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American conservatives pride themselves on moral clarity. And that clarity is nowhere greater than on the topic of marriage and family. The essentials of marriage are, they say, well-defined: it unites a man and a woman; it provides the foundation for a family that may include biological or adopted children; it assigns different roles to men and women; and it is a union for life, indissoluble except for the most grievous offenses. These essentials are, according to conservatives, not a product of the vagaries of social convention or contingent cultural choices but are instead given by nature, scripture, or tradition. Moreover, preserving them is intrinsically good for individuals and has great public benefits: marriage is the foundation of society, and a strong foundation will protect against society’s ills, from crime to poverty.
For the past decade conservatives have worked energetically to implement this vision—more precisely, to restore it in the face of the demographic, economic, and cultural changes of the past 40 years. They have defended two-parent marriage by requiring (in the 1996 Welfare Reform Act) that single parents who receive welfare must work outside the home for wages, while allowing one parent in a two-parent family that receives welfare to stay home to take care of children. They supported President George W. Bush’s “marriage initiative,” which allocates federal funds to programs aimed at persuading unwed parents to marry, by rewarding, for example, a single mother who marries her child’s father. And they have opposed efforts to legalize same-sex marriage in individual states and praised the federal Defense of Marriage Act (DOMA), which exempts states from recognizing same-sex marriages entered into in other states. The Catholic bishops of Massachusetts, for example, have recently been pressing the state legislature to pass a constitutional amendment against same-sex marriage: such marriages will, they say, have “devastating consequences.” And Ken Connor, president of the conservative Family Research Council, has promised to make a “big, big issue in 2004” out of the idea that “marriage is a sacred covenant, limited to a man and a woman.”
Critics argue that these efforts to shore up the traditional family represent an assault on 30 years of sensible reforms of marriage and divorce law that have helped to free women and men from stultifying or abusive relationships; that they threaten to reimpose oppressive gender roles; that they stigmatize and disadvantage unwed mothers and their children; and that they condemn gay men and lesbians to second-class citizenship. In short, the conservative program is characterized as the enemy of equality and a threat to personal liberty.
But these critics have been less clear about their own constructive moral and political vision. One response to the conservative project has been to concentrate on efforts to legalize gay and lesbian marriage by reforming state marriage laws. This strategy is attractive and shows some promise in a few states, but even if it succeeds it leaves other elements of the conservative project untouched. It does nothing to address the concerns of those who regard marriage itself as oppressive, to remedy the poverty that deters some people from marrying, or to support single parents and their children.
A second, more comprehensive proposal—put forward by, among others, Lenore Weitzman in The Marriage Contract and Martha Fineman in The Neutered Mother—is to abolish state-defined marriage altogether and replace it with individual contracts drawn up by each couple wishing to marry. A regime of individual contract would allow spouses to decide for themselves how to arrange their lives, and it would enable people of the same sex, or more than two persons, to marry. On this view, which I will call contractualism, the best way to treat citizens as free and equal adults is to stop treating marriage as a special public status, and permit the parties themselves to define its terms and conditions.
Contractualism has considerable force, but it suffers from two deficiencies. First, the contract model treats persons as rational and bounded individuals while paying insufficient attention to the mutual need and dependence that arise in marriage and other close relationships. It thus rests on an incomplete view of the person and fails to take account of the ideal of marriage as a relationship that transcends the individual lives of the partners. That ideal has deep cultural resonance, and contractualism unnecessarily concedes this ground to conservatives. Second, while emphasizing the need for liberty in the choice of partners, contractualism fails to give sufficient weight to positive state action to enhance equality and equal opportunity along with liberty and freedom of association. It thus is founded on too narrow a conception of justice.
A third line of response, then, would preserve the idea that a married couple is something more than its separate members, and that spouses can make claims in the name of their relationship that are not identical to claims that each could make as individuals. But it would also open up marriage so that both women and men, regardless of race, class, or sexual orientation, can, as equals, assume the responsibilities and reap the rewards of family life. I will call this the equal status view. Its defining aspiration is to preserve the idea that marriage is a special bond and public status while rejecting—as incompatible with liberty and equality—important elements of the traditional view of the purpose and proper ordering of marriage.
Can marriage be reformed to serve as a public status that promotes equality and liberty? Is the happy combination of justice and committed intimacy and love suggested by the equal status view a real possibility?
From Fixed Status to No-Fault
The traditional view of marriage in the United States has roots in Christian religious views and church law. The English common law, which provided the basis for the marriage laws of most U.S. states, reflected the tenets of marriage promulgated by the Anglican (and before it the Catholic) Church. When jurisdiction over marriage and children was transferred from church to common-law courts, for the most part public law simply incorporated aspects of church doctrine.1
The Traditional View
In the Church’s view marriage was first and foremost a covenant, like God’s covenant with the Jews and Christ’s covenant with the church (the community of the faithful). Christian marriage was thus an unbreakable bond (for Catholics, a sacrament). Marriage was to be lifelong and marital faithfulness was to include monogamy.
Marriage was also regarded as a hierarchical relationship in which husband and wife played complementary roles. The man was given authority as head of household. Blackstone, the 18th-century legal authority, explained that since Genesis declared husband and wife to be “one flesh” in the eyes of God, they were to be “one person” in the eyes of the law, and that person was represented by the husband. This suspension of the wife’s legal personality was known as the doctrine of spousal unity or “coverture.” Under coverture a married woman could not sue or be sued unless her husband was party to the suit, could not sign contracts unless her husband joined her, and could not make a valid will unless he consented to its provisions. As a correlate to these powers and his role as head of the family, a husband was obligated to support his wife and children. And since he would be held responsible for her actions, a husband had a right to correct his wife physically and to determine how and where their children would be raised. As late as 1945 a New Jersey court wrote:
The plaintiff [husband] is the master of his household. He is the managing head, with control and power to preserve the family relation, to protect its members and to guide their conduct. He has the obligation and responsibility of supporting, maintaining and protecting the family and the correlative right to exclude intruders and unwanted visitors from the home despite the whims of the wife.2
Marriage was to be a structure in which the roles of the spouses were distinct and complementary: the wage earner and the housewife, the protector and the protected, the independent and the dependent.
The husband was expected to govern his household with neither interference nor help from the state. By and large, police turned a blind eye to violence between spouses. In most jurisdictions wives could not prosecute their husbands for marital rape because the law assumed that by marrying, spouses gave blanket consent to sexual relations (they were, after all, “one body” and “one person” in law). And judges enforced obligations of support only if spouses separated, not in an ongoing marriage.
When people married, then, they consented to enter a relationship whose terms were set by the state. Of course, consent was necessary to enter the married state, but the agreement to marry brought with it rights and duties that were not set by the partners but were treated as intrinsic to the status of being married.
The First Wave of Reform
The unequal provisions of marriage law became the object of reform efforts in the mid-19th century. Reformers were critical, for example, of the fact that many states granted divorce only for a wife’s adultery and not a husband’s. Moreover, adultery was in many states the only grounds for divorce, and some men and women began to insist that other wrongs, particularly physical cruelty and domestic violence, were significant offenses against the marriage that justified dissolving the marital bond. To forbid divorce in such instances, they said, was to make the home a “prison” for unhappy and wronged spouses, depriving them of essential personal liberty.
Feminist reformers also challenged coverture by invoking equality. They organized campaigns in a series of states to pass laws which would allow wives to hold property, sue and be sued, and enter contracts in their own names. By the end of the 19th century, many states had passed married women’s property statutes, freeing married women from many of the legal effects of coverture.
While this first wave of marriage-law reform increased both the freedom to leave unsatisfactory marriages and equality between husbands and wives, dissatisfaction with marriage law remained. The grounds for divorce remained restrictive: thus, several states granted divorce only for adultery. And law still treated married men and women differently: for example, many states imposed alimony only on husbands, a stipulation that assumed, and perhaps helped to perpetuate, women’s exclusion from the paid labor force. The age at which females could marry without their parents’ consent was often younger than that for males, suggesting that boys needed to stay in school or learn a trade before marrying and that girls did not. Custody laws varied widely, but often contained a preference for mother’s custody, again assuming that the mother was and would in the future be the better caregiver.
The Second Wave of Reform
In the mid-20th century a variety of factors (which I can only briefly allude to here) converged to spark a second wave of marriage-law reform. Demographic changes after 1900 were dramatic. Life expectancy for women was 51 years in 1900 and 74 in 1960; increased life expectancy meant that most parents had years together in an “empty nest” after their children had left home; at mid-century women began childbearing at a later age and bore fewer children than in 1900. In addition, economic changes in the decades following World War II led women, including married women and women with children, into the paid labor force in unprecedented numbers. This drew women out of the home for part of the day and gave them greater economic independence. The introduction of the birth control pill in the 1960s gave women more control over pregnancy, and the ability to plan the timing of their children encouraged women to work outside the home and to think of “careers” rather than temporary jobs.
These and related changes provoked a dramatic transformation of divorce law between 1965 and 1974. Herbert Jacob has called the adoption of no-fault divorce the “silent revolution”: revolution because it involved a series of “radical changes in legal expectations about family life;” silent because the changes resulted from “routine” policy processes that never became the focus of media and public attention.
The idea that the partners themselves could decide to end their marriage was revolutionary; it affected thinking about the nature of marriage and its permanence.
In the mid-1960s, lawyers in California began the push for no-fault divorce in large part to get rid of the subterfuge in many divorce proceedings that took place when couples tailored their stories to make them fit the legal requirements for divorce. Although California courts were lenient in granting divorce, in order to obtain a divorce a husband or wife had to prove that the other had committed an offense such as adultery, cruelty, willful neglect, habitual intemperance, or desertion. In most cases the wife was the plaintiff, and she usually charged her husband with “cruelty,” which could range from disparaging remarks to physical violence. The charges were often fabricated and the testimony rehearsed, the couple having decided to end the marriage. The dishonesty, even perjury, that pervaded some divorce proceedings prompted activists to press the legislature to adopt a no-fault divorce law, which enabled a spouse to obtain a divorce without proving wrongdoing by the other.
No-fault divorce emerged prior to modern feminism, and its proponents did not aim to promote greater equality for women or greater choice among alternative family forms. Nor did they intend or anticipate the demographic watershed in U.S. families that resulted from no-fault divorce. In the wake of no-fault legislation the divorce rate rose dramatically, from 2.2 per thousand population in 1960 to 4.8 per thousand population in 1975. And by the last quarter of the 20th century only one-fourth of U.S. households fit the supposed “norm” of a wage-earning husband and homemaker wife living with children.
Alongside its dramatic demographic consequences, no-fault divorce prompted a sea change in conventional understandings of marriage. The idea that marriage partners themselves could simply decide to end their marriage was revolutionary; it affected thinking about the very nature of marriage and its permanence. The observation by 19th-century legal historian Henry Maine that the movement of the law in the 19th century was “a movement from status to contract” was finally coming to be true of marriage.
Although no-fault divorce preceded the resurgence of feminism, the idea that individuals should be able to extricate themselves from unhappy marriages resonated with feminist ideas about women’s liberty and equality—and later with the movement by gays and lesbians to end legal discrimination against homosexuals and the ban on same-sex marriage. The conjunction of no-fault divorce, renewed attention to equality, and gay liberation, as Nancy Cott observed, sparked proposals to “reinvent marriage” by “extend[ing] its founding principle of consent between the couple to all the terms of the relationship, allowing the contractual side of the hybrid institution to bloom.” If personal choice suffices to end a marriage, why, the contractualist asks, shouldn’t personal choice define the terms of marriage right from the outset?
A Third Wave of Reform?
Marriage and Liberty
Liberty, the first foundational value of a liberal polity, is central to the question of who is allowed to marry. When the law stipulates who may and may not marry, it restricts the freedom of those excluded from marriage. Some exclusions are relatively uncontroversial, such as prohibiting marriage below a certain age, with a close relative, or while in prison (although each of these has been attacked as an unjustifiable limitation on individual freedom). Other restrictions are more contentious. Law precluded slaves from marrying. And only in 1967, in the case of Loving v. Virginia, did the Supreme Court decide that anti-miscegenation laws were unconstitutional.
Advocates of contract marriage favor legal recognition of same-sex marriage, a position consistent with their dedication to individual liberty. When marriage is a public status, they say, law inevitably draws a line separating those who may marry and those who may not. The repeated refusal by states to formalize unions of same-sex couples represents, according to the contractualists, a failure to take pluralism, privacy, and personal choice seriously. States, of course, may enforce agreements between marriage partners, just as states enforce other contracts; and they may prohibit marriages below a certain age, as they impose age restrictions on other contracts. But states may not legitimately decide who may marry whom or how spouses should order the personal and material aspects of their relationship.
I might be tempted to become a contractarian if contract marriage were the only way to achieve legal recognition for same-sex marriage, but—as current political initiatives at the state level underscore—it is not. Marriage for same-sex couples can be achieved by either legislation or court decisions that change the content of marriage law; it does not require us to replace a regime of marriage law with a regime of private contract. The fact that many municipalities have adopted “domestic partnerships” and that Vermont has recognized “civil unions” may be a harbinger of legislative victories to come. And courts may someday decide that there is a constitutionally protected right to marry that encompasses same-sex couples. The ground was laid in Loving v. Virginia when the Supreme Court declared “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” If marriage is a fundamental liberty protected by the 14th Amendment’s due-process clause, then any restriction on marriage must be tailored to advance a compelling state interest. And while some religious views may condemn homosexual unions, no state interest rises to a sufficiently compelling level to justify prohibiting same-sex marriage.
The debate here is not for and against same-sex marriage, but between contractualists who would provide legal recognition of same-sex marriage by abolishing marriage law and those who would instead alter marriage law itself. Is there any reason to prefer the latter? I think there is.
The individualism and emphasis on rational bargaining that are at the heart of contracts rest on misleading models of the person and of the marriage relationship. Marriage partners are not only autonomous decision-makers; they are fundamentally social beings who will inevitably experience need, change, and dependency in the course of their lives. The prenuptial agreements that set forth how economic assets each partner brings to the marriage are to be held and distributed recognize the individuality of the partners, although they strike some people as unromantic. But the question of who should have a claim to property obtained by either spouse during the course of the marriage is more problematic, because when people marry they become part of an entity that is not always reducible to its individual components. Some states hold all such property to be held in common (community property), reflecting the notion that marriage creates a single entity and a shared fate (and hence shared resources) for marriage partners. Other states give title to the person who earned or otherwise obtained the property, but allow title to be overridden in the interests of a fair distribution at the time of divorce, reflecting a belief that marriage creates claims growing out of a shared life. The relational entity is also reflected in common language when spouses say they are doing something “for the sake of the marriage,” such as choosing a place to live that would be neither partner’s first choice if single. It is reflected in legal practice when one spouse is prohibited from testifying against the other in certain proceedings because the law wants to express the notion that the marriage relationship itself should be protected.
A vision of the proper relationship between spouses is central to the conservative project; a compelling alternative to it will require its own core vision.
Married life is not only deeply relational, but it is also unpredictable. Not all of what spouses may properly expect of one another can be stipulated in advance. Contracts are useful devices for facilitating communication about each partner’s expectations and aspirations. But contracts create obligations by volition and agreement; they do not account well for the obligations that may arise from unforeseen circumstances, including illness or disability of an aging parent, a spouse, or a child.
Finally, contract suggests that each marriage is a particular agreement between individuals, not a relationship in which the public has a legitimate interest. But the public does have an interest in the terms of marriage. It has, as the equal status view argues, an interest in promoting equality of husband and wife, both as spouses and as citizens, and in securing what Martha Nussbaum calls the social bases of liberty and self-respect for all family members.3 And it has an interest in sustaining marital and other family relationships in the face of poverty or illness.
One way to think about the differences in these two approaches is to consider whether polygamy should be legalized in the United States. As Boston Globe columnist Jeff Jacoby asks, “If the state has no right to deny a marriage license to would-be spouses of the same sex, on what reasonable grounds could it deny a marriage to would-be spouses . . . who happen to number three or four instead of two?” Would a continuation of the ban on plural marriage simply shift the boundary between who’s in and who’s out?
For contractualists, the case for a right to plural marriage is straightforward: it expresses individuals’ rights to form affective and sexual relationships free from state interference. Martha Fineman said in 2001 that “if no form of sexual affiliation is state preferred, subsidized, and protected, none could or should be prohibited. Same-sex partners and others forming a variety of other sexual arrangements would simply be viewed as equivalent forms of privately preferred sexual connection.” The law would have to be gender-neutral, allowing marriages with plural husbands as well as plural wives. But as long as protections against coercion, fraud, and other abuses that invalidate any contract were enforced, people could choose multiple marriage partners.
Proponents of the equal status conception fall on both sides of the question. Laurence Tribe, supporting legal recognition of polygamy, asks rhetorically in American Constitutional Law whether the goal of preserving monogamous marriage is “sufficiently compelling, and the refusal to exempt Mormons sufficiently crucial to the goal’s attainment, to warrant the resulting burden on religious conscience.” Peggy Cooper Davis condemns in Neglected Stories the “cultural myopia” that led the Supreme Court to outlaw Mormon polygamy in Reynolds v. United States in 1879, and argues that a principled objection to polygamy in a multicultural society would require more than “a political majority’s wish to define and freeze the moral character of the polity.” But the flaws in the Reynolds decision do not mean polygamy should be legalized. Many people are convinced that polygamy is profoundly patriarchal. The “larger cultural context of female subordination” is too deeply rooted and strong even for gender-neutral principles that allow both women and men to have more than one spouse to overcome its effects. In this view, plural marriage reinforces female subordination and is unacceptable on grounds of equality.
The answer to the question, “If we legalize same-sex marriage, won’t we have to legalize plural marriage?” is not, then, an obvious “yes.” Equality as well as liberty is implicated in marriage law and policy. In assuming the equal agency of the parties to the contract, the contract model leaves aside the question of whether choices themselves may lead to subordination. In order to decide whether plural marriage should be legalized, one must address the question of whether polygamy can be reformed along egalitarian lines. Equality must be a central attribute of any marital regime based on considerations of justice.
Marriage and Equality
Most people today endorse “equality” as a general cultural value, but there is deep disagreement about what kind of spousal equality we want and how best to achieve it. Advocates of gay and lesbian marriage who are concerned principally with restrictive rules about who may marry whom typically do not engage this issue. But a vision of the proper relationship between spouses is central to the conservative project; a compelling alternative to it will require its own core vision.
Under 19th-century marriage law the fact that a wife’s legal personality was subsumed in that of her husband, that she was not able to vote, and that she was excluded from many occupations was regarded by many not as inequality but as complementary difference. Today some traditionalists contend that although men and women, husbands and wives should enjoy equal rights both in marriage and as citizens, they have different roles to play in family and civil society. For example, Chad Brand explains the Southern Baptist Convention’s position that “while the Bible teaches equality, it does not affirm egalitarianism or interchangeability in all things.” He contends that “male-female equality and male headship may seem paradoxical, but they are both taught in Scripture, much like a thread of two strands.”4 In a secular vein William Kristol asserts that women and men must be taught “to grasp the following three points: the necessity of marriage, the importance of good morals, and the necessity of inequality within marriage.”5 Because the nation needs strong and even aggressive men to flourish, the price women pay for marriage and morals is submission to the husband as leader within the family.
Angered by the endorsement of male dominance in these views, advocates of contract marriage such as Martha Fineman argue that “abolishing marriage as a legal category is a step necessary for gender equality.” Marriage by contract replaces the gender stereotyping and protectionism of traditional marriage law with the recognition of the individuality and equal agency of the partners. Marriage partners should be treated as rational actors capable of knowing and articulating their interests. Contract reflects autonomy and self-direction in general, and marriage partners are individuals who, according to the American Law Institute’s Principles of the Law of Family Dissolution, need to “accommodate their particular needs and circumstances by contractually altering or confirming the legal rights and obligations that would otherwise arise.”6
Supporters of contract marriage are right to reject male dominance and state protectionism. But as Carole Pateman argued in The Sexual Contract, while contract may be the enemy of status it alone is not adequate to defeat the legacy of patriarchy. The contract model is an insufficient foundation for spousal equality. Ensuring conditions of fair contracts is not in itself enough to establish this kind of equality in marriage and in civic life. Instead, marriage law and public policy must work to ensure that neither partner is precluded from participating in social and political life or rendered unable to provide care to family members. Vigorous state action is needed to promote spousal equality, and one important justification for such action is provided by vision of marriage as a relationship between equals that enriches both their individual and joint lives. While marriage and divorce laws themselves are now usually drafted in gender-neutral terms, cultural norms and employment practices perpetuate a division of labor at work and at home that results in a system of gender and racial hierarchy. So even if reforms are animated by concerns about joining domestic equality with special respect for marital bonds, those reforms will need to focus on the labor market as much as the domestic arena.
The notion that marriage creates an entity that is not reducible to individual spouses captures a truth about human relationships.
Most jobs, whether professional or nonprofessional, still assume the model of what Joan Williams in Unbending Gender calls the “ideal worker,” a full-time, paid employee married to an at-home caregiver. Employment practices in the United States developed around the sexual division of labor. Jobs were designated “male” or “female,” and men’s jobs tended to pay higher wages than women’s. Different pay scales applied to men and women doing the same work (men being presumed to be the family provider, women to be working for “pin money”). Health, unemployment, and other benefits were tied to full-time work. The workday and workweek were based on the assumption that someone else was cleaning, cooking, and caring for family members. The ideal worker model had enormous influence on both the economic resources and caregiving skills of men and women.
Although discrimination against women in the workplace has diminished, the ideal worker model continues to affect both decisions to marry and the dynamics within marriage. As Susan Okin argues in Justice, Gender, and the Family, the difference in wage earning capacity between men and women gives men more resources with which to deal with the world, and this in turn affects dynamics within the family. The disparity still remains despite a narrowing wage differential between men and women of all races: while women in 1979 earned 62.5 cents for every dollar men earned, in 1998 they earned 76 cents. Because uninterrupted time in the work force increases one’s potential earning power, wives who stay out of the paid labor force for a number of years fall behind. This diminishes their decision-making authority within marriage and their options to leave an unsatisfactory union.
The arrangement of the workplace also affects decisions about caregiving, for children as well as elderly or sick relatives. Because benefits such as health insurance may depend on full-time work, and because the pay scale is often higher for full-time work, one partner may have to work full-time. Because many jobs are sex-segregated and wages for men’s jobs are higher than those for women’s, it will make economic sense in some families for the husband to work full-time and his wife to do the caregiving. The division between “workers” and “caregivers” not only harms women in the workplace but makes it less likely that men will develop interpersonal and caregiving skills.
In the Supreme Court’s recent decision upholding the right of a man denied family leave to take care of his sick wife to sue the State of Nevada under the Family and Medical Leave Act, Justice Rehnquist noted the effects on both home and workplace of the assumption that women caregivers free men to be ideal workers.
Because employers continued to regard the family as the women’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. [Nevada Department of Human Resources v. Hibbs, No. 01-1368, decided May 27, 2003.]
Congress acted reasonably, Justice Rehnquist ruled, in mandating a family leave that would be help to break these stereotypes about male and female social roles.The tight linkage between work and family is influenced not only by gender but also by race and class.
Racial prejudice meant that historically fewer Black than white families had an “ideal worker” and stay-at-home caregiver. The economic need created by racial discrimination meant that the labor force participation of married Black women was always higher than that of white women. Black men were relegated disproportionately to agricultural and other low-paid labor, Black women to domestic and other service jobs. Since the last decade of the 20th century the high unemployment rate among Black males has had an additional impact on family life, as marriage rates have fallen: William Julius Wilson, Orlando Patterson, and others have argued that some people won’t marry when they have no reasonable hope of being able to support a family.7
As to social class, the increasing number of never-married mothers living in poverty led authors of the Welfare Reform Act of 1996 (the Personal Responsibility and Work Opportunity Act) to insert a provision requiring mothers who receive welfare to identify the biological fathers of their children. The state could then go after the father for child support, and if he did not provide enough money to lift mother and child out of poverty, the mother was required to work outside the home. Sponsors hoped that if the woman identified the father the state might induce them to marry. Even if they did not marry, the man and not the government would support the child. Many women eligible for welfare, however, did not want to identify the fathers of their children, some because they preferred to parent with someone else or alone, some because they feared abuse from the father, and some because they knew the father had no money (and often no job).
Marriage is not an effective anti-poverty program, nor is it appropriate to use it as such. Unemployment rates are high because the number of jobs that pay a living wage are far below the number of unemployed seeking work. The wages available to many men who can find work are inadequate to support a family, and adding a wife’s wages is of little help unless affordable childcare is available. Addressing women’s poverty by attaching them to men who can support them reproduces inequality and vulnerability within marriage. Inducing women to marry men may expose them and their children to domestic violence while failing to provide them with either the personal or community resources to extricate themselves from intolerable living conditions.
The understanding of marriage as a contract does not by itself generate the reforms necessary to alter family and workplace structures, welfare, and social services in ways necessary to give both men and women the opportunity to engage in both public and caregiving work. The next phase of the struggle to achieve sexual and spousal equality must entail a public commitment to liberty and equality and tackle not only marriage law but economic circumstances as well.
A number of reforms would move society toward greater justice in marriage. One such reform would be to ensure that people can find jobs that pay a living wage. There must be equal pay for equal work, whether performed by full- or part-time employees. Benefits must be extended to all workers, not just those who meet the ideal worker model (and basic health benefits should not be tied to employment status). Work must also be restructured in such a way that it accommodates caregiving, through a shorter workweek and more flexible scheduling, for example. If caregivers are not to be marginalized, quality, affordable childcare must be part of any comprehensive family policy, as must the kind of child allowance common in European countries. Paid parental leave for both men and women would create an incentive for men to participate in child care, particularly if a father could not transfer his leave time to someone else but had to use it or forego the benefit. In the event of divorce the wages of both a primary wage earner and a primary caregiver should be treated as joint property, reflecting the commonality of marriage, particularly if there are children or other dependents.
These measures certainly do not exhaust the possibilities. They make the point that in order to meet the principle of spousal equality men and women alike must be able to perform the tasks necessary to both the public and the private realm, to shoulder the responsibilities of workers outside the home as well as family caregivers.
Public Status or Individual Contract?
The contractual image has much to be said for it. It captures what Milton Regan, Jr., in Alone Together calls the “external stance” toward marriage, which focuses on the ways in which marriage serves the interests of distinct individuals. Contract represents well the role that choice and negotiation play in any marriage. Drafting a marriage contract is a useful exercise for a couple because it encourages potential partners to asses their individual needs and sources of personal satisfaction, make their expectations explicit, and identify areas of both agreement and conflict. Legal notions of spousal unity and the sentimentalization of a woman’s role as “the angel in the house” have often served to undercut married women’s agency and autonomy. The external stance provides an important antidote.
Contract does less well in capturing what Regan calls the “internal stance” toward marriage, which regards it from within the relationship and focuses on shared experience rather than lives lived in parallel association. The internal stance reflects the fact that when people marry they become part of an entity that is not reducible to or identical with its individual components. Historically this concept of a marital entity distinct from either spouse was oppressive to women. The doctrine that husband and wife were “one” and formed a new “person” in the eyes of the law deprived married women of their independent right to hold property and enter into contracts in their own name until the latter half of the 19th century. Prior to the advent of no-fault divorce in the late 1960s a court had to find that one of the spouses had committed an offense “against the marriage” before granting a divorce. “Incompatibility” was not a valid ground for divorce even when both partners wanted to end their marriage. Even in our own day police may ignore complaints of domestic violence because they do not want to “intrude” on the private realm of the married couple.
Despite this dismal history, the notion that marriage creates an entity that is not reducible to the individual spouses captures a truth about significant human relationships and could be used to reshape social and economic institutions in desirable ways. This understanding of the marriage relationship as something distinct from the individuals could be used in the future not to subordinate women but to press for marriage partners’ rights to social and economic supports that sustain family relationships and enable spouses to provide care to one another. Such a right to provide care to and receive care from a spouse is not the same as an individual’s right to health care or social services. Nor does public protection and support for associational and affective ties need to be limited to marriage partners and parents and children. Rather, recognition of the inevitability of dependency and the importance of caregiving should lead people to ask what other relationships deserve public support.
Marriage suggests, as contract does not, the role of committed relationships in shaping the self. The promise to love someone else, in a marriage or in a friendship or in a community, binds a person to act in ways that will fulfill that obligation. Contract also does not express the notion of unconditional commitment, both to the other person and to the relationship. Contract in lieu of marriage rests upon a notion of quid pro quo, in which each party offers something and agrees on the terms of any exchange as a rational bargainer. But the marriage commitment is unpredictable and open-ended, and the obligations it gives rise to cannot be fully stated in advance. What love attuned to the well-being of another may require is by its nature unpredictable.
With so much of our public discourse reducing individuals primarily to consumers in the market, it is especially important to insist on the social and relational sides of our lives. The contractual model for marriage that presents marriage, as Hendrik Hartog says in Man and Wife in America, as “nothing more than a private choice and as a collection of private practices” is insufficient to the tasks of reconfiguring marriage. Marriage entails respect for individuals and for their relationships. It is a particularly striking instance of a practice founded on both individuality and “a shared purpose that transcends the self” (Regan). If such a commitment is a valuable aspiration and one that our political community wants to facilitate, then we need to examine and remove impediments to such relationships. Those impediments are legion, especially among the poor. Removing them thus confronts us with a formidable agenda—reforms of the workplace, of welfare, and of caregiving. But with notions of the public good and collective responsibility under constant assault, withdrawing the state from the pursuit of justice in marriage and family moves in the wrong direction. We need to insist instead that marriage and family law can and must be made to conform to the principles of justice that affirm the equality and equal liberty of all citizens.
Mary Lyndon Shanley is Margaret Stiles Halleck Professor of Political Science at Vassar College. She is author of Making Babies, Making Families: What Matters Most in an Age of Reproductive Technologies, Surrogacy, Adoption, and Same-Sex and Unwed Parents’ Rights; and Feminism, Marriage, and the Law in Victorian England 1850—1895.
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