Scholars turn their minds to marriage

A collection of in-depth essays on a beleaguered institution turns out to be a fascinating read.
Margaret Somerville | Dec 2 2010 | comment  

I resisted reviewing this book, because, to be utterly frank, I thought I would find it boring, even though I am a lawyer. But being bored was not the only problem I foresaw; I also anticipated that I’d have to be less than enthusiastic about a text edited by two scholars whom I know and respect. So, very reluctantly, I agreed to write a “book note”, which is how I came to read it. But, as the saying goes, “You can’t judge a book by its cover”—or, more precisely in this case, its title. To my complete surprise, I found The Jurisprudence of Marriage and Other Intimate Relationships fascinating and eagerly read it from the first to the last page and learnt a great deal in doing so. I would strongly recommend it to anyone with a professional or personal interest in the contemporary family, its history and legal governance, the forces that are currently influencing it, and what we should and should not do in molding its future.

The book’s focus is the role of the state in the recognition of intimate relationships, especially through marriage. Since the second half of the twentieth century, with the widespread legalization of divorce, changing sexual mores, and openness about homosexuality, this has been and remains a controversial topic in most Western democracies. In dealing with it, we need to ask many questions that include: Should the state be involved at all in marriage? What can the disciplines of history, philosophy, sociology, and psychology, to name just some that are relevant, tell us about marriage? What is the role of marriage in relation to children? When the “best interests” of children and the preferences of adults as to their intimate relationships conflict, which should prevail? Should common law relationships attract legal rights and responsibilities? If so, should they be the same ones that marriage implements? Should same-sex marriage be recognized in law? If so, why should two interdependent relatives, such as sisters, not receive the same privileges, protections, and benefits? Should three or more people be allowed to marry? What is the role of institutional religion in marriage? And so on.

In answering such questions those authors whose chapters in this book endorse a firm conclusion on the subject strongly defend traditional marriage; that is, they believe that marriage should remain restricted to the union of one man and one woman. But the authors, who deal with the issue of legally recognized civil unions, accept that they, too, could be supported.

The authors come from a broad sweep of countries—the United States, Canada, Great Britain, Israel, and Ireland—and while a majority are legal scholars, they bring to bear a wide range of other scholarship—philosophy, history, religious studies, and political science. This adds immensely to the richness of the knowledge, analysis, and insight that the book offers. It probably made it difficult, however, to classify the contributions under themes, although the editors have done so.

Like the book itself, the themes they have chosen have somewhat daunting titles: Part I, “Fundamentals: Basic Goods; Basic Concerns about Marital Relationships”; Part II, “Fundamentals: Implications for the Law”; and Part III, “Social, Political and Doctrinal Attributes and Implications.” While they do not detract from the book, in my view they do not enhance it. Rather, a strength of the book is the diversity of its content and the ability of each chapter to stand alone, which also means the chapters need not be read sequentially. But while that’s true, collectively, the various chapters also make a synergistic contribution. We can understand this if we imagine placing the issue of marriage in the center of a circle and the authors standing along the circumference, each holding a different-colored scholarly light, which they shine on marriage. While each light reveals knowledge from the perspective of its disciplinary focus, what we get from the combination of these lights—that is, from reading the book as a whole—is the white light of trans-disciplinary insight.

Human dignity, veracity, respect

I will now very briefly mention some of the arguments, analyses, and insights to be found in the book, in order to give a sense of what it offers. In Human Dignity: Its Implications for Marriage, the Family, and Society, Professor William Binchy of Trinity College Dublin deals with “the implications for marriage, the family, and society of respect for human dignity … the core value of international human rights instruments” (p. 3). As he points out, human dignity is an “elusive and contested” concept (p. 4). Despite that, indeed possibly because of it, in the last few years it has been increasingly researched and debated in academic circles. He argues that an irrevocable commitment to another person, as in marriage, is the “supreme expression of human freedom” (p. 6) and because that is its nature, respect for human dignity requires respect for that commitment.

Professor Charles Donahue, Jr., of Harvard Law School, provides a rich history of marriage, especially its religious and legal history, in a chapter titled, What Difference Does It Make if Marriage is a Sacrament? The law of marriage in Western societies from the mid-twelfth to the mid-sixteenth centuries was exclusively canon law and it was only in the nineteenth century that an exclusively secular law of marriage emerged (p. 17).

Professor Lynn Wardle of Brigham Young University, one of the editors, reviews, in Gender Neutrality and the Jurisprudence of Marriage, the highly controversial topic of same-sex marriage. He strongly defends the proposition that the dual-gender requirement is necessary in the legal institution of marriage. He documents the fact that many jurisdictions have explicitly rejected same-sex marriage and looks to French and African feminism which, in contrast to feminism in North America, insists “that the law respect, protect, and celebrate gender differences” (p. 46). Wardle argues that opposite-sex and same-sex relationships are fundamentally different and therefore, to treat them as the same as occurs with legalizing same-sex marriage violates the requirements of equal treatment, rather than implementing it as same-sex marriage advocates claim (p. 61).

The richness, breadth, and depth of Helen Alvaré’s scholarship in jurisprudence of the family is patently obvious in her chapter “You Can’t Get There From Here”: A Reply to Proposals to Disestablish Marriage as the Path to Care. A professor at George Mason University School of Law, Alvaré looks to what is required for humans to flourish in the context of heterosexual, intimate relationships and addresses the arguments for and against the deinstitutionalization of marriage, which she opposes. Her analysis looks to anthropology and theology and she makes the point that, in our societies, the institution of marriage is the prime example of “human understanding of the possibility of loving all those who are not kin” (1) (p. 81), and seeing that another human being, to whom we are not related by blood, “could be as important as we perceive our own life to be” (p. 92). Alvaré emphasizes that the welfare of children, in general, is an integral aspect of maintaining marriage as an institution and of restricting it to being between a man and a woman.

It’s impossible to summarize the contribution of another editor, Professor Scott FitzGibbon of Boston College Law School, in “Just Like Little Dogs”: The Law Should Speak with Veracity and Respect, and do any justice to the scope of the learning on which it is based. FitzGibbon’s central point is that mendacity in the law harms all of us, whether as individuals, families, communities, or societies. The example he gives is the Ontario law that ascribes the term spouse to people who are not married to each other (p. 137). Often such strategies are adopted to push through some controversial change in the law by confusing those who can vote on whether the change should be adopted. The area where this is most apparent at present is in relation to legalizing euthanasia.

FitzGibbon’s criticisms bring to mind the words of Humpty Dumpty, in Lewis Carroll’s Through the Looking Glass, when Humpty Dumpty says “When I use a word … it means just what I choose it to mean—neither more nor less.” FitzGibbon points out that “mendacity and disrespect often seem to go together” (p. 116), which caused me to ponder the connection between respect for others and respect for human dignity. Certainly, we do not respect those to whom we lie or their human dignity, a reality that politicians and public officials need to have more clearly in mind.

The discussion of the connection between mendacity and respect also brought to mind relatively recent changes in the concept of trust. We have moved from “blind trust” (trust me because I know what’s best for you) to “earned trust” (trust me because I will show that you can trust me). The latter is much more respectful of the trustor. FitzGibbon says we now have “respect lite,” that is, respect that is not based on merit (p. 116). In short, we have moved from “earned respect” to “blind respect,” that is, in the opposite direction from that we have taken in relation to trust.

The state’s interest in marriage

Professor Richard Stith of Valparaiso School of Law, writing On the Legal Validation of Sexual Relationships, looks at the reasons why the state has an interest in heterosexual marriage and not in other intimate relationships, including sexual ones, and, in my opinion, rightly argues it’s because of the potential for procreation the former entails. He insightfully points out that marriage removes “any remnant of legal or moral disapprobation” of sexual intercourse (p. 149). One reason same-sex marriage advocates have sought its legalization is to achieve just that outcome in relation to “gay sex.” Stith also points out that fidelity has a different meaning in same-sex committed relationships as compared with opposite-sex ones: the same-sex partners are committed to their relationship, but not necessarily to monogamous sexual relations.

But I disagree with Stith’s proposal “to tailor marriage more closely to fertility” and to exclude opposite-sex couples too old to have children from marriage, so “same-sex people would no longer feel alone in not having their sexual relationships validated by the state” (p. 163). He overlooks the fact that all married couples who live long enough become infertile (would he suggest their marriages be annulled?), that infertile opposite-sex couples do not breach the procreative symbolism of marriage as same-sex couples do, and that grandparents have an on-going role to play in natural families.

The issue of whether the rights, responsibilities, and privileges that marriage entails should be extended to include cohabiting couples is addressed by Professor Shahar Lifshitz of the faculty of law at Bar-Ilan University in Israel. In Spousal Rights and Spousal Duties: The Liberal Case for Privileging Marriage, he argues they should not be extended because the law has a special interest in fostering formally committed relationships, which have a higher level of commitment, and that it’s in the public interest for the law to do so. Moreover, to impose obligations on people who cohabit is a breach of their rights to autonomy and freedom. He recognizes, however, that the law also has a valid interest in ensuring justice and protecting weak and vulnerable people, especially children; consequently, he argues for a “partial application of marriage laws” to achieve these goals of protection (p. 187).

Professor Robert John Araujo, S.J., of Loyola University, Chicago, analyzes the case-law on homosexuality and same-sex marriage in Same-Sex Marriage—From Privacy to Equality: The Failure of the “Equality Justifications for Same-Sex Marriage. He criticizes the judgments he examines from a Natural Law perspective, which leads him to “the inexorable conclusion that the argument based on equality cannot sustain the institution of same-sex marriage” (p. 196). While I agree with his conclusion, arguments based on legal positivism—a philosophy of law that he adamantly rejects— need to be considered. At the heart of the conflict between Natural Law and legal positivism, in relation to marriage, is disagreement as to whether marriage is a natural institution that is recognized and protected by the law, in particular in order to protect the children who can result from the union of a man and a woman, or it is a social construct, open to whatever legal definition we might choose to give it, that is, created through the law. Like Araujo, I believe it is the former, but same-sex marriage advocates believe it is the latter, and we need to give adequate consideration to their claims.

In a thought-provoking chapter, Susan Shell, professor and chair of the Department of Political Science at Boston College, writes on The Future of the Liberal Family. She starts by noting the decline in birth rates across the Western world and describes the changes in the nature of paternal and political authority from the emergence of early liberal thought to the present. She notes the shift from children’s obligations to their parents to children’s rights (p. 242) and explains that liberal societies depend on the family to perform, in private, tasks such as inculcating liberal norms in children in order to “secure both the liberal freedoms that we treasure and the powerful but limited government needed to support them” (p. 252).

Shell recognizes that “individuals today enjoy a moral latitude that is interwoven with our bedrock conceptions of liberal justice” and, therefore, “any simple return to earlier models [of the family]” is dubious (p. 252). She says we need to see marriage “for what, civically speaking, it is: an institution necessary to the long term flourishing and perpetuation of a liberal society” (p. 253). And she describes the characteristics of a special role for “liberal fatherhood” in children’s lives: “They must perform the difficult task of guiding without ruling; they must teach their children to respect authority when it is reasonably and rightly exercised and to oppose it when it is abused. They must impose discipline on their children without cowing them or inhibiting their initiative.” (p. 253).

The sidelining of nature

Professor Daniel Cere’s exegesis on The Problem of “Nature” in Family Law is another chapter the richness of which can only be appreciated by reading it. A member of the faculty of religious studies at McGill University, Cere outlines how the law has been used to transform the human body from natural to legal. “The claims and constraints of ‘nature’ are pushed aside; bodies are now the offspring of law. … [Legal] discourse gives us the normative categories through which the body becomes meaningful and visible” (p. 261). With this we see the rise of the idea that the natural world is constituted by the legal; that is, that law, not nature, is primary (p. 261). We can observe this premise in overt operation in the Civil Marriage Act 2005, which legalized same-sex marriage in Canada. It provided that where the term “natural parent” appeared in certain legislation, it was to be replaced by “legal parent.”

Cere addresses the issue, already mentioned, at the heart of the same-sex marriage debate: namely, whether marriage is a cultural and legal institution built around a core natural reality—the capacity of one man and one woman to have a child—or whether it is simply a cultural construction that can be whatever we decide to define it to be. He explores the arguments on both sides and documents how “challenge to arguments concerning the natural dimensions of opposite-sex bonding proceeds less by critical counter-argument than by ‘nature ignoring’ lines of argument” (p. 272).

Cere concludes: “The appeal to ‘nature’ can be restrictive, reactionary, and even repressive. However, the appeal to ‘nature’ can also prove to be a cautionary stance against human hubris and, at times, a liberating stance against oppressive human ‘constructions.’” (p. 289). I suggest it functions in the latter way when used to justify restricting marriage to the union of one man and one woman, because in doing so it allows us, as societies, to uphold children’s rights and “best interests” with regard to their biological origins and family structure. Although same-sex marriage would benefit same-sex couples, it would be destructive of these rights of children, in general, and harmful to their “best interests.” The strongest arguments for same-sex marriage are at the level of individuals and their rights to autonomy and self-determination in implementing their preferences regarding what constitutes a family. The strongest arguments against it are at institutional and societal levels in relation to the norms that define a family and what is best, in this regard, for children.

The Baroness (Ruth) Deech, a member of the British House of Lords who was formerly chair of the Human Fertilization and Embryology Authority of the United Kingdom, discusses Cousin Marriage from the perspectives of genetic risks, eugenics, religion, culture, and law. She sets out the arguments for and against it and recognizes that it’s not just a matter for individuals or of personal preference, but also a question of what’s needed in this regard for a healthy society. She points out that “[e]ugenics has become a word that sums up the greatest of evils ... [and includes] being forbidden to marry certain others or reproduce because there is a likelihood of less-than-ideal children” (pp. 291–292), which makes it “very difficult to discuss cousin marriage.” She explains the difficult situation of immigrant women who do not speak English, who are planning to marry a first cousin and rely on the man as a translator when seeking genetic counseling—“he may not tell her awkward facts about genetics” (p. 295). Even if he does, she might not understand genetic risk and she and her future husband may reject premarital genetic testing, even though babies with genetic disabilities have already been born into the family from first cousin marriage.

Whether legal prohibition of cousin marriage is defensible is an open question. It’s a question of what limitations on liberty are justifiable. This depends, to some extent, on how high the risks are in cousin marriage of having children with genetic disabilities and what alternatives to banning it are available to reduce these risks. Baroness Deech proposes that reproductive technologies could be used to avoid some disabilities, but she acknowledges that prenatal screening and abortion are not options for doing so for people who find them morally objectionable or contrary to their religious beliefs.

In the final chapter, Sisterly Love: The Importance of Explicitly Assumed Commitment in the Legal Recognition of Personal Relationships, Barrister Oran Doyle, a lecturer at Trinity College Dublin, presents an interesting argument. He addresses the issue that if same-sex relationships between homosexuals are recognized by law, what is the justification for not recognizing personal but non-sexual relationships, such as those between sisters (p. 308)? He examines a United Kingdom case, the Burden case, in which two elderly sisters who had lived together all their lives argued “that they were in a similar or analogous position to cohabiting married and civil partnership couples for the purposes of inheritance tax” (p. 312) and that not to extend to them the same benefits enjoyed by those other couples was discrimination. The courts up to and including the Grand Chamber of the European Court of Human Rights rejected their claim.

Doyle looks at what distinguishes traditional marriage and same-sex intimate relationships from relationships between siblings, such as the Burdens. He concludes that “It’s not the having sex; it’s the explicit assumption of commitment (p. 322, emphasis added). The State underwrites that “publicly stated ... lifelong, exclusive commitment” in legally recognizing it, which “transforms that commitment into a different species from all other commitments which we explicitly undertake or unintentionally assume” (p. 323). In other words, “legally underwritten commitment is a qualitatively different kind of commitment” (p. 324). Doyle proposes that the law’s interest in underwriting these commitments “presumably derives from the concern of a State, even a liberal State, to support its citizens in assuming the primary responsibility to care for each other”. (p. 325).

Doyle recognizes that sisters are legally forbidden to marry and not allowed to enter civil partnerships; that is, they can’t make such a commitment. He suggests that the Burden sisters should have argued that the prohibition on entering a civil partnership was discriminatory, but admits that their seeking to do so does not seem appropriate. I suggest that is because they are already bonded by the one and only unbreakable bond, genetic relationship, which, at least traditionally, carries commitment obligations and privileges, some of which are declared in the law and apply whether or not a person publicly commits to them.

To conclude: As I said at the beginning this is, indeed, a fascinating book, which has the added merit of raising many other important and pertinent questions that need further thought and research. It deserves a wide, large, and thoughtful readership.

Margaret Somerville is the Samuel Gale Professor of Law, Professor in the Faculty of Medicine, and Founding Director of the Centre for Medicine, Ethics, and Law at McGill University



Copyright © Margaret Somerville . Published by You may download and print extracts from this article for your own personal and non-commercial use only. Contact us if you wish to discuss republication.

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