Legalizing Same-Sex Marriage, Part One: The Relationship Between the State and Marriage

On June 27, 2015, SCOTUS brought forth a ruling in a 5-4 decision.  The case was Obergefell v. Hodges, which declared that marriage was a fundamental right guaranteed by the Fourteenth Amendment to the US Constitution.

First, let me say that I congratulate the consequences of this ruling. [1]  Gay people can now participate in an institution, but they can also obtain the rights, benefits, privileges, and exchanges that straight people can once they get married.

And yet, I have some thoughts with this outcome.  This post isn’t meant to give an argument per se, but to expand my thoughts, and worries, from this outcome.  These thoughts deal with the government’s involvement in marriage, the next move of what to include in the marriage tent, and the idea of having marriage exist at all.  Let me start with the government’s involvement with marriage in this post.  Just to clarify, I’m not giving a sustained argument.  I’m giving just some of my thoughts that may have argumentative form, but may also be more of a stream of consciousness.  This is a rather long post, but the subject is complicated.

I. Government and Marriage: Should the government get involved in marriage still?  Should marriage even exist?

Marriage has always changed throughout history, despite what many people want to believe.  For a great book on the history of marriage, I highly recommend Stephanie Coontz’s Marriage, a History: From Obedience to Intimacy or How Love Conquered Marriage, or you can check out a book review I did on this blog.

Marriage was a way form political alliances, economic stability, and easing the tensions between two families.  But now marriage and love simply go together.  The connection is so strong that many people would not want to marry someone if they did not love that person, even if that person was perfect in every other way.  If getting married for love is a recent phenomenon, then we are still in the early stages of answering the question of what it means to be married.  Just think about how marriage in the past thousand years meant x.  But now in the past 300 years, it now means x + y.  Eventually, it could come to the point where marriage simply means y.  However, we are still in the x + y stage and we have a hard time thinking about what y by itself could mean.  To illustrate, marriage was about political alliances, meaning that the government got involved in marriages.  Lately, however, marriage was about being with someone you love.  The mantra from the debate is that “marriage is about love, not gender.”  Now, the government does get involved, but the focus has been on love.  Now imagine where marriage was solely focused on love without any governmental or political backing.  Sounds strange?  Perhaps.  But the idea of privatizing marriage is gaining some traction.  Senator Rand Paul, for example, calls for privatizing marriage.  Marriage evolves whether you want to admit it or not.

Now with marriage and love having a strong connection, we have seen many changes within the past century.  Miscegenation laws are banned—we can now marry and love people of different races.  Same-sex marriage is now legal—we can now marry and love people of the same sex.  But isn’t possible that there are other possibilities that we haven’t thought of, or that are on the fringe of society?  Yes.  Polyamory is one such example.  If marriage is getting further and further away from politics and closer and closer to whom we love, then marriage is pinpointing and focusing on our wants, desires, and proclivities rather than aligning with a governmental-sanctioned view of what ought to be the proper relationship.  If so, then I predict polyamory, transgender issues, and different forms of relationships being on the horizon on not only what it means to be married, but simply what it means to be in loving relationships.

With this setup, this introduces my first thought: if marriage is getting away from politics and closer to personal desires, would we even need the government involved in marriage in the first place?  As far as I can see, there have been three positions about the government’s relationship with marriage.

1. Keep the Relationship Intact.  This view states that the relationship between the government and marriage ought to be held together, which is what our system currently has.  There are many reasons why this relationship should be held, but mainly because there is some political and economic benefit.  Notice that with this view, there is a slight incentive from the government to get married.  Sure, people get married because of love, but notice that one can still love the partner without getting married.  Marriage, from the eyes of the state, gives the couple certain benefits and leeway that single people cannot have.  Now, from the get go, this means that only certain types of relationships are legally sanctioned.  And because this view is not just simply a legal notion but a cultural one, we all enter into the system thinking that this is what any loving relationship ought to look like and that the ultimate goal of any romantic relationship is marriage.  If marriage is not the goal, then the relationship is skewed as inauthentic.  What does the “proper” relationship look like?  Well, there has to be two, and only two, people involved where they are in some romantic relationship and they are expected, but not really required, to have sex.  By having this system in place, certain relationships are real, but others are left out and considered not real.  However, give it some time, and maybe other types of relationships can enter the marriage tent.

2. Expanding the Marriage Tent.  This view comes from philosopher Elizabeth Brake and political scientist Tamara Metz.  Indeed, Brake has written a book about the topic, and I did a book review of it in this blog.  I think law professor Nancy D. Polikoff‘s book may support this view as well.  Another view comes from an egalitarian perspective from Clare Chambers, what what she calls a marriage-free state.  Chambers argues to give piecemeal rights and privileges rather than a holistic bundle of rights to those because they are married.  You can see a good summary of it here.

There are many nuanced positions here but I want to pinpoint an argument in Brake’s book where she argues that marriage should evolve to caring networks, yet the government still ought to get involved to protect people.  The main argument that Brake argues for is for her new reformulation of marriage which she calls “minimal marriage.”  Minimal marriage means that the individuals involved in a marriage will pick and choose what sort of rights, responsibilities, and exchanges and distribute them however they see fit.  What makes this “minimal” is that the government cannot restrict the marriage based on gender, number, or even if the rights are reciprocated.  Thus, not only would same-sex marriage be allowed, but so would polyamory and asymmetrical marriages.[2]  Marriage would not be a one-size-fits-all institution, but flexible to accommodate the wants and desires of the people involved.  These rights and responsibilities help establish what one obtains and what sort of claims one has when one is married.  If marriage was abolished, then these rights, benefits, and claims would be lost.  Therefore, the state still needs to be involved in marriage.

Now, in terms of minimal marriage, I agree that all forms of relationships ought to be allowed as long as everyone involved consents.  But relationships, and even love, has been conditioned by many pressures from culture, society, and religion.  It’s true that laws can enforce certain behaviors, but will it truly change the minds of the people?  There are still racial tensions even with the abolition of slavery and Jim Crow laws.  No doubt that there will still be anti-same-sex marriage sentiments.  Yes, it’s true that later generations will grow up with the new law and won’t have to go through the awkward social transition, but still, there are those that will not accept non-traditional relationships.

The other route is to go through a grassroots strategy where you convince the populace first, which would then overturn the discriminating laws.  Ireland, as of this writing, is the only country that has allowed same-sex marriage through the voting process of the people instead of through the legislative or judicial branches of government.  If you convince the people first, then you can actively change the hearts and minds of the people.  If you go through the governmental system, sure it’s quicker, but many people will still be opposed.

So which is better: a quick top-down approach from the government, or a slow bottom-up approach from the people?  I don’t have a quick answer to this because I find advantages and disadvantages on both.  This view’s answer is a top-down approach from the government, but I’d like to know why a bottom-up approach wouldn’t be as effective, if not more.  This leads me to the last position.

3. Privatize Marriage.  Finally, the other position is that there should be no relationship between the government and marriage.  Marriage, by all accounts, is a commitment, and the government doesn’t need to be involved in commitments.  Strictly speaking, marriage is not an institution, but a contract and while the government can enforce a contract, it cannot make a pre-planned contract by determining what the limits of a marriage can be.  This frees up people’s desires on what they personally want in a marriage.  This mainly comes from libertarians, but there are a few people on both sides of the political spectrum that argue for this position.  Here’s an excellent libertarian position arguing for privatizing marriage because as of now, marriage discriminates against single and polyamorous people.  This view is freer than option two in that there is no governmental involvement in marriage.  Here’s another view arguing that allowing same-sex marriage reinforces neoliberalism.  So why not go for privatizing marriage?  Researchers such as philosopher Brook Sadler argue for this position.  Her argument stems from the idea that marriage confers some goods, but the purpose of the state is not to confer goods.  Moreover, if a liberal state is supposed to remain neutral on “the good life,” then to be consistent, a liberal state cannot endorse any good over another, which means that they cannot endorse any type of relationship over another.  It seems odd that the state can give credence on what a proper relationship ought to be.  I take it that the main argument goes something like this:

  1. A liberal state remains neutral regarding “the good life.”
  2. If a liberal state remains neutral regarding “the good life,” then a liberal state cannot endorse or promote one good over another.
  3. Therefore a liberal state cannot endorse or promote one good over another. (modus ponens 1,2)
  4. Promoting or endorsing a type of marriage is promoting or endorsing a good.  (To clarify, the type of marriage will allow same-sex and opposite-sex marriage, but it leaves out plural marriages, asymmetrical marriages, and other other type of relationships.)
  5. If the state promotes or endorses a type of marriage, then the state is not a liberal state, or at least, is threatening its liberal status.
  6. Therefore, the state is not a liberal state, or at least, is threatening its liberal status.
  7. To remain a liberal state, one ought not to promote or endorse a type of marriage.
  8. Therefore, the state ought not promote or endorse a type of marriage.

Well, I’m skeptical because it’s true that one is freer in the negative sense in that one can have any type of relationship one wants.  However, just because the government is out of the picture doesn’t mean that tyranny is therefore eradicated.  The tyranny of the majority is a powerful force.  Suppose that there were no laws regarding race or gender.  I doubt we would therefore have greater equality.  As of now, there are no laws about whether one can or cannot be polyamorous.  However, our society has built up these ideals of what is considered a proper, “real” relationship.  So yes, we can date whomever we want, but as a society, we look down upon ethically non-monogamous relationships as if to say that this is a non-serious, non-committed, purely-for-fun relationship.  If there was a law to allow plural marriages, there may be some backlash at the beginning, but eventually, everyone would get used to it and arguing that we should get rid of this law would be seen as backwards.  This, then, is my worry of privatizing marriage: it would widen the inequalities of recognition.  Certain ideas, institutions, and systems of thought would become the norm and minority opinions, behaviors, and world views would become the fringe.  Eventually, they could remain on the fringe or they would become “abnormal.”  What I’m saying is that laws can restrict people, but they can also protect people.  Relating this topic to sexuality, one worry is that without the law to protect the outlaws and rebels, they will be shunned and discriminated against.  Not legally, but culturally.  At its worse, it could endorse heteronormativity—the assumption that heterosexuality, gender differences, and sexual expressions are the default positions.  Social expectation and social constraints regarding sexuality and gender follow from heteronormativity.  What this means is that if you don’t fall in line with these expectations, one will be criticized by not following the heterosexual norms.  To fit in our society, you must follow these roles.  The more you go outside the societal expectations of a conventional relationship, the more that you get messages from society, peers especially, that you need to conform to the social standards.  You may get pressure from co-workers and friends.  Heteronormativity is part of the social institutions of our culture and by revealing this, we can see the effects and cultural biases regarding sexuality and gender.  Now, in an obvious sense, this marginalizes gays, lesbians, bisexuals, and queer people, although that has been slowly changing.  But this also marginalizes single parents (because they don’t fit in line with what the family ought to be), people who don’t fall in line with their gender roles, or those who just prefer to stay single.  It pushes people to get married with the opposite sex and only one person, even if there are those who desire not to.  And if people don’t fit in with that model, then they will be socially shunned.

All of this is to say that privatizing marriage could lead to this outcome, but not necessarily.  However, what I find troubling in privatizing marriage is that it leaves out the politics of recognition, which leads me to my next concern.  The conclusion states that the state ought not promote a type of marriage, which I consider true.  However, this does not entail that the state ought not recognize—and not promote or endorse—any type of relationship.  On this front, I think Brake is on to something.  Rejecting one type of marriage does not mean that one therefore ought to reject all types of marriage.

Through these thoughts, I find the second and third options better, but the second option more tenable.

That’s all for this post.  In my next post, I’ll discuss new forms of relationships regarding the SCOTUS decision, with a focus on polyamory.

[1]. I say the consequences of this ruling rather than the ruling itself because I believe that for me to make an adequate opinion of the ruling itself, I’d have to be familiar with legal arguments and standings.  I’m not a lawyer, so I can’t give an adequate opinion regarding legal standings, more so with constitutional law.  I have read the dissenting opinions and I do find the arguments inadequate, however.  Yet, there is something to be said about whether the courts have the authority to order a legislative order to the point where the courts become a super-legislative, or whether the courts ought to stay out and let the people decide.  I will not delve in that category since that is beyond the pale of this post.  Rather, I want to focus on what the ruling does to society, which is why I want to focus on the consequences of the ruling.

[2]. What is an asymmetrical marriage?  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.

UPDATE (July 11, 2015): John Danaher has written about Claire Chambers article for a marriage-free state.  I’ve included it in my post, but you can also see it here.

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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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2 Responses to Legalizing Same-Sex Marriage, Part One: The Relationship Between the State and Marriage

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

  2. Pingback: Legalizing Same-Sex Marriage, Part Three: Should Marriage even Exist? | Shaun Miller's Ideas

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