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.