  By making this the norm, other type of relationships such as friendship, urban tribes, quirkyalones, polyamorists and asexuals have been devalued as a “normal” and “proper” relationship.  Amatonormativity overlooks other type of caring relationships; “marriage promotes one form of caring relationship at the expense of many others.  Our culture focuses on dyadic amorous relationships at the cost of recognizing friendships, care networks, urban tribes, and other intimate associations” (p. 88).  Those who violate amatonormative lifestyles face discrimination either through societal or legal pressures.  Thus, the setup is that amatonormativity already privileges those who are married or seeking marriage.  We still see this in our culture: if one is single, we often feel bad for that person or there must be something wrong with that person.  Being coupled up is seen as “progress” in one’s lifestyle and that being in a relationship is better than being single.  However, the couple isn’t a legitimate relationship unless they are married because marriage is the high value of what a relationship is all about.  This sort of thinking is discriminatory and wrong because many type of relationships can be just as caring, supportive, and intimate.  There is nothing special about being “coupled up” or being part of a “traditional” marriage.  Moreover, in the same way as there is sexism, racism, and classism, “singlism” is still in society where individuals are judged inferior because of their (lack of) relationship status.

Thus ends Part One.   Part Two is Brake’s positive account of what marriage can do.  She argues for “minimal marriage” in which the state will offer marriage but in a minimal way, meaning that it won’t promote a certain type of marriage.  Her term is similar to Robert Nozick’s libertarian minimal state.  Nozick had to balance against two sides: those who argue for having more than a minimal state, and those who argue against the state entirely.  Brake is doing the same thing.  In Part One, she looked at the arguments for the state getting involved in marriage and that they should promote a certain type of marriage.  She showed why those arguments are flawed.  In Part Two, she goes to the other side and must argue against critics who say that the state shouldn’t get involved in marriage at all.  The critics argue that since marriage has had a bad history and since it’s a private affair, the state should get out of the marriage business.  Brake argues that the state should still get involved in the marriage business, but only minimally.  Overall, I find Part One to be stronger than Part Two, as I’ll show.

Chapter Five looks at the critics of marriage as a whole because marriage has been an unjust institution.  These mainly come from the feminist critique that marriage has been patriarchal, heteronormative, and restrictive of love.  Brake’s conclusion is that marriage is contingently, and not essentially, unjust.  The solution is not to abolish marriage completely, but to reform it so that it is just.  This is an interesting prospect: suppose x started from violent beginnings.  Can x be justified through reform, or will x always be unjustified because of the initial violence?  Brake argues that x (in this case, marriage) can be justified through reform.  The problem is the abuses within marriage don’t show that marriage actually caused it.  Allowing people from other type of relationships to get married may give society the acceptance that other forms of relationships are legitimate too.  The state needs to still be involved because if marriage was completely privatized, then certain powerful groups and institutions would take control of marriage and thereby still engage in amatonormativity.  “Abolition [of marriage] would allow private-sector providers to deny entry, with no countervailing public message of equality whereas reform would send an unequivocal message of equality.  Ensuring equal access to a broadly recognized institution of marriage requires state involvement” (p. 123).  If the state sponsors one type of marriage, it constrains other type of relationships.  Ok, so getting the state involved would send a message that other forms of relationships are legitimate but why?  Brake’s answer is,  “State noninterference would simply shift the construction of love wholly to cultural, social, corporate, and religious pressures.  Love would be shaped by the machinations of the market and the mass media” (p. 122-123).  But even if the state did get involved, love is still constructed to cultural, social, corporate, and religious pressures.  Laws may enforce certain behaviors, but it won’t change the hearts and minds of people as a whole.  Perhaps in later generations when the laws are in effect, then the next generation will see different types of relationships as common and no big deal.  Thus, there is the assumption that laws would eventually change people’s minds.  Obviously, this is still a contentious matter.  Laws can eventually institutionalize an action or behavior to make it seem like it’s the norm, but so can grassroots movements too.  Which is more effective?  Here, Brake’s answer seems to be laws but I don’t see an argument as to why.  On another reason this may not be effective, here is a libertarian account of why Brake’s argument may not work.

Chapter Six offers what political liberalism does and what it calls for.  Brake takes on Rawlsian liberalism.  In many instances, critics of same-sex marriage claim that this could harm children.  Brake’s counter-reply is that there needs to be a distinction between marriage and child-rearing.  If these two are collapsed, then the assumption is that marriage is necessarily procreative, which isn’t the case.  Moreover, there isn’t any empirical evidence to support the critics claims.  To this end, should the state even get involved in marriage at all?

Chapter Seven is the core of Brake’s book in which she argues for minimal marriage in a liberal state.  This means that the individuals involved in a minimal marriage can select from the rights and responsibilities and exchanges that are within marriage and exchange them to whomever s/he wants, rather than taking on an existing predefined bundle of rights and responsibilities.  Moreover, these rights may be asymmetrical as well.  So far, minimal marriage means that the state cannot restrict the gender, number, or reciprocal rights of the individuals involved.  Because there are certain benefits and rights that one obtains when married, these would be lost if marriage was abolished completely.  Thus, another reason why the state still needs to be involved.

What does Brake mean by rights being asymmetrical?  Suppose that A and B are in a loving relationship, and A and C are friends.  A may want to bequeath B the right to visit A during hospital visits when A is sick, but A may want to bequeath C funeral arrangements.  Likewise, suppose D (A’s relative) is very close to A.  Perhaps because B and C are quite healthy but D is getting old, A would want to give health benefits to D because of the close relationship they have.  In this way, there are many rights and responsibilities one could divvy out depending on the relationship.

This seems like it would be complex and difficult, yet this isn’t my critique.  Complexity is not the problem here.  The problem is how extensive this could get.  I’m currently a grad student.  Graduate students, as some of you may know, rely on loans and a small stipend to get by.  We can’t afford insurance or other benefits.  What if the grad students in the department got married to each other?  We all care for each other, and certain responsibilities and rights could be divvied out so that all of us are taken care of.  Could this work out under Brake’s model?  It’s hard to say, but on p. 164, Brake’s suggestion is that this could theoretically work.  However, the point behind minimal marriage is that it takes care of adult (not parental) relationships and it is free of amatonormativity.

Overall, Brake’s project is bold and daring.  One question I have is why call it “marriage?”  Her argument, it seems, is that by minimizing marriage, all other types of relationships will also be acceptable to get married.  In other words, the only acceptable marriage was the “traditional,” amatonormative kind.  Only certain people could fit in this tent.  But if we make the tent bigger to include all types of relationships, the state won’t be practicing any form of amatonormative discrimination.  However, if the tent gets so big, what’s the point of having a tent in the first place?  What advantages are there to “marriage?”  There still seems to be a hidden amatonormative feature in her claim: keep the term “marriage.”  But why?  She even admits that this could be called “personal relationship law” instead (p. 185).  Her answer is that marriage designates some legitimacy.  Saying that same-sex unions as “civil unions” instead of “marriage” undermines same-sex unions as legitimate or on the same level as a marriage.  But this is still amatonormative.  If marriage is what makes it legitimate, then people like Claudia Card still make a strong point.  Brake’s notion of minimal marriage is still amatonormative in that the legitimacy of marriage is what counts.  By holding onto the term marriage, Brake is holding onto the idea that being married is legitimate in holding some distributive goods in relationships.

The last chapter is Brake’s reply to certain challenges to her claim of minimal marriage.  I think Brake offers good replies to her challenges. Despite my criticisms, I think people who are interested in politics, especially the politics of relationships, would find this book very fruitful.  Brake’s view of marriage is thought-provoking and will give more ammo to those who fight for marriage equality.  Moreover, her claims are a serious matter for those who are part of the debate about the good behind marriage and the state’s involvement in it.

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About shaunmiller

I am a Ph. D student at Marquette University. The primary purpose of this blog is to get my ideas out there, and then have other people scrutinize, critique, build upon, and systematize beliefs. This blog will sometimes pertain to what I'm learning in my classes, but it will occasionally deal with non-classroom issues that I'm thinking about as well.
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3 Responses to Book Review: Minimizing Marriage: Marriage, Morality, and the Law by Elizabeth Brake

  1. Pingback: Various Philosophers on Erotic Love, Flirting and Marriage | Shaun Miller's Ideas

  2. Pingback: Legalizing Same-Sex Marriage, Part One: The Relationship Between the State and Marriage | Shaun Miller's Ideas

  3. Pingback: Legalizing Same-Sex Marriage, Part Two: Should New Relationships Be Legitimate? | Shaun Miller's Ideas

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