Feminism, Liberalism and Marriage¹ 

Clare Chambers 

University of Cambridge

cec66@cam.ac.uk

www.clarechambers.com  

Feminists have been pointing out the peculiarities of the marriage contract for at least a century and a half, but to no avail.² 

Feminists have long criticised the institution of marriage.³ Historically, it has been a fundamental site of women’s oppression, with married women having few independent rights in law. Currently, it is associated with the gendered division of labour, with women taking on the lion’s share of domestic and caring work and being paid less than men for work outside the home.⁴ Symbolically, the white wedding asserts that women’s ultimate dream and purpose is to marry, and remains replete with sexist imagery: the father “giving away” the bride; the white dress symbolising the bride’s virginity (and emphasising the importance of her appearance); the vows to obey the husband; the minister telling the husband “you may now kiss the bride” (rather than the bride herself giving permission, or indeed initiating or at least equally participating in the act of kissing); the reception at which, traditionally, all the speeches are given by men; the wife surrendering her own name and taking her husband’s.⁵ 

And yet, despite decades of feminist criticism of the institution of marriage, the institution resolutely endures – though not without change. In the UK, for example, recent years have seen new laws allowing couples to marry in a wide variety of locations, where before they could marry only in certain religious buildings or register offices, and further changes are planned to allow marriages to take place anywhere. With this widening of locations comes a widening of possibilities for the marrying couple. In April 2005 Prince Charles, the heir to the throne, married Camilla Parker-Bowles, the woman with whom he had had an affair throughout his marriage to Diana, Princess of Wales – even though it had been widely believed that social and religious norms would mean the couple would never be able to marry. Most significantly of all, since 2005 the UK has allowed homosexual couples to register civil partnerships – one step short of marrying that confers almost identical rights. This move follows the legalisation of same-sex marriage or civil partnerships in the Netherlands, Belgium, Spain, Canada and parts of the USA. 

What should egalitarians say about marriage, and particularly about reformed marriage? In this paper I consider two egalitarian approaches: feminism and liberalism. Feminists have been the main critics of the institution of marriage, and in the first part of the paper I discuss feminist criticisms. I argue that feminists attack marriage from several different angles, which can leave the feminist position somewhat confused. In particular, it is not possible to develop straightforwardly feminist reforms of marriage, since any proposed reforms meet some feminist concerns but exacerbate others. I argue that the way to reconcile feminist accounts is to understand the importance of marriage as both symbolic and institutional, an understanding which suggests that feminists should support the abolition of state-recognised marriage. 

In the second part of the paper I consider liberalism. Although liberals do not usually criticise marriage I argue that they too should support its abolition. Since liberals are also egalitarians they should be swayed by feminist arguments but, additionally, the subset of political liberals should oppose state-recognised marriage as a violation of liberal neutrality. 

In the third part of the paper I briefly discuss options for regulating intimate relationships in a society without state-recognised marriage. I advocate what I call piecemeal rather than holistic regulation, with the possibility of combining voluntary contracts with directive regulation. 

1. Feminist critiques

 

My current position on marriage is that I am against it. … Politically, I am against it because it has been oppressive for women, and through privileging heterosexuality, oppressive for lesbians and gay men.⁶ 

In this quote, and in feminist argument more generally, we can identify two distinct strands in feminist critiques of marriage. Both are common, even common-sensical, and yet the two are not straightforwardly compatible. The first states that traditional marriage is bad because it oppresses women. The implication of this critique is that being married makes those who are married worse off, if they are women. The second critique is that traditional marriage is bad because, at least when same-sex marriages are forbidden, marriage privileges heterosexuality. The implication of this critique is that being married makes people, both men and women, better off: it provides benefits that are unjustly denied to homosexuals. At face value, these critiques seem in tension. If marriage oppresses at least some of its participants, why would homosexuals want to participate in it? On the other hand, if marriage ought to be extended to homosexuals because it confers privilege, what have feminists been complaining about all this time? And yet the two critiques are found together in the writings of many feminists. As the editors of a special edition of the journal Feminism & Psychology on marriage note, the articles “indicate the struggles that married feminists undergo in choosing to participate in an institution that is both the heart of heterosexual privilege and the heart of heterosexual women’s, lesbians’ and gay men’s oppression.”⁷  

In what follows, I discuss these different strands separately. I divide each strand into what I call practical and symbolic effects. This distinction is not rigid but indicates the difference between ways in which marriage might affect individuals’ material or legal status and ways in which it consolidates or instantiates social norms or ideological values. My aim is to show that this four-way split in common feminist critiques of marriage explains why it can seem so difficult to develop a coherent feminist position and to be sure which sorts of reforms are progressive and which are reactionary. It explains, that is, the troubling ambiguities expressed by Merran Toerien and Andrew Williams, who label themselves a “feminist couple”. “In short,” they write, “we want to get married and we do not.”⁸  

1.i: Marriage oppresses women: practical effects 

Perhaps the first feminist critique of marriage is that it has practical effects on women that make them worse off. Practical, empirical harms to women resulting from marriage include the contingent facts that marriages tend to reinforce the gendered division of labour, which itself means that women earn less and are less independent than men; that they reinforce the idea that women do most of the housework, even if they work outside the home, which saps their energies and dignity; and that domestic violence may be exacerbated by marital concepts of entitlement and ownership.⁹ In past incarnations of marriage, when the institution left women with few or no rights over their bodies, possessions, children and lives, practical feminist critiques were particularly salient. But, as Claudia Card insists, it would be wrong to think that practical harms have ceased as laws have changed: the progress embodied in the criminalization of marital rape and violence, she writes, “has been mostly on paper. Wives continue to die daily at a dizzying rate.”¹⁰  

In general, these feminist critiques of marriage depend for their force and applicability on the laws of marriage in operation in any particular time and place, and on the social norms and sociological facts that accompany them. Thus Janet Gornick argues that truly feminist marriages must involve an egalitarian division of household and caring labour, and suggests state action to enable and encourage both partners to work fewer hours outside the home than is currently normal, devoting their remaining time to domestic labour.¹¹ Such changes are not easy. Changes to marriage law in favour of gender equality are hard-won victories resting on the suffering of many women, and changes in social norms concerning domestic labour are extremely hard for even feminist women and would-be egalitarian couples to achieve.¹² Nonetheless, we might think that these sorts of critiques can be overcome, that marriage can in theory be compatible with feminism, even if it is not compatible yet. ¹³ 

Card is more sceptical. On her analysis, the very idea of marriage as a state-awarded license giving claims over another person’s property and person is profoundly problematic, for it exposes individuals to each other and puts in place legal barriers to separation. In doing so, marriage inevitably leaves its participants (largely its female participants) vulnerable to abuse. As she puts it: 

For all that has been said about the privacy that marriage protects, what astonishes me is how much privacy one gives up in marrying. … Anyone who in fact cohabits with another may seem to give up similar privacy. Yet, without marriage, it is possible to take one’s life back without encountering the law as an obstacle.¹⁴ 

This issue of privacy is important and will be returned to. 

1.ii: Marriage oppresses women: symbolic effects 

Within the general claim that marriage disadvantages women comes another set of critiques, this time based on its symbolic disadvantages rather than its practical effects. This time the argument is that marriage harms the position of women as a whole group, that it casts them as inferior. One way marriage might cast women as inferior is by constraining their appropriate options and ambitions. Thus Susan Moller Okin argues that “marriage has earlier and far greater impact on the lives and life choices of women than on those of men”¹⁵, with girls less likely to aspire to prestigious occupations or feel able to contemplate being happily independent. Anne Kingston also investigates the symbolic aspects of marriage, arguing that marriage continues to exert a grip on women who feel compelled not only to marry but also to conform to ever more costly symbolic standards.¹⁶ Pierre Bourdieu describes this form of symbolic effect as “symbolic violence”. Symbolic violence affects thoughts rather than bodies, and is inflicted upon people with their complicity.¹⁷ In other words, symbolic violence occurs when, through social pressures, an individual feels herself to be inferior or worthless. 

One particularly pernicious form of symbolic violence that marriage enacts on women in contemporary western societies is the sense that they are flawed and failing if unmarried. This perception may be encouraged by pressure from peers, family, news reports, novels, television, film and self-help books. Research shows that many heterosexual women see single life as a temporary phase preceding marriage, and that being single for longer or when older is construed as sad and shameful, and at least partially the fault of the single woman herself.¹⁸ A particularly striking example of this sort of pressure can be found in The Rules, the self-help book that instructs women to secure marriage by following a strict set of guidelines such as not telephoning men, not describing their own sexual desires or asking them to be met, and not minding when men are angry. Feminists wishing to ignore, let alone criticise, The Rules are sharply admonished: 

If you think you’re too smart for The Rules, ask yourself ‘Am I married?’. If not, why not? Could it be that what you’re doing isn’t working? Think about it.¹⁹ 

No matter what the laws of marriage are at the time, and regardless of whether marriages are characterised by a gendered division of labour, feminists will always criticise an institution that enacts this sort of symbolic violence on women. And, of course, the more women do in fact enter into marriage, the more normalising marriage becomes, and the more single women will (be encouraged to) lack self-esteem. 

We might ask, however, whether it would matter if women felt pressure to enter into marriage if it were the case that the practical aspects of marriage were egalitarian. In other words, if marriage no longer disadvantaged women practically, would it matter if they were pressured to enter it symbolically? We might have a number of autonomy- and diversity-based objections to such pressure, which would apply to both women and men. But one way in which pressure to enter into even reformed marriages might particularly harm women (and thus be of particular concern to feminists) is through the simple fact that marriage has historically been an extremely sexist institution. Even if these historical oppressions have been reformed, such that wives are equal to husbands in all areas of law, marriage remains an institution rooted in the subjection of women. As Toerien and Williams argue, “marriage remains thoroughly tainted by being a long-standing buttress for the patriarchal domination of women.”²⁰  

This question, of whether the patriarchal history of an institution continues to taint its modern incarnations even if the explicitly patriarchal aspects have been reformed, is a vexed one.²¹ It seems obvious that institutions need not remain unjust forever, beyond the abolition of that which made them unjust in the first place. For example, cotton-picking and chimney-sweeping are jobs that were once done by slaves and children respectively, both unjust forms of labour. But those occupations do not remain unjust once slavery and child labour are abolished: the injustice does not outlive its concrete manifestation.  

What makes marriage different is that it is an institution entered into largely because of the meanings it represents. Couples may marry so as to obtain various practical, legal or financial benefits, but a key aspect of most marriages is the statement the couple makes about their relationship. For the marrying couple and for society in general, the symbolic significance of marriage is at least as important as its practical aspects. This being the case, it is impossible to escape the history of the institution. Its status as a tradition ties its current meaning to its past. This feature of marriage makes the issue of what the institution really does represent, what meanings it carries, particularly pertinent. 

1.iii: Marriage privileges heterosexuals: practical effects 

The other strand of feminist critique of marriage argues that marriages, as traditionally understood and permitted, privilege heterosexuality and discriminate against homosexuality. According to this line of critique, marriage benefits those who enter into it. Thus feminists, who favour gender equality and oppose discrimination on the grounds of both sex and sexuality, must oppose marriage as long as it is not open to same-sex couples. Heterosexual marriage would still be problematic, in other words, even if it became internally egalitarian.²² Many feminists thus campaign for the extension of marriage to same-sex couples, and some argue that extending marriage to homosexuals would utterly transform the institution. Margaret Morganroth Gullette writes that she was transformed from “a rebellious critic of the institution into a vocal and explicit advocate” as the result of “recognizing and honoring the growing desire of some of my lesbian friends and relatives to enjoy the protections that marriage now extends only to heterosexuals.”²³ 

Once again, this line of argument can be separated into practical and symbolic strands. Practically, marriage might privilege heterosexuality if the law were structured so as to give married couples particular rights that are denied to unmarried couples. Such laws would discriminate against both homosexual couples and heterosexual unmarried individuals (whether single or in a relationship). Some of the rights of marriage are unambiguously advantageous to those who have them. In the UK, for example, spouses do not have to pay inheritance tax when inheriting each other’s property, unlike those in any other form of relationship.²⁴ Similarly, Thomas Stoddard defends same-sex marriage “despite the oppressive nature of marriage historically, and in spite of the general absence of edifying examples of modern heterosexual marriage.”²⁵ One key argument for Stoddard is the legal and customary advantages given to married couples, such as rights to pensions, health insurance and inheritance.²⁶ 

It is important to note that the existence of tax and other benefits for married couples does not simply mean that unmarried individuals cannot access a benefit.  When that benefit is a tax break or similar it imposes a measurable cost on those who do not receive it, since their tax burden will necessarily be higher than it would be if the benefit did not exist for others. In other words, the move from tax equality to tax breaks for the married cannot be Pareto-optimal: the benefit for the married can be achieved only at the expense of the unmarried.²⁷ Since marriage is unjust in both its effects on women and its unavailability to homosexuals, it follows that those who are married are benefiting from injustice. 

1.iv: Marriage privileges heterosexuals: symbolic effects 

Heterosexual-only marriage also has discriminatory symbolic effects. By recognising heterosexual marriage the state confers legitimacy and approval on such partnerships and denies it to homosexual ones. Thus Maria Bevacqua, a feminist lesbian, argues: 

The exclusion of a portion of the population from a major social institution creates a second-class citizenship for that group. This is a humiliating experience, whether as individuals we feel humiliated or not.²⁸ 

Bevacqua’s insistence that the humiliation is independent of the feelings of the humiliated emphasises the deeply symbolic nature of the institution. Marriage presents and represents a particular symbolic meaning that transcends individuals’ subjective self-understandings and experiences. Instead, it appeals to supposedly shared social understandings of value, understandings that can fail to respect minority and historically-oppressed groups. In particular, marriage reinforces the idea that the monogamous heterosexual union is the (only) sacred form of relationship. 

Stoddard argues that marriage is “the centrepiece of our entire social structure” and notes that the Supreme Court has called it “noble” and “sacred”. ²⁹ Understandably he “resents” and “loathes” the fact that, according to the Court and US policy, homosexuals are not deemed able to enter into such noble and sacred relationships. Like Bevacqua, Stoddard believes that legalising same-sex marriage is a crucial egalitarian step, even if many homosexuals have no desire to marry. Indeed, Stoddard argues that same-sex marriages would also benefit heterosexual women, as they would serve the feminist purpose of “abolishing the traditional gender requirements of marriage” and thus divesting the institution of “the sexist trappings of the past.”³⁰ 

1.v: Combining the critiques 

We are thus left with four feminist anti-marriage arguments: first, marriage’s practical oppression of participants (married women); second, its symbolic oppression of participants (women); third, its practical oppression of non-participants (homosexuals and unmarried heterosexuals); fourth, its symbolic oppression of non-participants (homosexuals and unmarried heterosexuals). The fact that these can come apart, that not all apply to all changes to marriage or positions on marriage, renders the debate exceedingly complicated.  

Consider, for example, whether it would be desirable from a feminist perspective to legalise same-sex marriages. With the four feminist critiques in mind, we can see that the issue is by no means clear-cut. Heterosexual-only marriage is symbolically oppressive to women and to homosexuals. If homosexuals are allowed to marry, it is not clear whether its oppressiveness will rub off onto homosexuals, making them worse off, or whether the radical progressiveness of homosexuality will rub off onto marriage, making all women better off. As we have seen, Stoddard argues that progressiveness will prevail. Paula Ettelbrick, on the other hand, predicts the triumph of patriarchy and reaction: “marriage will not liberate us as lesbians and gay men. In fact, it will constrain us, make us more invisible, force our assimilation into the mainstream, and undermine the goals of gay liberation,” she writes.³¹ For Ettelbrick, these effects will not be combined to homosexuals, since “[g]ay liberation is inexorably linked to women’s liberation. Each is essential to the other.”³² Card similarly argues that, although it is unjust that marriage is denied to homosexuals, the injustice of the institution as a whole means that lesbians and gay men should not fight for the right to marry – just as white women should not have fought for the (equal) right to be slave-owners.³³ 

We can identify similar ambiguities in the issue of allowing homosexual couples to enter into civil partnerships but not marriages (as is the case in the UK). Such a policy has two advantages from the feminist point of view: first, homosexual couples are given access to the practical benefits of marriage and second, the idea of a civil partnership breaks away from the patriarchal symbolism of historically-oppressive marriage. Some feminists also argue that homosexual civil partnerships will benefit heterosexual women, whether married or not, by undermining both the hegemony of marriage and the idea that traditional gender roles must prevail within it. Indeed, one way of breaking away from the patriarchal history of marriage might be to offer civil partnerships to heterosexual couples as well as to homosexual ones (currently forbidden in the UK). The status of civil partnership would thus be doubly egalitarian: it would emphasise equality between heterosexual and homosexual couples since both could enter into it, and it would emphasise equality between men and women by breaking from patriarchal history and, presumably, by imposing equal terms on each member of the partnership. 

However, the policy of distinguishing civil partnership from marriage also has disadvantages. The distinction may, counter to the previous argument, further entrench the gendered nature of marriage, since the idea that marriage must be between a man and a woman is reinforced, and with it traditional gender roles. Moreover, the fact that marriage symbolically oppresses homosexuals remains, since the discriminatory and hierarchical distinction between heterosexual and homosexual couples is unchanged if only heterosexuals may marry. Finally, such a move does nothing to challenge the hierarchy that marriage enacts between being partnered and being single, since rights are even more forcefully allied to the former and denied to the latter. Thus Celia Kitzinger and Sue Wilkinson argue: 

By re-branding as ‘civil partnership’ a union that is otherwise identical to opposite-sex civil marriage, civil partnerships achieve the symbolic separation of same-sex couples from the state of ‘marriage’. They grant same-sex couples the possibility of legal conformity with institutional arrangements which formally recognize heterosexual intimacy while effectively excluding us from that very institution. The irony is that this separation is positively valued by many feminists and LGBT activists because it is the symbolism of marriage – and not the civil institution itself – that is the target of their critique.³⁴ 

The attention that Kitzinger and Wilkinson draw to the symbolism of marriage is crucial. Symbolism is affected by law but is not directly under the control of the state. Whether the state recognises marriages, the benefits or burdens it imposes on married people, and the criteria for which sorts of couples may marry all contribute to the symbolism inherent in marriage. However, marriage may have symbolic effects that are not directly the result of current state policy, such as when marriage remains symbolically oppressive to women as a result of its patriarchal roots, or when women feel under great pressure to marry if they are to meet the expectations of family and friends or to feel self-esteem. 

The question of how, from a feminist standpoint, we can best understand and interact with the institution of marriage is thus incredibly complex, and this complexity is mirrored in the diversity of feminist positions on the issue. One way of understanding this diversity is by returning to the idea that marriage is an institution.³⁵ I have highlighted a puzzle, which is that feminists seem to think that marriage is both oppressive to its (female) participants and oppressive to its non-participants. These two oppressions seem in tension, but the tension might be resolved if we take a broader view. It is possible that, if the institution of marriage exists, it is better to be married than not, but that the very existence of the institution is oppressive. In other words, it might be that women are better off if marriage does not exist at all; but if marriage does exist they are better off married than unmarried. On this account juxtaposing marriage’s oppressiveness to women and to homosexuals fails to compare like with like: marriage is oppressive to women as compared to a world without marriage; it is oppressive to deny homosexuals marriage only insofar as that institution does exist. 

This analysis fits with some of the examples of oppression just given. The symbolic pressure on women to marry, and the idea that they are worthless if unmarried, means that if marriage exists women are better off married than unmarried. This view is compatible, then, with the idea that it is harmful to be denied access to marriage if the institution exists and confers practical or symbolic benefits. 

The natural implication is that both women and gay men are better off, and justice is served, if marriage ceases to exist as an institution. The ambiguities as to whether particular marriage reforms are feminist all apply to reforms that retain the institution. Abolishing the institution should satisfy all feminist critiques, and is thus a policy implication around which feminists should unite. 

2: Liberal critiques 

The foregoing analysis of feminist criticisms of marriage is instructive for liberalism, even though liberals are not traditionally critical of the institution. Insofar as the feminist arguments proceed from the value of equality they ought also to be convincing to egalitarian liberals.³⁶ Moreover, there are additional reasons for liberals, specifically, to be suspicious of marriage, and these reasons stem from the symbolic nature of marriage.  

2.i: Marriage as a symbolic institution 

To see the relevance to liberalism of the symbolic value of marriage, consider right-wing defences of traditional marriage. Right-wing objections to homosexual marriage do not tend to prioritise the heterosexual exclusivity of tax and other legal rights as ends in themselves. Rather, marriage must remain heterosexual, according to right-wing discourse, in order to retain heterosexuality’s symbolic hegemony. The argument here is that marriage between heterosexuals has a particular sanctity, whether religious or secular, and that the state should preserve this symbolically superior institution. Extending marriage to homosexuals would, on this account, undermine the protected status of heterosexual marriage. 

Martha Nussbaum considers the right-wing argument and finds it both normatively unappealing and conceptually perplexing: 

why should it be thought that recognition of same-sex marriage would ruin heterosexual marriages? It is difficult even to identify the logic behind this thought. Is the idea that heterosexuals are so unhappy with the institution of marriage that they will all rush out and choose same-sex unions if they are made available? Surely that is highly unlikely. Or is the idea that in some nebulous way the institution will be degraded or demeaned, made shameful, by contact with that which is shameful? This seems the more likely of the “defense of marriage” idea, and yet the mechanism by which something “good” becomes shameful by proximity to something allegedly shameful is reminiscent of the magical thinking involved in disgust, with its core ideas of contamination and contagion.³⁷ 

While I share Nussbaum’s normative distaste for these right-wing homophobic arguments, I do not share her failure to understand their underlying logic. Nussbaum rejects as “magical” the idea that homosexual marriage would undermine the special status of heterosexual marriage, since she can see no way in which a heterosexual couple’s marriage would be affected by other people’s homosexual unions. However, once we have recognised the profoundly symbolic nature of marriage, this process is obvious. The very function that marriage serves within both a society and a state is to legitimate and prioritise certain sorts of relationships, to demarcate them as worthy of special consideration, validity and respect. As we have seen, it is this symbolic privileging of marriage that lies behind many of the feminist critiques, since they assert that marriage is shackled to deeply patriarchal gender relations. But if marriage is a symbolic institution it follows that allowing homosexual couples to participate changes the nature of the symbol. The more diversity is permitted within the scope of the privileged institution, the less approbation is reserved for any one particular form. Those couples whose marriages are founded on the belief of the particular sanctity and specialness of the heterosexual couple will certainly find that the meaning of their marriage changes if same-sex marriages are permitted. Indeed, that is precisely the hope of feminists who argue in favour of same-sex marriage: that marriage’s traditional oppression of women will be mitigated by the fundamental change in the symbolism of the institution. Nussbaum may certainly normatively dispute right-wing objections to this symbolic shift, but she should not dismiss them as nonsensical or superstitious. 

The fact that marriage is symbolic, and that feminist positions on it are fundamentally based on recognition of its symbolism, has fundamental implications for liberal arguments concerning state policy on marriage more generally. Despite her acute awareness of the practical oppressions of marriage,³⁸ Nussbaum argues that marriage must not be abolished: she writes that “to rule that marriage as such should be illegal on the grounds that it reinforces male dominance would be an excessive intrusion on liberty, even if one should believe marriage irredeemably unequal.”³⁹ But it is not true to say that individual liberty is threatened by removing legal status from marriage. As marriage is a legal institution, the law already intrudes on individuals’ liberty by defining the conditions under which people may marry and determining the legal consequences of marriage. This is a basic feminist observation, forming a crucial part of the feminist slogan ‘the personal is political’. It does not make sense to say that the personal sphere of marriage should, as a matter of liberty, be immune from political interference, because the personal sphere is already defined and regulated by politics. It surely would be a violation of liberty to make committed monogamous partnerships illegal, or to make illegal religious or secular ceremonies that celebrated those commitments. But it cannot reasonably be considered a limitation on liberty if the state fails to intervene in heterosexual monogamous relationships by failing to provide a secular marriage service. Nor will liberty be infringed if the state does not accord special rights to religiously married people or those who have undergone a private celebratory ceremony of partnership;⁴⁰ or if the state regulates disputes over the custody of children, the distribution of assets, or physical abuse regardless of the (marital) relationship between the disputing parties.  

Nussbaum’s failure to recognise the symbolic aspects of marriage thus leads her to advocate reforms to marriage law as they govern the rights and duties of married people, but not to question the role that marriage plays in society as a whole. But why, if the reforms that Nussbaum calls for are made, would state recognition of marriage be required? If there is to be any difference at all between a committed monogamous heterosexual partnership and a marriage, surely it must be precisely in the symbolic resonances that the institution of marriage has, resonances that inescapably chime with the institution’s history and traditions. Of course, there are various areas of intimate life that need to be regulated, such as joint property-ownership, child custody and care, shared incomes, immigration rights and next-of-kin status. I discuss options for such regulation in section 3. But if the state adds, over and above regulations for such activities that apply to non-married persons, a recognised, state-defined form of relationship known as ‘marriage’, it must be adding something symbolic: an endorsement of a particular form of life, one which gains much of its supposed strength and importance from its long history and its traditional centrality, both of which are profoundly patriarchal.⁴¹ 

The argument so far has relevance for all liberals. No liberal should support an institution that promotes injustice. For some liberals, however, it is permissible for the state to promote a way of life it if is valuable or autonomy-promoting. Perfectionist liberals such as Joseph Raz⁴² can endorse such a view, and Richard Arneson sets out a prioritarian defence of the institution.⁴³ For liberals like these the question is always whether marriage really does promote autonomy, or benefit the worst off, and the feminist arguments of Part 1 are of relevance here. Perfectionists and prioritarians can support marriage, but only if feminists such as Card and Sheila Jeffreys⁴⁴ are wrong when they argue that marriage is inevitably unjust. 

2.ii: Marriage and state neutrality 

For political liberals, however, an institution such as marriage does not have to be unjust in the sense of inegalitarian for it to be unjust in another sense: in violation of the political liberal value of state neutrality and, thereby, in violation of liberty. Political liberals are committed to the idea that the state should be neutral between conceptions of the good. The concept of state neutrality takes many different forms, but the version of state neutrality that is crucial to political liberalism is that of neutrality of justification: the state may not act so as to promote or discourage any conception of the good if the justification for so acting refers to the value or disvalue of that conception of the good.⁴⁵ As will be shown, there can be no reason to promote, endorse or recognise marriage that is compatible with such neutrality.  

State recognition of marriage shores up its symbolic status and, by doing so, prioritises one particular way of life: heterosexual monogamous coupledom. Even if same-sex marriage is allowed, state recognition of marriage still prioritises coupledom, monogamy, permanence and sexual relationships over more diverse forms of life.⁴⁶ This prioritisation stands in marked contrast to the state neutrality that political liberals (including Nussbaum) advocate. Why should any particular benefits accrue to committed sexual relationships above other relationships? 

William Galston insists that there are good reasons for a liberal state not only to recognise but also to promote marriage. He argues that the very survival of liberal democracy depends on “the character of its citizens and leaders”, and appeals to empirical evidence to support his claim that “[t]he erosion of the two-parent family structure … threatens to generate a growing subset of the population that cannot discharge the basic responsibilities of citizenship in a liberal democracy.”⁴⁷ It follows for Galston that the liberal state has a legitimate interest in promoting policies that encourage people to marry.⁴⁸ On Galston’s analysis the relevant policies must “bolster marriage by increasing the practical advantages it offers and by reinforcing its moral standing.”⁴⁹ He thus suggests changes such as tax regimes that incentivise marriage, laws making it harder for couples with dependent children to divorce, and an “intensive campaign” to promote marriage to both adult citizens and children in schools.⁵⁰ 

Galston’s account is interesting because it is a profoundly conservative policy programme justified on liberal terms. Suppose for the moment that it is true that liberal democracy depends for its survival on a certain sort of citizenry, and suppose that it is also true that this sort of citizenry depends on a certain family structure. May a liberal state then actively promote that family structure? This question recalls the liberal/communitarian debate, in which communitarians such as Charles Taylor argue that a consistent liberalism has to promote community since without a certain sort of community there can be no individual rights in the first place.⁵¹ The political liberal perspective on such questions is to permit only that government action which is absolutely necessary for the survival of a liberal citizenry. Consider an analogy with political and comprehensive liberalism. Comprehensive liberals such as John Stuart Mill argue that autonomy is crucial to human flourishing. Political liberals such as John Rawls compress this claim, authorising the state to ensure that all individuals are permitted to act autonomously but not to ensure that all individuals do in fact act autonomously.⁵² It seems, then, that the association between marriage and the survival of liberal democracy would have to be very strong indeed for a Rawlsian to endorse state promotion of marriage.  

But perhaps this account of political liberalism is too quick. I said earlier that political liberals are committed to neutrality of justification: policies must not be justified by reference to the value of a conception of the good. This idea might leave it open that policies such as the establishment and privileging of marriage could be justified on other grounds. For example, Charles Larmore explains neutrality in the following way: 

a political decision … can count as neutral only if it can be justified without appealing to the presumed intrinsic superiority of any particular conception of the good life. So long as a government conforms its decisions to this constraint, therefore, it will be acting neutrally. … Of course, some ends (e.g. the establishment of a state religion) are impermissible, because there can be no neutrally justifiable decision to pursue them. But any goals for whose pursuit there exists a neutral justification are ones that a liberal state may pursue.⁵³ 

Larmore’s account suggests that policies that appear to prioritise a conception of the good can be compatible with neutrality if another justification can be found. In this way Galston’s argument can be made compatible with political liberalism: since it refers to the political values of sustaining a democratic citizenry it does not violate neutrality. But this strategy seems rather disingenuous. Could we not justify any policy simply be inventing a spurious but neutral justification, when really we are motivated by non-neutral considerations? Even if our motivations are pure (i.e. purely political), does not the distinction between neutrality and perfectionism break down? As David Estlund writes: 

How could it be a legitimate reason for state action that certain arrangements of the family are corrosive of … key threads of citizen character that make a just, liberal democracy possible? This can easily look like a truck-sized loophole in contemporary liberalism. … I cannot help wondering if the face-to-face community of the missionary position has salutary effects on citizen empathy, and whether there might be some ingenious way to discourage other sexual positions through public policy. The argument from character is not easily contained.⁵⁴ 

Larmore’s rejection of established religion suggests, contra Estlund, that the argument from character can be contained: there are limits on the policies that can be justified neutrally, and established religion falls outside those limits. But the picture we get from Rawls leans towards the Estlund vision. Rawls argues that it would be a mistake to think that arguments in favour of school prayer and established religion cannot be endorsed by political liberals since “With some care, many if not all of these arguments can be expressed in terms of the political values of public reason.”⁵⁵ If political liberals can endorse established religion surely they can also endorse established marriage. The loophole remains open. 

We might ask, though, how far a politically liberal state may go. A state could hardly remain liberal if it coerced individuals into marrying. Nancy Rosenblum makes a similar point when she argues that accounts like Galston’s “have not addressed Laurence Tribe’s rhetorical question about the prohibition of polygamy in Reynolds: If monogamous marriage as a support of democracy was at stake, why not order the marriage of priests and nuns?”⁵⁶ If such coercion were required for a liberal democracy to survive it would clearly be self-defeating: a state that forced people to marry could not be liberal since it would surely violate individual liberty in a most profound way.  

And yet perhaps it is possible to formulate a version of Galston’s argument that resonates better with egalitarian liberal concerns. Two approaches suggest themselves. The first, which is similar to Galston’s, focuses on children and runs along the following lines: ‘It is an inescapable requirement of justice that we must design laws that protect children, since children are incapable of protecting themselves and cannot give meaningful consent. If state-recognised marriage were needed to protect children, then, this would be a legitimate political liberal policy.’⁵⁷ The second argument appeals to gender equality, and runs as follows: ‘The pursuit of gender equality is a legitimate part of justice. One way to achieve gender equality might be to design a version of marriage with strongly egalitarian requirements concerning the distribution of income, caring responsibilities and domestic work, and then put in place practical and symbolic measures to encourage men (and women) to enter into it. Promotion of this egalitarian marriage would be a legitimate political liberal policy.’⁵⁸ 

What are we to say of the two arguments? Consider first the child-protection argument. The concept of protection it uses is problematically vague. It is not part of liberalism to say that anything that would promote children’s interests can legitimately be mandated by the state. As Harry Brighouse and Adam Swift argue, parents also have rights and interests, and it is legitimate for them to prioritise their own interests in certain ways.⁵⁹ For example, it might benefit a child if her parents devoted all their leisure time to her amusement and education, but this does not mean that parents act wrongly if they sometimes pursue their own activities, and it is not part of liberal justice to compel them to do otherwise. However, there are undoubtedly some ways in which children’s interests can override their parents’ freedom. Rawls offers characteristically vague advice on this issue, noting that “the prohibition of abuse and neglect of children, and much else, will, as constraints, be a vital part of family law. But at some point society has to rely on the natural affection and goodwill of family members.”⁶⁰ Even the staunchest defenders of marriage cannot plausibly argue that it is necessary to prevent abuse and neglect; whether marriage is a crucial part of “much else” is anyone’s guess.  

There are, of course, many empirical questions here concerning children’s wellbeing. Card offers a strong argument for thinking that children may not be best served by “motherhood” as currently socially conceived, one that echoes but is not subsumed by Okin’s observation that families must be schools of justice such that unjust parental relationships, including traditional marriage, are harmful to children.⁶¹ For both theorists, state promotion of marriage is not the way to serve children’s interests. Empirical arguments against Card and Okin and in favour of marriage are made by several writers.⁶² It is beyond the scope of this paper to resolve these empirical questions, but we can see how the argument would have to proceed. In order to justify state promotion of marriage on the grounds of child protection the political liberal would have to show three things. First, she would have to determine the empirical facts about the effects of state-recognised marriage on children. Second, she would have to show that any benefits to children can appropriately be described in neutral, political terms. Third, she would have to show that these benefits legitimately outweigh considerations of equality and freedom that would otherwise tell against endorsing marriage. 

It is enormously difficult to know what the empirical effects of marriage are, not least because any study can only show us what the outcomes of non-marriage are in a society where marriage exists. It is possible that children of unmarried parents do worse than children of married parents in societies where marriage exists and is given great normative weight (although even here the empirical evidence is contested); but whether children would do worse in a society where marriage did not exist as a state category is simply not something about which we have evidence. The first step for a political liberal justification of marriage is enormously difficult, then. 

The second step, of providing neutral descriptions of outcomes for children, is also difficult. Suppose it were shown empirically that children with married parents had certain advantages over those with unmarried parents: perhaps they felt more secure and were more optimistic about human relationships. But suppose it were also shown that children with unmarried parents did better on other measures: they were more independent and resilient, and were more likely to question unjust social arrangements such as gendered hierarchies. Would there be any neutral way of choosing between these? How could an appeal to the interests of children so as to support state-sponsored marriage in such circumstances be neutral? 

The third step is also problematic. Preventing abuse to children is a legitimate political goal. But suppose it were shown (contrary to what I take to be the facts, but not contrary to all possible worlds) that abuse were less likely in families with a highly gendered division of labour. Would political liberals be able to promote such marriages and penalise egalitarian ones? 

I have not shown that it would be impossible to derive a political liberal justification of marriage on the grounds of children’s interests. However, I have argued that it would be enormously difficult to develop such an argument. At present, then, political liberals cannot support marriage by reference to children’s interests. 

What of the second argument, concerning state promotion of radically egalitarian marriage? Such marriage might sound appealing, but it cannot work for political liberals. Rawls states that political liberals “cannot propose that the equal division of labour in the family be simply mandated, or its absence in some way penalized at law for those who do not adopt it”⁶³ since the equal basic liberties require that people are free to choose an unequal division. As noted earlier, tax breaks and symbolic privileging of marriage do constitute penalties for the unmarried, so the promotion of radically egalitarian marriage seems to be ruled out. Here is a case, then, where political liberal and feminist policy might separate: if this radical institution could be made sufficiently discontinuous with patriarchal and heterosexual-only marriage, perhaps feminists should endorse the idea. On the other hand, perhaps both liberals and feminists should be suspicious of any institution that gave the state such extensive rights to regulate individuals’ daily lives. This issue is discussed in the following section. 

2.iii: Privacy and liberty 

Tamara Metz agrees that liberalism requires the “disestablishment” of marriage. However, the crux of her argument is that state involvement in marriage violates the liberal distinction between the public and private spheres. As she puts it, “with its numerous public-private border crossings, marriage challenges and unsettles one of liberalism’s most cherished methods for protecting liberty, equality and fairness.”⁶⁴ Metz’s idea is that state regulation of marriage is a straightforward violation of liberal freedom and privacy. Although distinct from political liberal arguments about neutrality, Metz’s argument is similar in some respects: for her too what is wrong with marriage is simply that the state interferes in it, not that it is unjust in itself. Metz’s argument is problematic, though, since the public/private distinction has been roundly criticised by feminists for its concealment and thereby sanctioning of private abuses, as emphasised in the piece by Card quoted earlier.⁶⁵ 

Nonetheless, Metz’s account connects to a final way in which state recognition of and legislation for marriage is illiberal: it involves the state regulating the most intimate aspects of people’s lives in ways that they may be unaware of, and certainly cannot control. When people marry, they seldom do so with complete (or even partial) knowledge of the legal implications. Getting married is thus entering into a contract without knowing what is in it. As Kitzinger and Wilkinson report, “it feels a bit like having signed a blank cheque”.⁶⁶ British couples contemplating marriage and looking for a summary of the legal implications will not readily find any information actually distributed by the state.⁶⁷ Moreover, even if a couple are fully aware of all the legal implications of their marriage, these can be changed at any time with neither their consent nor even their knowledge. As Sue Wise and Liz Stanley argue, “Problems with inheritance rights, next of kinship and so on are issues for non-married heterosexuals, as well as lesbians and gay men, coupled or not. If these rules do not work for so many people, would it not be better to fix them, instead of trying to fit ourselves into new and restricting pigeon-holes?”⁶⁸ 

3. Options for regulation 

I have offered a number of arguments in favour of the abolition of marriage as a legal category. From the feminist perspective the abolition of legal marriage would be a decisive break from the patriarchal and discriminatory associations of the institution, and is the only way to satisfy all the feminist concerns with marriage as it currently stands. Insofar as liberals are motivated by gender equality they ought to endorse the feminist arguments in favour of the abolition of marriage: all liberals, political or perfectionist, can support abolition on egalitarian grounds. I have also offered an argument against state-recognised marriage on the grounds of the political liberal value of state neutrality. Ambiguities and loopholes in the concept of neutrality make this argument somewhat problematic. Nonetheless on the most coherent reading of state neutrality (and on the assumption that the survival of liberal democracy and the protection of children are quite possible without state-recognised marriage) state recognition of marriage is impermissible, since it appeals to the non-political value of a particular conception of the good.  

Even if marriage is abolished as a legal category the question of how to regulate personal relationships remains, for it is no part of my argument to suggest that there is no place for state regulation of such relationships. Personal relationships may still have to be regulated so as to protect vulnerable parties, including but not only children; so as to regulate disputes over joint property; and so as to appropriately direct state benefits and taxes. Among these benefits might be included considerations such as immigration rights, next-of-kinship status and so on. Not all aspects of existing marriage law that give special recognition to couples are legitimate. But some may be compatible with or even required by justice, and so it is important to theorise how they should be revised for a marriage-free society. 

There are many options for such regulation, but in this section I briefly consider two key issues. The first is whether relationships should be regulated in a piecemeal or holistic fashion. The second is whether regulation should be triggered as the result of a voluntary contract, or whether the state should be directive. 

3.i: Holistic vs. piecemeal regulation 

The first question of how to regulate personal relationships is whether to regulate them in a holistic or a piecemeal fashion. Holistic regulation of relationships would mean the development of a new status, analogous to marriage, which conferred upon people a package of legal rights and responsibilities. Both existing marriage and the institution of civil partnerships in the UK are examples of what I mean by a holistic policy: when entering into these relationships individuals take on a bundle of rights and responsibilities covering multiple areas of life (property ownership, child custody, inheritance, next-of-kinship, immigration). Alternatively, intimate relationships could be regulated in a piecemeal fashion. On this model, the state would regulate different functions or different parts of a relationship separately. On the piecemeal model there would be no assumption that, in any particular case, all the functions coincided in one relationship. Thus there would be separate regulations for property, child custody, immigration and so on. Each of these regulations would stand separately, and individuals could form arrangements with different people for different functions. Thus Anne might own a house jointly with her mother, share child custody with her sexual partner, and want to nominate either her partner, her children, her parents or her siblings as her next-of-kin. 

Theorists arguing for major reforms have suggested both piecemeal and holistic alternatives. Examples of holistic models include civil partnerships, which aim to provide the package of legal effects of traditional marriage without the same symbolic overtones, and Metz’s “Intimate Care Giving Union” or ICGU status. Metz argues that care should be the focus of regulation for reasons of justice, equality and prudence: 

Justice, because care is essential, always already given, and risky. Equality, because intimate caregiving has long been the site and source of significant but remediable social and political inequalities. Prudence, because in our society care is most often and most effectively given and received in intimate caregiving relationships.⁶⁹ 

Although ICGU status focuses on care, it is a holistic model of regulation because it attaches a bundle of rights covering various areas of life to that status. As Metz notes, it would “look a lot like marital status today.”⁷⁰ The difference is that while marriage is focused on monogamous heterosexual coupledom, ICGU status is focused on caregiving within intimate relationships. 

Holistic models such as civil partnerships and ICGU status are certainly improvements on marriage. If well-designed they mitigate the practical and symbolic inequalities of marriage and so may address feminist concerns. However, they do not go far enough to meet liberal critiques based on individual freedom and state neutrality. From the point of view of state neutrality, holistic approaches still involve the state in marking one type of relationship out as the most fundamental. Indeed, as Metz herself notes, “special expressive status” akin to the symbolic significance of marriage might become attached to ICGU status, and the conferral of such status does involve the state in “acting in a way that reflects particular political commitments.”⁷¹ 

From the point of view of individual liberty, holistic approaches assume that all the most important functions of life are met within one core relationship. Even if this is the case for most people, the state should be open to the possibility that some individuals’ arrangements are more wide-ranging. In the case of Anne, imagined above, one status would not capture the complexity of her relationships. Indeed, even her caring relationships might be more complex than would be captured by ICGU status. If Anne is a care-giver to both her dependent children and her elderly mother, and if she and her sexual partner are mutually caring and supportive of each other, between whom should ICGU status apply? 

Piecemeal regulation has many advantages, then. It is more flexible, allowing a variety of ways of life to receive appropriate state attention. It can meet the needs of caring relationships that Metz insists upon,⁷² but does not assume that all caring relationships are attached to other forms of intimacy or that people have only one sort of caring relationship.  And it dispenses entirely with one special status to which special recognition and thus endorsement is attached.  

3.ii: Contract vs. directive 

A second, distinct question concerns whether intimate relationships should be regulated on a contractual or directive basis. The voluntarist, contractual model leaves individuals free to draw up their own arrangements which the state then enforces. So, two individuals about to buy a house together, or to share their income with one partner taking on domestic duties, could draw up any arrangement they liked about the distribution of resources and what would happen if they separated.  

The voluntarist model is compatible with either holistic or piecemeal regulation. Holistic voluntarism would mean that individuals about to enter into a partnership would draw up a contract, unique to themselves, detailing the various arrangements that would govern their life together. Such a model is advocated by Lenore Weitzman.⁷³ This model preserves a special status akin to marriage, but means that no two marriages need be alike (though of course individuals might in practice choose from pre-drafted contracts made available by lawyers). Alternatively, piecemeal voluntarism would see people drawing up a series of contracts. Anne could draw up a contract with her mother to govern their shared property, another with her sexual partner to govern their childcare responsibilities, and another with her brother concerning her wishes if he were to have to act as her next-of-kin. 

One advantage of the contract model is that it means that couples must discuss and negotiate their expectations at the outset, and doing so may help prevent problems later on. Weitzman strongly defends intimate contracts for this reason. She notes further that intimate contracts allow couples to formulate egalitarian agreements, to follow their own wishes (contracts are liberty-promoting), and facilitate diversity.⁷⁴  

However, these apparent benefits must be qualified. In practice people might be likely to choose off-the-shelf contracts, since these would be cheaper than having individual contracts drawn up by lawyers to unique specifications, such that diversity might be less extensive than Weitzman envisages. Moreover, while contracts allow couples to regulate their relationship along egalitarian lines that best fit the desires of each member and facilitate diversity, they also allow couples to formulate contracts that conform to a norm, entrench hierarchy, or are not equally desired by both. The contract model thus has the disadvantage that it is open to injustice, since contracts could be drawn up that do not contain fair terms and individuals might face pressure to choose them. This could be romantic pressure, “If you really loved me you’d choose the Permanent Commitment Contract”, cultural pressure, “A good Christian / Muslim would choose the Male Head of Household Contract”, or straightforwardly abusive pressure, “If you don’t choose the Unequal Property Contract I won’t sign / I’ll insist on the Unequal Childcare Contract”.⁷⁵ The problem of unjust contracts is exacerbated if those contracts concern third parties, most obviously children.⁷⁶ 

A further problem with the contract model is that it is insufficient for the regulation of intimate relationships. Not only does the state face the problem of what to do if couples sign contracts that are manifestly unfair or hierarchical, the state also faces the problem of what to do if people do not draw up a contract to regulate some area of their relationship in which there are high stakes. For example, a couple might buy a house, have children or require a next-of-kin to make decisions without having drawn up a contract to govern those eventualities. In such cases it seems clear that the state must take some position if a dispute or need for action arises, and in the absence of a contract the directive approach will be needed.  

The directive model leaves the state as the regulator, passing laws that determine the rights and duties that obtain between those in a particular relationship. Agreements made between individuals, on this model, are indecisive at least and irrelevant at most: if they conflict with the state directive in certain ways then they are disregarded. Both traditional marriage and civil partnerships are a combination of this directive model with the holistic model: they are forms of relationship with terms fixed by the state and subject to its discretion. However, the directive model can also be used with piecemeal regulation. In that case the state would set out rules that apply if people buy a house together, different rules that apply if they have a child together, and so on. Anne’s varied relationships thus pose no problem for the directive model if it is applied in a piecemeal fashion. 

According to the directive approach, then, the state legislates what is to happen to couples who share property, or children, or who is to be understood as next-of-kin. This approach, if implemented along just lines, has the advantage that everyone is protected on fair and egalitarian terms. If the directives are suitably drafted the directive approach is superior to both traditional marriage and unregulated contracts in terms of egalitarian justice, for neither patriarchal tradition nor power inequalities between individuals prevail. It also has the advantage of simplicity and sufficiency: all relevant areas of intimate life are regulated, third parties such as children are not left vulnerable, and courts will not have to interpret and evaluate diverse contracts.  

Where the directive approach is less successful is in protecting individual liberty. It has the disadvantage that relationships are controlled by the state, perhaps in ways that neither individual is happy with. While piecemeal directivism at least allows individuals to assemble a variety of different relationships as they choose, entering into different functions with different people, holistic directivism simply replaces traditional marriage with an updated alternative. It thus may solve problems of equality but does not avoid the problem of state endorsement and promotion of a  particular sort of relationship. 

I suggest, then, a combination of the contract and directive approaches. There are a number of possibilities. One option is to have some relationships or functions governed by the directive approach (child custody, care and maintenance for example) and others governed by contract (such as joint property ownership). Alternatively, a state could regulate all relevant relationships using directives unless the individuals concerned had drawn up a contract. If a contract did exist it would override the directive. A further safeguard could be provided in the form of directives that constrain which contracts are legally enforceable. For example, if two people buy a house together the default directive position could be that they own it jointly. People would be able to draw up a contract stipulating unequal shares, and that contract would override the default directive. However, there might be a further limitation to the forms of contract that were regarded as valid – for example, a contract in which one partner contributed equally towards the property but had no rights over it in the case of separation might be deemed unenforceable.  

In all cases the state directives would be justified on grounds of securing equality and justice between affected individuals. The state would not be promoting a particular kind of relationship in a way that violated autonomy or state neutrality. In other words, the concerns of both feminists and liberals would be met. 

¹ Earlier versions of this paper were presented at the Annual Meeting of the American Political Science Association in Washington DC, the University of Cambridge Centre for Gender Studies seminar, the Nuffield Political Theory Workshop, the Birkbeck Philosophy Graduate Conference and the University of Warwick Political Theory Seminar. I am grateful to participants of all events for their comments.

² Carole Pateman, The Sexual Contract (Cambridge: Polity Press, 1988) p. 5.

³ See, for example, John Stuart Mill, On Liberty and the Subjection of Women (Ware: Wordsworth, 1996); Simone de Beauvoir The Second Sex (London: Vintage, 1997); Mary Wollstonecraft, A Vindication of the Rights of Woman (London: Constable and Company Ltd., 1996); Betty Friedan, The Feminine Mystique (London: Penguin Books, 1963); Shulamith Firestone, The Dialectic of Sex (London: The Women’s Press, 1979); Carole Pateman, The Sexual Contract (Cambridge: Polity Press, 1988); Susan Moller Okin, Justice, Gender and the Family (New York: Basic Books, 1989).

⁴ See Jane Lewis, The End of Marriage? Individualism and Intimate Relations (Cheltenham: Edward Elgar, 2001).

⁵ The list goes on. For further examples of sexist imagery in weddings, and feminist discussion of whether and how to avoid it, see http://www.indiebride.com

⁶ Virginia Braun, “Thanks to my Mother … A Personal Commentary on Heterosexual Marriage” in Feminism & Psychology Vol. 13 No. 4 (November 2003) p. 421.

⁷ Sarah-Jane Finlay and Victoria Clarke, “’A Marriage of Inconvenience?’ Feminist Perspectives on Marriage” in Feminism & Psychology Vol. 13 No. 4 (November 2003) p. 417-8.

⁸ Merran Toerien and Andrew Williams, “In Knots: Dilemmas of a Feminist Couple Contemplating Marriage” in Feminism & Psychology Vol. 13 No. 1 (November 2003) p. 435.

⁹ For discussion see Anne Kingston, The Meaning of Wife (Piatkus 2004) ch. 5, especially p. 158-61.

¹⁰ Claudia Card, “Against Marriage and Motherhood” in Hypatia Vol. 11 No. 3 (Summer 1996), p. 14 of online version.

¹¹ Janet C. Gornick, “Reconcilable Differences: What it Would Take for Marriage and Feminism to say ‘I do’” in The American Prospect Online (7^th April 2002), http://www.prospect.org

¹² See, for example, Pepper Schwartz, Love between Equals: How Peer Marriage Really Works. (New York, NY: The Free Press, 1994) and Arlie Russell Hochschild and Anne Machung, The Second Shift: Working Parents and the Revolution at Home (London: Piatkus, 1990).

¹³ Celia Kitzinger and Sue Wilkinson adopt this optimistic view in  “The Re-branding of Marriage: Why We Got Married Instead of Registering A Civil Partnership” in Feminism & Psychology Vol. 14 No. 1 (February 2004) p. 135.

¹⁴ Card, “Against Marriage and Motherhood”, p. 12 of online version. See also p. 8, 13.

¹⁵ Okin, Justice, Gender and the Family p. 142.

¹⁶ Anne Kingston, The Meaning of Wife.

¹⁷ See Pierre Bourdieu, Masculine Domination (Cambridge: Polity Press, 2001); Pierre Bourdieu and Lo�c Wacquant, An Invitation to Reflexive Sociology (Cambridge: Polity Press, 1992); and Clare Chambers, Sex, Culture and Justice: The Limits of Choice (Penn State University Press, 2008) chapter 2.

¹⁸ Anna Sandfield and Carol Percy, “Accounting for Single Status: Heterosexism and Ageism in Heterosexual Women’s Talk about Marriage” in Feminism & Psychology Vol. 13 No. 4 (November 2003). See also Jill Reynolds and Margaret Wetherell, “The Discursive Climate of Singleness: The Consequences for Women’s Negotiation of a Single Identity” in Feminism & Psychology Vol. 13 No. 4 (November 2003).

¹⁹ Ellen Fein and Sherrie Schneider, The Rules: Time Tested Secrets for Capturing the Heart of Mr Right (London: Thorlens, 1995) p. 120. For a feminist who is not too chastised to criticise The Rules, see  Petra Boynton, “Abiding by The Rules: Instructing Women in Relationships” in Feminism & Psychology Vol. 13 No. 2 (May 2003).

²⁰ Toerien and Williams, “In Knots” p. 434.

²¹ A particularly influential argument that the history of marriage pervades its present is found in Carol Pateman’s The Sexual Contract. Pateman’s focus on that book is on marriage as a form of contract, and she strongly implies that no reform could render marriage non-patriarchal since the very idea of contracting parties is deeply embedded in insurmountably patriarchal concepts (Pateman, The Sexual Contract p. 184-5).

²² See, for example, Toerien and Williams, “In Knots” p. 434.

²³ Margaret Morganroth Gullette, “The New Case for Marriage” in The American Prospect Online (5^th March 2004), http://www.prospect.org

²⁴ Exemption from inheritance tax is a clear advantage since not only does it provide a financial benefit to those who are married, but it is also a law that can, in effect, be avoided if the surviving spouse has a selfless principled objection, by donating the equivalent of the tax to others.

²⁵ Thomas B. Stoddard, “Why Gay People Should Seek the Right to Marry” in Mark Blasius and Shane Phelan (eds.), We Are Everywhere: A Historical Sourcebook of Gay and Lesbian Politics (London: Routledge, 1997) p. 754.

²⁶ Other special privileges of marriage are more subjective in their effects. Is it a privilege or a burden that, in the UK, a woman’s husband is assumed to be her child’s father on the birth certificate, whereas unmarried men may be so named only with their consent and presence? The answer will depend on the particular circumstances.

²⁷ David Estlund emphasises this point, and argues that pro-marriage campaigns are also coercive, in his “Commentary on Parts I and II” in Estlund and Nussbaum, Sex, Preference, and Family p. 163.

²⁸ Maria Bevacqua, “Feminist Theory and the Question of Lesbian and Gay Marriage” in Feminism & Psychology Vol. 14 No. 1 (February 2004) p. 37.

²⁹ Stoddard, “Why Gay People Should Seek the Right to Marry” p. 756.

³⁰ Stoddard, “Why Gay People Should Seek the Right to Marry” p. 757.

³¹ Paula L. Ettelbrick, “Since When is Marriage a Path to Liberation?” in Mark Blasius and Shane Phelan (eds.), We Are Everywhere: A Historical Sourcebook of Gay and Lesbian Politics (London: Routledge, 1997) p. 758.

³² Paula L. Ettelbrick, “Since When is Marriage a Path to Liberation?” p. 758.

³³ Card, “Against Marriage and Motherhood”.

³⁴ Celia Kitzinger and Sue Wilkinson, “The Re-branding of Marriage: Why We Got Married Instead of Registering a Civil Partnership” in Feminism & Psychology Vol. 14 No. 1 (February 2004) p. 144. See also Tamara Metz, “The Liberal Case for Disestablishing Marriage” p. 205.

³⁵ I am grateful to Fabienne Peter for pressing me on this point.

³⁶ For a (brief) argument that specifically liberal equality requires the abolition of state-recognised marriage see V�ronique Munoz-Dard�, “Is the family to be abolished then?” in Proceedings of the Aristotelian Society Vol. XCIX (1999) p. 53.

³⁷ Martha Nussbaum, Hiding From Humanity: Disgust, Shame and the Law (Princeton, NJ: Princeton UP, 2004) p. 258-9.

³⁸ In Sex and Social Justice Nussbaum condemns the plight of widows who are forbidden to work outside the home even if they starve; the practice of sati where a widow commits suicide on her husband’s funeral pyre; attacks on women concerning their dowry payments; FGM, which is often seen as a necessary condition for marriage and imposed on girls by parents anxious to render them marriageable; and marital rape. (Martha Nussbaum, Sex and Social Justice (Oxford: Oxford University Press, 1999) p. 29; 65; 89; 125.)

³⁹ Nussbaum, Sex and Social Justice p. 295.

⁴⁰ Indeed, Ayelet Shachar argues that state involvement in marriage is a recent phenomenon. She writes: “The state did not seize jurisdiction over marriage until the late eighteenth century, when the vesting of power over family law in secular authorities was seen as a symbol of modern European state-building. … Since we tend to accept the state’s regulation of marriage and the family as something more or less take for granted, we easily forget how much the state’s involvement in governing the creation [and] dissolution [of] marriage is in fact a fairly recent phenomenon.” (Shachar, Multicultural Jurisdictions p. 74.)

⁴¹ My argument on this point has similarities with that of radical feminist Sheila Jeffreys, who argues that marriage must be abolished as a legal category since it has inescapably sexist symbolic meanings. According to Jeffreys, “when lesbians and gay men demand marriage they shore up a foundational practice of male dominance. … I do not think that marriage can be saved and made into a neutral and egalitarian institution that would be open to either heterosexuals or lesbians and gay men.” (Jeffreys, “The Need to Abolish Marriage” in Feminism & Psychology Vol. 14 No. 2 (May 2004) p. 330.) While Jeffreys believes that her position is in profound opposition to liberal feminist arguments, I suggest that in fact it ought to be shared by liberals. Indeed, even if marriage could be reformed so that it lost its patriarchal taint, liberals still should not endorse it.

⁴² Raz endorses marriage, and thus presumably state-recognised, in The Morality of Freedom (OUP, 1986) p. 309.

⁴³ Richard Arneson, “The Meaning of Marriage” in San Diego Law Review Vol. 42 No. 2 (2005).

⁴⁴ See footnote 41.

⁴⁵ See, for example, Charles E. Larmore, Patterns of Moral Complexity p. 42; John Rawls, Political Liberalism p. 191-4. For further discussion of liberal ideas of neutrality see Clare Chambers, “Nation-building, neutrality and ethnocultural justice: Kymlicka’s ‘liberal pluralism’” in Ethnicities Vol. 3 No. 3 (2003).

⁴⁶ For a sustained critique of this feature of marriage, particularly its requirement of monogamy, see Card, “Against Marriage and Motherhood” and Elizabeth F. Emens, “Just Monogamy?” in Mary Lyndon Shanley (ed.), Just Marriage (OUP, 2004).

⁴⁷ William Galston, “The Reinstitutionalization of Marriage: Political Theory and Public Policy” in David Popenoe, Jean Bethke Elshtain and David Blankenhorn (eds.), Promises to Keep: Decline and Renewal of Marriage in America (London: Rowman & Littlefield, 1996) p. 272-3.

⁴⁸ Galston stipulates that such politics must maintain liberty and gender equality but it is unclear how state endorsement of marriage can be compatible with these values. The tension is particularly evident with Galston’s own proposals.

⁴⁹ Galston, “The Reinstitutionalization of Marriage” p. 283.

⁵⁰ Galston, “The Reinstitutionalization of Marriage” p. 287.

⁵¹ Charles Taylor, “Atomism” in Communitarianism and Individualism, edited by Shlomo Avineri and Avner De-Shalit (Oxford: Oxford University Press, 1992).

⁵² John Rawls, Political Liberalism p. 77-8; Justice as Fairness p. 156. For further discussion see Clare Chambers, Sex, Culture and Justice: The Limits of Choice (Penn State Press, 2008) ch. 5.

⁵³ Charles E. Larmore, Patterns of Moral Complexity (CUP, 1987) p. 44.

⁵⁴ Estlund, “Commentary on Parts I and II” p. 161.

⁵⁵ John Rawls, “The Idea of Public Reason Revisited” in his The Law of Peoples (Harvard University Press, 1999) p. 165. I am grateful to Andrew Williams for reminding me of this passage.

⁵⁶ Nancy L. Rosenblum, “Democratic Sex: Reynolds v. U.S., Sexual Relations, and Community” in David M. Estlund and Martha C. Nussbaum (eds.), Sex, Preference, and Family (OUP, 1997) p. 67.

⁵⁷ This argument emerged from discussion at the Nuffield Political Theory Workshop, particularly with Adam Swift.

⁵⁸ This argument was put to be by Andrew Williams.

⁵⁹ Harry Brighouse and Adam Swift, “Parents’ Rights and the Value of the Family” in Ethics Vol. 117 (October 2006).

⁶⁰ Rawls, “The Idea of Public Reason Revisited” p. 160.

⁶¹ Card, “Against Marriage and Motherhood”; Susan Moller Okin, Justice, Gender, and the Family.

⁶² See, for example, Maggie Gallagher, “Re-creating Marriage” in Popenoe et al (eds.) Promises to Keep and William A. Galston, “Causes of Declining Well-Being Among U.S. Children” in Estlund and Nussbaum (eds.), Sex, Preference, and Family. Research with rather nuanced findings is reported in Sara McLanahan, “The Consequences of Single Motherhood” in Estlund and Nussbaum (eds.), Sex, Preference, and Family.

⁶³ Rawls, ““The Idea of Public Reason Revisited” p. 162.

⁶⁴ Metz, “The Liberal Case for Disestablishing Marriage” p. 196.

⁶⁵ One problematic aspect of Metz’s proposals is her argument that the state should impose no limit whatever on private marriages, a position I discuss in a piece of work-in-progress.

⁶⁶ Kitzinger and Wilkinson, “The Re-branding of Marriage” p.142.

⁶⁷ Useful information on British law may be found at the websites for the Citizens’ Advice Bureau and the organisation One Plus One. See http://www.adviceguide.org.uk/index/family_parent/family/cohabitation_and_marriage_legal_differences.htm and http://www.oneplusone.org.uk/marriedornot  The situation in the USA is still more complex since marriage laws vary from state to state. However, as with the UK it is difficult for a couple to find out what the legal implications of their marrying are: sites such as http://usmarriagelaws.com give information about state conditions for marriage but not the legal conditions that obtain within marriage.

⁶⁸ Sue Wise and Liz Stanley, “Beyond Marriage: ‘The Less Said about Love and Life-Long Continuance Together the Better’” in Feminism & Psychology Vol. 14 No. 2 (May 2004) p. 340.

⁶⁹ Metz, “The Liberal Case for Disestablishing Marriage” p. 208-9.

⁷⁰ Metz, “The Liberal Case for Disestablishing Marriage” p. 210.

⁷¹ Metz, “The Liberal Case for Disestablishing Marriage” p. 210; 212.

⁷² The importance of caregiving in the context of marriage is also emphasised by Martha Fineman in “Why Marriage?” in Virginia Journal of Social Policy and the Law Vol. 9 No. 1 (Fall 2001).

⁷³ Lenore Weitzman, The Marriage Contract: Spouses, Lovers and the Law (New York, NY: Free Press, 1981).

⁷⁴ Weitzman, The Marriage Contract

⁷⁵ These examples assume that the couple are choosing off-the-shelf contracts, but they could apply just as easily if the couples drew up their own unique arrangements.

⁷⁶ The worry that the contract approach welcomes injustice is also found in Pateman’s work, though her claim that intimate contracts become “universal prostitution” need not apply to every such contract, particularly on the piecemeal approach. See Pateman, The Sexual Contract p. 184