How the concept of marriage ends: not with a bang, but with a whimper

Is it unjust for the government to limit marriages to just two people? Two new books suggest that the question itself is mistaken, for it assumes that the relevant debate is over the meaning of “marriage”. Why should marriage be the only (or the default) way for people to signal long-term commitment and love for each other? Why should the government privilege romantic and sexual relationships over other relationships? Indeed, what’s wrong with being single? Marriage has been in decline for decades; it is now in danger of becoming incoherent.

The books that show the way “forward” are Justin L. Clardy’s Why It’s Ok to Not be Monogamous and John G. Culhane’s More than Marriage: Forming Families After Marriage Equality. Though different in many respects, both books arrive at the conclusion that marriage is in serious need of revision.

The reason? Marriage just doesn’t work for everyone – as Culhane puts it on page 1 of his book, “marriage is too bossy.” It has too many rules and expectations. It’s too hard to get out of. And perhaps worst of all, it is exclusionary – it identifies some relationships (marriages) as worthy of state recognition and respect and then confers dignity and material benefits on them. Every other committed and loving relationship is left out in the cold.

This last line of argumentation is familiar from debates over same-sex marriage. Why shouldn’t gay couples who love each other get the same recognition and benefits as opposite-sex couples? But if the sex of the partners in a marriage does not matter, it’s hard to see (as prescient observers pointed out at the time) why other expectations or limitations on marriage should matter either – the number of people in a marriage, say, or whether they expect the marriage to be permanent or temporary, or whether they are interested in having sex. What matters in the new dispensation of relationships is affirming the existing desires, needs, and identities of autonomous adults.

Once this idea takes root, it’s hard to know where to stop. Culhane, a law professor at Delaware Law School, takes the idea to its legal conclusion by proposing an expanded understanding of a legal instrument known as a “designated beneficiary agreement.” Colorado pioneered this approach, which allows two people to set the terms of their relationship in an a-la-carte fashion.

Connected

The legal paperwork (of which Culhane gives a sample) lists a number of ways that people can be legally connected – joint ownership of property, the right to be designated as a beneficiary for various purposes, hospital visitation rights, and so forth – and then allows the parties to initial, or not, for each one. No more bundling of rights and responsibilities, as in old-fashioned marriage – partners (or as Clardy calls them, “relata”) get to choose the terms of their relationship from scratch.

Culhane claims that this approach is necessary to recognise the reality of existing relationships that do not fit neatly into the traditional two-person model of marriage. Polyamorous relationships could benefit from such a law, but so could siblings who want to share their lives and resources in a (platonic) life-long relationship, or a parent and adult child who have reasons to be legally connected. In fact, the designated beneficiary agreement is “designed with maximum flexibility to suit individual circumstances,” which means it can mean almost anything to anybody.

Culhane says that he does not want to do away with marriage in law, for it is too entrenched in law and culture to be removed. He does, however, want to “knock[] marriage down to size-at least enough for those on the outside not to look on with such longing, envy, or anger.”

Here, we encounter a concern with marriage that forms a bridge between Culhane and Clardy. It’s not just the fact that the state recognizes “marriage” and confers legal and financial benefits on those who marry, but also that the state also confers (or reinforces) the status of marriage. Being married is good, valuable, aspirational – but this recognition of marriage has the side effect of implying that there is something imperfect or not quite complete about those who do not live up to the marital ideal. They are “single” or perhaps even “cheaters,” terms which already presuppose an environment shaped by the expectation of marriage and monogamy.

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Clardy, an assistant professor of philosophy at Santa Clara University, uses the term “non/monogamy” to refer to a “system that distributes powers and privilege to some intimate relationships, but not to others.” This system includes the belief (labeled “amatonormativity”) “that a central, dyadic romantic relationship that leads to marriage is the ideal romantic relationship,” and that people should have just one sexual/romantic partner at a time (“mononormativitiy” – keeping up?). These normativities (among others) “perniciously discriminate against, marginalize, and oppress” those who do not conform to their dictates.

By this point, it should be clear why Clardy believes marriage should not survive in its current form. The mere form of marriage – the fact that it constitutes a set of expectations and understandings that people are expected to conform to – is seen as pernicious because it elevates some relationships as valuable and good, while suggesting that there is something wrong or undesirable about others.

It is the normativity of marriage itself, the belief that relationships should or ought to take a certain form, that is the enemy, and the only way to slay this dragon is to get rid of all expectations and standards that suggest one kind of relationship is better than another.

Away with it

Which, of course, is an argument for getting rid of marriage. Now, neither Clardy nor Culhane take this radical step in their books, but the abolition of marriage doesn’t seem far away. Clardy follows Elizabeth Brake’s conception of “minimal marriage”, which allows individuals to “have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.”

Like Culhane’s designated beneficiary agreement, minimal marriage can mean almost anything to anybody – the only limitations being “age, competence, and species.” Clardy does add, however, “I remain open to being convinced of more radical proposals which posit that marriage abolition is required from a liberal state.”

For his part, Culhane wants to retain marriage because “marriage isn’t going anywhere” but also because marriage can have great personal meaning to some people. But retaining marriage seems to be in tension with the idea that the differential esteem accorded to marital relationships is unjust.

Culhane tells the story of two sisters who have lived their entire lives together and want some kind of legal recognition for their relationship – not marriage, but something that grants them benefits and status. The fact that their relationship is not seen as “worthy of celebration or emulation” is itself an injustice that the law should seek to rectify by “knocking marriage down to size.” Again, the more seriously one takes this argument, the more unjust and implausible marriage appears... which raises the question of why the law should recognise marriage at all.

Now, a robust argument for recognising marriage as a special legal and social category is beyond the scope of an article like this, but compelling arguments are available to those who are interested. (Clardy and Culhane give only cursory attention to these arguments – they know they have won.) And perhaps there is a reservoir of public sentiment and common sense that will keep marriage alive for some time to come.

But let’s not deceive ourselves about the future of marriage. Barring some major change in public sentiment, the anti-normative currents of contemporary thought will erode the foundations of marriage until it is seen by many people as not only unjust, but incoherent. Some may cheer and others may lament the end of marriage, but it’s hard to see how marriage can long endure without a stronger foundation.


Daniel Frost is the director of public scholarship in the School of Family Life at Brigham Young University. He also serves as editor-in-chief of Public Square Magazine.

Image: Pexels


 

Showing 4 reactions

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  • Rob McKilliam
    commented 2023-11-12 11:26:24 +1100
    Danny Frost: Thanks very much for that. I have added the book to my wish list – looks good.

    Yes you are correct – grandparents particularly do a lot of unrecognised work in looking after their grandchildren. This is one reason government should actively promote a stable family environment.
  • Danny Frost
    commented 2023-11-12 02:56:36 +1100
    Rob, I’m mostly sympathetic to what you say here – much of the reason why the government has a stake in marriage is to make sure that children are taken care of. But critics will point out that people besides parents also take care of children, and the government does not provide them with the same recognition and benefits. So what is different about marriage? Girgis, George, and Anderson do a good job articulating the reasons why marriage is a distinct human good in What Is Marriage? https://www.amazon.com/What-Marriage-Man-Woman-Defense/dp/164177147X/ref=sr_1_1?crid=3O5T1WV9NNHGZ&keywords=what+is+marriage&qid=1699717872&sprefix=what+is+marriag%2Caps%2C119&sr=8-1
  • Rob McKilliam
    commented 2023-11-11 13:47:42 +1100
    This is all much too complicated! Let’s keep it simple.

    The ONLY reason to recognise marriage is that men and women like to have sex. The potential child needs nurturing for a significant number of years. If the parents don’t do it then society must.

    It makes sense for society to offer incentives for the parents to do the nurturing work.

    I think it is a simple as that.
  • Daniel Frost
    published this page in The Latest 2023-11-10 10:17:35 +1100