Legalizing Same-Sex Marriage, Part Three: Should Marriage even Exist?

I have started to think about the latest SCOTUS decision regarding Obergefell v. Hodges and I’ve had three thoughts about this issue.  They aren’t conclusive, but merely a starting point to continue thinking about these issues.

In part one, I looked at whether the government ought to get involved in marriage and I concluded that it may play a minimal role, but I still had some reservations.

In part two, I looked at Chief Justice Roberts dissent and concluded that he is partially right in that designating marriage equality to simply monogamy is arbitrary and that the arguments for supporting same-sex marriage can be the same to support plural marriages.  I found CJ Roberts argument sound.

In this post, I want to very briefly discuss the larger issue on whether marriage ought to exist at all.  This is a grander proposal because the philosophical literature has been vast on this issue and I cannot keep up.  I will, however, try to give an overall general view without getting bogged into the nuances of the various critiques.

III. Should Marriage still Exist?

There are those who argue that marriage should be abolished because it is a patriarchal, heteronormative institution.  The main question is that marriage has been unjust, so why keep marriage?

There are three main responses to the question.

1.  Keep the concept of marriage closed.  This view states that marriage has been around for a long time.  It is not broken.  So why fix it?  The main idea is that marriage has traditionally been around two people who love each other, and this is a proper relationship.  Any other type of relationship is illegitimate.  There is no problem, therefore, because we’ve had this institution for a long time.

From the start, I find this view false.  The concept of marriage has evolved, as I have pointed out in part one.  Moreover, marriage has been patriarchal, heterosexist, and unequal.  For the longest time, marriage has benefited men.  As an example, rape within marriage was considered impossible because the woman was legally subsumed by the man.  But now, marriage has changed where there are some equalities which challenges the status quo.  With the passing of same-sex marriage, the concept of marriage may change once again.  However, any change to marriage is very slow and it takes a long time to convince people to change their minds because the starting default point is that only one type of marriage is legitimate and other types of relationships are “not real” relationships.

2. Keep the concept of marriage open.  The thinking behind this argument is that just because an institution started out in an unjust way, it doesn’t mean that we can’t reform it.  But why keep marriage?  It’s because our society values marriage as a way to show that the relationship is “serious” and legitimate.  Coming from Brake, her answer is that“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).”  Therefore, having the government involved would give legitimacy to what type of relationships are legitimate and offer protection whereas if left to the whims of the tyranny of the majority, then one type of relationship could be seen as the norm and other types could be seen as illegitimate.  Legal recognition will help normalize the relationship.  If same-sex couples can get married, then over time, same-sex marriage will simply be called “marriage” and same-sex couples will eventually be normalized and no longer seen as the fringes of society.

So Brake’s answer to the question is that we should keep marriage because it gives some legitimacy to personal relationships.  Any relationship can be legitimate under her minimal marriage model.  But I find this problematic.  It seems that keeping marriage and making it the higher form of what a relationship ought to be makes single people illegitimate, or those who prefer to go through life solo.  Brake tries to go against a hierarchical system of relationship and sexual value, but I think she falls into it.  The hierarchical system is from Gayle Rubin.  Rubin argues that the system falls into this sequence:  first is marital, reproductive heterosexuals, followed by unmarried monogamous heterosexuals.  Next would be the solitary heterosexual, followed by stable, long-term lesbian and gay male couples, which are gaining respectability, but promiscuous lesbians and gays are barely above the bottom of the hierarchical pyramid.  The bottom of these sexual castes are transsexuals, transvestites, fetishists, sadomasochists, porn models, and sex workers.

Not my image

Notice that as one goes inward on the hierarchy, people are considered more mentally, emotionally, socially stable, gain institutional support, and reap in the benefits of such support.  As one goes outward on the scale, there’s a presumption of mental illness, crime, economic sanctions, and disreputability.  These activities are considered self-destructive patterns, emotional aggression, or immaturity.  This discourse forms the idea that sex within the confines of marriage, love, and reproduction is considered “good” and “normal” sexual activity.  The more inward one is on the scale, the more “complete” that person is.  Any sex that is unmarried, promiscuous, nonprocreative is deemed “on the fringe,” “abnormal,” or “unnatural.”  If people are married and considered legitimate, then anyone practicing on the lower sexual castes are not legitimate and therefore “abonormal.”  Indeed, one can see this in Justice Kennedy’s opinion: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”  Marriage, whether one is gay or straight, is the default of what is considered the highest ideal of what a relationship ought to be.  It is as if somehow marriage transforms the people involved into “something greater.”  There is a hidden message that those who do not get married are not entirely complete.  Bella DePaulo calls this singlism.  Here’s an excellent post on how SCOTUS basically shamed single parents, and my worry is that Brake may be doing the same.

However, one the of the benefits of expanding the concept of marriage is that it will broaden different types of relationships so that they will be recognized as acceptable.  One criticism of marriage from queer theory is that marriage is an oppressive institution.  Brake’s hope is by allowing different forms of relationships into the marriage tent, then the institution of marriage will change from within so that it will no longer be oppressive.

I like Brake’s suggestion, but I think it falls into a trap if marriage has legitimate status.  It takes care of the polyamory, but it leaves out the singles.  Whether it’s a full-blown marriage or a minimal marriage, government incentives for marriage—no matter what gender—discriminate against single individuals.  Moreover, if the point of expanding marriage is because it helps create legitimacy to alternative relationships, it is true that having the government recognizing it may help create the legitimacy, but it is still creating an “us vs. them” mentality. Perhaps with the open concept, we must not be dogmatic and consider whether the proposed relationship can be included into the tent.

3. Get rid of Marriage. On the other side, we have Nicola Barker who argues that the formal institution of marriage remains the same, and even those who are in a relationship, as long as it resembles marriage, then the relationship is legitimate.  When same-sex couples argue that they are being discriminated against, they reveal that they are not that different from heterosexual couples.   Thus, the marriage tent doesn’t change, but it simply expanded so that same-sex couples can be part of the tent.  In other words, marriage isn’t expanded, but extended to same-sex couples, which makes lesbian and gay families part of the heteronormative criteria of what is considered a “normal” family.  Since the starting point of marriage was patriarchal and heteronormative, making the marriage tent larger does not simply get rid of the patriarchy and heteronormativity.  Rather, the patriarchal and heteronormative system within marriage will actually change same-sex couples to a heteronormative and patriarchal relationship.  I won’t go into the details here, but there is some empirical studies that show that even same-sex marriages often supported gender hierarchy in that traditional gender roles were acted out through one partner adopting the role of the other gender.  One partner is seen as the “male/masculine role” whereas the other partner was deemed as the “female/feminine role.”  The message is that same-sex marriage isn’t an equalizing force; rather, marriage simply reduces same-sex couples into a heteronormative relationship.  Instead of queering marriage, it is straightening same-sex couples.  Marriage, then, is an assimilationalist institution.  Any relationship that does not resemble marriage, sometimes known as “outlaw relationships,” cannot transgress the rubric of marriage because the legal structure places boundaries on what is considered a legitimate relationship.  Even by legalizing same-sex marriage by granting them the same benefits and privileges as heterosexual marriages, there is still a widening gap of inequality between coupled and non-coupled individuals.  In other words, keeping marriage, even same-sex marriage still reinforces coupledom and heteronormativity, which can stigmatize alternative models of relationships and intimacy.  Barker notes examples such as polyamory, communal living and chosen families outside the nuclear-type model.  Instead, what has happened is that the dichotomy is set up where there is a perception of “responsible/irresponsible” sexuality and relationships.  But what is considered “irresponsible” gets shunned.  Even though same-sex couples are slowly being assimilated to the “responsible” category, it still leaves out many people who are in the “irresponsible” category, namely those that don’t fit in the marriage model.

Barker’s solution is to have a politics of recognition alongside redistribution, which will help us go beyond marriage.  For Barker, true recognition has be transformative rather than reformative.  The worry from Barker is that same-sex marriage is assimilation and that it gives state-sanctioned desire.  In a way, it makes outlaw relationships invisible and endorses only one type of relationship.

To be honest, I’m torn between options two and three, but I think there’s a middle ground.  Cheshire Calhoun tries to go for a middle position where we should aim for option two but with the goal of aiming for option three.  I don’t have enough knowledge to get a sense of what we can or ought to do with reforming or abolishing marriage.  Should we ask for a reformation, or for a revolution?  I cannot give a full answer, but my intuitions tell me that going for a middle ground may be the best option.  If option three turns out to be the most just, then, as of now, we have to broaden our conception of marriage.  It could come to the point where broadening the concept so large may make the concept so watered down where the concept becomes meaningless.  After all, if the institution of marriage evolves where it is just for love, then it may come to the point where people get together without getting married, because what would be the point if there is no governmental involvement?  Bertrand Russell predicted that marriage will become pointless except for those involved in religion or royalty.  In which case, that may be the goal intended, according to option three.  But again, I cannot give more of a sustained answer until I have done more research on this issue.

Ok, I have given a lot of thought on this, but there is definitely more to say and think about.  Eventually, I plan to research this area to give more substance to these thoughts.

About shaunmiller

I have just completed a visiting position as an assistant professor at Dalhousie University. My ideas are not associated with my employer; they are expressions of my own thoughts and ideas. Some of them are just musings while others could be serious discussions that could turn into a bigger project. Besides philosophy, I enjoy martial arts (Kuk Sool Won), playing my violin, enjoying coffee around town, and experimenting with new food.
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