Feminists have long criticized the institution of marriage. 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. The white wedding is replete with sexist imagery: the father ‘giving away’ the bride; the white dress symbolizing the bride’s virginity (and emphasizing 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.

Despite decades of feminist criticism the institution resolutely endures—though not without change. The most significant change has been in the introduction of same-sex marriages and civil unions in countries such as the UK, the Netherlands, Belgium, the Nordic countries, Ireland, Spain, France, Canada, and the USA. In the USA in particular, same-sex marriage has recently been a fiercely contested and central part of political debate, with many states alternately allowing and forbidding it as the issue passed between the legislature, the judiciary, and the electorate, until the issue was settled at the federal level with a Supreme Court ruling.¹

If marriage is to exist as a state-recognized institution then it must, as a requirement of equality, be available to same-sex couples. There is a great deal to celebrate in recent moves to widen marriage, and it is hard not to be touched (p.12) by the scenes of same-sex couples rejoicing as they are finally allowed to marry.² But even these welcome reforms do not go far enough.

Feminists have been the main critics of the institution of marriage.³ Feminists attack marriage from several different angles, which can leave the feminist position somewhat conflicted on whether reforms such as same-sex marriage render the institution just. As I argue in this chapter, the best way to meet feminist and egalitarian concerns is to support the abolition of state-recognized marriage.

(p.13) Consider the following:

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.⁴

In this quote, and in feminist argument more generally, we can identify two distinct critiques of marriage. Both are common and yet in tension. The first states that traditional marriage is bad because it oppresses women. The implication of this critique is that being married makes women worse off. The second critique is that traditional marriage is bad because it privileges heterosexuality. The implication is that being married makes people, both men and women, better off: it provides benefits that are unjustly denied to lesbians and gays. But these critiques seem contradictory. If marriage oppresses at least some of its participants, why would lesbians and gays want to participate in it? On the other hand, if marriage ought to be extended to lesbians and gays 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.

This 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.’⁵

1.1 Marriage as Oppressive to Women

Consider first the argument that marriage oppresses women, through a brief overview of the history of feminist criticism of the institution. Marriage has often been a trap for women, a state of imprisonment and sometimes brutality that they must endure, escape, or eschew. That is to say, marriage has played a significant role in maintaining the wider regime of gender inequality, since it has been used to consolidate legal, economic, cultural, and symbolic oppression by confining women to a private sphere in which they are seriously disadvantaged. Those significant women in history whom we know about are often victims or refusers of marriage. Consider, for example, Saint Radegund, one of the three (p.14) patron saints of Jesus College, Cambridge. Radegund was born in the first century as a German princess, but was captured by the Frankish King Chlothar I as a war prize when she was 11 or 12. Chlothar forced her to marry him when she became 18. The experience was not pleasant, to put it mildly: ‘Chlothar was rough, brutal, unfaithful, and often drunk’,⁶ and he ordered the murder of her only surviving relative, her brother. Radegund fled the marriage and sought the protection of the Church, for religious life was one of the few activities that allowed women to live with neither marriage nor censure.

Or consider Queen Elizabeth I whose mother, Anne Boleyn, was executed by serial wife-killer King Henry VIII. At first Elizabeth was excluded from rule as her father had his marriage with her mother annulled, rendering her illegitimate. She came to the throne in 1558 on the death of her half-sister, Queen Mary I. Elizabeth’s reign was dominated by discussions of her marriage, and her refusal ever to marry earned her the nickname ‘The Virgin Queen’ and a cult following.

Early feminists criticized marriage with the full force of condemnation reserved for the most grievous injustice. For John Stuart Mill in 1869 marriage was ‘the primitive state of slavery lasting on’,⁷ a condition secured by wives’ legal subordination to their husbands in every respect. In England at the time that Mill was writing, the system of coverture was in place, according to which married women were subordinate and subsumed to their husbands in law. So wives legally ceded all their property, as well as custody and control of their children, to their husbands, were under a legal duty to obey their husbands, were unable to vote or divorce, and could legally be raped by their husbands. Mill described women’s legal duty to submit to marital sex as ‘the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations’.⁸

Some aspects of English coverture were reformed soon after Mill published The Subjection of Women. In 1870 the Married Woman’s Property Act allowed women to keep property acquired after marriage, and a further Act in 1882 gave them rights over the property they owned prior to marriage. But English women had to wait until 1891 to be given the legal right not to be imprisoned by their husbands, and until 1991 (that’s not a misprint) to be given the legal right not to be raped in marriage. Divorce laws were unequal until 1923.⁹

(p.15) Emma Goldman, who was born in Russia but emigrated to the USA, agreed with Mill that marriage subjected women to men. In 1910 she wrote:

Marriage is primarily an economic arrangement, an insurance pact. It differs from the ordinary life insurance agreement only in that it is more binding, more exacting. Its returns are insignificantly small compared with the investments. In taking out an insurance policy one pays for it in dollars and cents, always at liberty to discontinue payments. If, however, woman’s premium is a husband, she pays for it with her name, her privacy, her self-respect, her very life, ‘until death doth part’. Moreover, the marriage insurance condemns her to life-long dependency, to parasitism, to complete uselessness, individual as well as social.¹⁰

Simone de Beauvoir argued in 1949 that marriage remained deeply unequal. On her analysis, marriage is required of women for two reasons: first, they must provide children and marriage provides the socially acceptable context for childbearing, and second, ‘woman’s function is also to satisfy a male’s sexual needs and to take care of his household’.¹¹ Marriage imposes both benefits and burdens on men and women, ‘but there is no symmetry in the situations of the two sexes; for girls marriage is the only means of integration in the community, and if they remain unwanted, they are, socially viewed, so much wastage’.¹² For women, de Beauvoir notes, marriage was the only way to experience sex and motherhood without punishing social disapproval. ‘For all these reasons a great many adolescent girls—in the New World as in the Old—when asked about their plans for the future, reply as formerly: “I want to get married.” But no young man considers marriage his fundamental project.’¹³ Nonetheless, the reality of marriage was horrific for many women: ‘the girls concerned had been too carefully brought up, and since they had no sexual education, the sudden discovery of eroticism was too much for them.…Today many young women are better informed; but their willingness remains formal, abstract; and their defloration is still in the nature of a rape.’¹⁴

By the 1960s women’s situation had changed. During World War II women in western countries had experienced unprecedented equal opportunities at work, with jobs previously reserved for men now having to be done by women. But the end of the war saw men’s return, bringing social pressure for women to return to the home so that men could have ‘their’ jobs back. In The Feminine Mystique in (p.16) 1963 Betty Friedan wrote about ‘the problem that has no name:…the strange stirring, a sense of dissatisfaction, a yearning that women suffered in the middle of the twentieth century in the United States’.¹⁵ The cause of this problem, Friedan argued, was the ‘mystique of feminine fulfilment’¹⁶ which dictated that women should dream only of becoming housewives. This dream left no room for personal development, for career success, for female personhood:

The new mystique makes the housewife-mothers, who never had a chance to be anything else, the model for all women; it presupposes that history has reached a final and glorious end in the here and now, as far as women are concerned. Beneath the sophisticated trappings, it simply makes certain concrete, finite, domestic aspects of feminine existence—as it was lived by women whose lives were confined, by necessity, to cooking, cleaning, washing, bearing children—into a religion, a pattern by which all women must now live or deny their femininity.¹⁷

For Friedan, the solution was not to abandon marriage but for women to integrate marriage and motherhood with a career and, most fundamentally, for each woman to ‘think of herself as a human being first’.¹⁸

Changing norms of sexual behaviour for women in the 1960s and 1970s may have gone some way towards weakening the grip of marriage. But marriage remained an institution subject to feminist critique. Second wave feminists continued to see marriage as a source of women’s inequality. Sheila Cronan, radical feminist and founding member of Redstockings, decried the deceits of the marriage vows. As she put it in 1970, ‘The marriage contract is the only important legal contract in which the terms are not listed.’¹⁹ On the one hand marriage vows commit the parties to do things in which the courts take no interest, such as love each other. On the other hand, marriage vows fail to mention obligations which were legally enforced, such as the wife’s duty to submit to sex with her husband. As already noted, the criminal act of rape could not occur within marriage in England and Wales until 1991, in the House of Lords case of R v R; the UK is by no means an outlier in waiting until the last gasps of the twentieth century to give women the legal right to refuse sex with their husbands.

Cronan’s critique of marriage was not confined to marital rape. She argued, as Mill had one hundred years earlier, that married life is akin to slavery since ‘being a wife is a full-time job for which one is not entitled to receive pay. Does this not constitute slavery?’²⁰ True, marriage is consented to, but this fact only makes its (p.17) enslavement ‘more cruel and inhumane’.²¹ Women’s consent to marriage is borne not of their autonomy but of social construction:

Marriage has existed for so many thousands of years—the female role has been internalized in so many successive generations. If people are forced into line long enough, they will begin to believe in their own inferiority and to accept as natural the role created for them by their oppressor. Furthermore, society has been structured so that there is no real alternative to marriage for women. Employment discrimination, social stigma, fear of attack, sexual exploitation are only a few of the factors that make it nearly impossible for women to live as single people.…Also, marriage is so effectively described in such glowing terms that young girls rush into it excitedly, only to discover too late what the real terms of the marriage contract are.²²

For socialist feminist Juliet Mitchell, writing in 1971, marriage formed part of the generally oppressive, socially-constructed model of a family. As she puts it:

[T]oday women are confined within the family which is a segmentary, monolithic unit, largely separated off from production and hence from social human activity. The reason why this confinement is made possible is the demand for women to fulfil these three roles: they must provide sexual satisfaction for their partners and give birth to children and rear them. But the family does more than occupy woman: it produces her.²³

Part of the problem, for Mitchell, is that state-recognized marriage ‘is utterly simple and rigid’: it admits only one ideal-type of relationship, despite the fact that ‘inter-sexual and inter-generational relationships are infinitely various’.²⁴

Other radical feminist critics of marriage in this period include Kate Millett, for whom ‘Patriarchy’s chief institution is the family.’²⁵ Shulamith Firestone goes one step further, declaring in 1979 that ‘love, perhaps even more than childbearing, is the pivot of women’s oppression today’.²⁶ Firestone’s critique echoes aspects of Friedan’s critique of housewifery:

(Male) Culture was built on the love of women, and at their expense. Women provided the substance of those male masterpieces; and for millennia they have done the work, and suffered the costs, of one-way emotional relationships the benefits of which went to men and to the work of men.²⁷

Artist Sally Swain’s excellent book The Great Housewives of Art deftly and humorously illustrates this point, adapting famous paintings to show the activities of hidden women. So Mrs Degas vacuums the floor while en pointe in full (p.18) ballerina’s outfit, Mrs Monet’s attempts to clean the pond are evident only by a net surreptitiously probing the waterlilies, Mrs Klimt sews a patchwork quilt behind the head of her husband, who nuzzles her neck oblivious to her labour, and Mrs Pollock simply can’t seem to find anything anymore.²⁸

From the 1980s, perhaps inspired by the growth of neoliberalism in Margaret Thatcher’s Britain and Ronald Reagan’s USA, feminist critiques of marriage had taken a new turn. Feminists such as Martha Fineman, Marjorie Shultz, Elizabeth Kingdom, and Lenore Weitzman argued that marriage could be improved for women by being made more properly contractual.²⁹ The problem with marriage, as these writers saw it, was that it was a contract whose terms were set by the state, and in the most unequal fashion. Equality could be achieved either by allowing people to supplement marriage with contract, or by replacing marriage with contract. Thus Fineman argued for ‘the abolition of marriage as a legal category and, with it, the demise of the entire set of special rules attached to it’,³⁰ to be replaced by contracts. Contract thinking was not universal amongst feminists of this period, though. One landmark critic of both marriage and contracts was Carole Pateman, in her 1988 book The Sexual Contract. I devote Chapter 4 to critical analysis of relationship contracts.

Susan Moller Okin also criticized marriage in this period without turning to contracts. In 1989 she developed a sustained attack on what she called ‘vulnerability by marriage’. She argued that ‘marriage has earlier and far greater impact on the lives and life choices of women than on those of men, with girls less likely to aspire to prestigious occupations or feel able to contemplate being happily independent’,³¹ and marshalled a variety of evidence to show that marriage left women emotionally and practically vulnerable. Okin argued for a thorough overhaul of marriage law and practice, including proposals for obligatory egalitarian division of income between breadwinners and housewives during marriage and after divorce.³²

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 (p.19) feminist women and would-be egalitarian couples to achieve.³³ Nonetheless, proposals such as Okin’s suggest that marriage can in principle be egalitarian, even though this would require radical social and legal change.³⁴

Other late twentieth-century feminists were more sceptical. Claudia Card published ‘Against Marriage and Motherhood’ in 1996. On her analysis, the very idea of marriage as a state-awarded licence giving claims over another person’s property and person is profoundly problematic, for it exposes individuals to each other and creates legal barriers to separation. In doing so, marriage inevitably leaves its participants (especially women) vulnerable to abuse. As Card 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.’³⁵

There is no denying that marriage oppressed women when it was the legal instrument of gender inequality. If wives cannot own property, be the legal guardians of their children, resist attack or rape or imprisonment from their husbands, or be entitled to equal rights at school and work, then marriage is a straightforward instrument of women’s oppression. But liberal democracies in the twenty-first century have generally abolished these explicit inequalities of marriage, so what of the institution now? Does the feminist critique retain force?

The feminist critique can be divided 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.

The first feminist critique of marriage has always been that it has practical effects on women that make them worse off. The end of legal inequality in marriage has not meant the end of actual inequality. Practical, empirical harms to women resulting from marriage include the contingent facts that marriage tends to reinforce the gendered division of labour, which itself means that women earn less and are less independent than men; that it reinforces 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 (p.20) marital concepts of entitlement and ownership.³⁶ Elizabeth Brake assesses the data from the USA and argues that ‘marriage continues to perpetuate elements of women’s oppression, understood as the diminishment of their life opportunities through the interaction of systematic legal, social, and economic forces’, in particular ‘spousal violence and economic dependence derived from gendered spousal roles’.³⁷ In the UK, sociologists Sara Arber and Jay Ginn analyse data relating to 32,000 people and conclude ‘A major stumbling block to women’s equality both in the labour market and the domestic sphere is the influence of the normative ideology of gender roles in marriage.’³⁸ They point to a mutually-reinforcing relationship between the fact of material gender inequality (the wage gap) and the marital ideology of husband-as-breadwinner: each apparently justifies and exacerbates the other. ‘Failure to contest this normative structure,’ they write, ‘is a major factor in the perpetuation of women’s disadvantaged position in British society.’³⁹

One issue is whether these practical oppressions are the result of marriage, or cohabitation, or heterosexual relationships, or relationships in general. There are complex connections between gendered oppression, heteronormativity, and marriage, and it is beyond the scope of this book to provide a complete analysis.⁴⁰ But the status quo, in which marriage is recognized by the state and understood by state and society as the default mode for adult life, means that we cannot draw a neat dividing line between what happens in marriages and what happens elsewhere, in heterosexual or same-sex relationships, in cohabiting or casual relationships, in monogamous or polygamous relationships. Marriage is the norm, and the ideal: the situation that the state assumes, defines, regulates, and recommends. As we shall see shortly, the same-sex marriage movement is understood by many to be a demand for assimilation and normalization.

Nonetheless, there are some important differences between marriage and non-marriage in terms of practical effects. One example is housework. Various studies show that marriage increases the gender inequality of housework. Sanjiv Gupta analyses data from the USA and finds that both marriage and cohabitation (p.21) significantly increase women’s hours of housework and decrease men’s.⁴¹ He argues that these results ‘constitute strong evidence for a causal relationship between marital status and housework time’.⁴² Scott South and Glenna Spitze compare six different kinds of households in the USA: never married and living with parents, never married and living independently, cohabiting, married, divorced, and widowed. They find that women do more housework than men across the board, but that ‘the gender gap is highest among married persons’.⁴³ Men’s hours of housework remain consistent whether married or single (they increase where men are divorced or widowed), but women’s hours are higher when cohabitating and higher still when married. The authors argue that wives’ increased housework is not explained by children or reduced hours of paid work, and attribute it instead to the increased power of the normative requirement to ‘display gender’ that marriage brings.⁴⁴

Another example is domestic violence. Michael Johnson and Kathleen Ferraro argue that domestic violence can best be understood if distinctions between different categories of violence are made. ‘Common Couple Violence’ or CCV ‘arises in the context of a specific argument in which one or both of the partners lash out physically at the other’.⁴⁵ CCV does not usually escalate and is most likely to be mutual, although men are somewhat more likely to be the perpetrators than are women. It is found in marriage, but also in cohabitation and dating relationships, and is not confined to opposite-sex couples. But ‘Intimate Terrorism’ or IT is correlated with marriage. In IT, violence is used ‘as merely one tactic in a general pattern of control. The violence is motivated by a wish to exert general control over one’s partner. IT involves more per-couple incidents of violence than does CCV, is more likely to escalate over time, is less likely to be mutual, and is more likely to involve serious injury.’⁴⁶ Some studies find that IT is more common in marriage than in cohabitation or dating relationships, leading Johnson and Ferraro to wonder whether marriage, ‘although not a license to hit, is for some people a license to terrorize’.⁴⁷ What we can say is that, even where (p.22) domestic violence takes place in non-marital relationships, it is connected to tropes of ownership and control that are distinctively marital.

The state recognition of marriage also has implications more broadly, since it shores up the notion of the couple-headed household as ideal family form, which in turn shores up the system that makes children and work difficult to combine—what Joan Williams refers to as the clash between the norm of the ideal worker and the norm of parental care.⁴⁸ These clashing norms thus make life even harder for unmarried people as compared with married ones, since they strengthen the ideas that work does not have to take account of caring responsibilities, that children are harmed if their mothers work outside the home, and that people should not rely on state benefits. These ideas are compatible only within a family structure based on traditional marriage, with a breadwinning husband and a housewife, and yet they provide the cultural, legal, and financial structures within which everyone must operate.

The extent to which marriage is associated with practical oppression or disadvantage for women depends on particular laws and sociological facts. 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 feminists have also always argued that marriage disadvantages women symbolically, by casting women as inferior. This theme recurs in several of the historical feminist critiques just surveyed. It is still deeply relevant today.

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.⁴⁹ 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. Many heterosexual women see single life as a temporary phase preceding marriage, and being single for longer or when older is construed as sad and shameful, and at least partially the fault of the single woman herself.⁵⁰ A particularly striking example of this sort of pressure can be found in The Rules, (p.23) the best-selling 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. Women wishing to ignore, let alone criticize, 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.⁵¹

J. Jack Halberstam provides many examples of the portrayal of marriage as ultimate destiny for women in popular culture. The pinnacle of this form, of course, is the romantic comedy. In the average ‘rom com’ marriage is both women’s downfall and their ultimate aim: protagonists have to overcome various pitfalls on their way to the altar, such as commitment-phobic men, choosing the wrong man, choosing the wrong dress, choosing the wrong bridesmaids, choosing the wrong bridesmaids’ dresses…The aim always has to be marriage, though, spurred on by the fear of spinsterdom. As Halberstam puts it ‘The wedding is the cum shot of the romantic comedy.’⁵²

We might ask 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 women 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 law, marriage remains an institution rooted in the subjection of women.⁵³

The question of whether the patriarchal history of an institution continues to taint its modern incarnations even if the explicitly patriarchal aspects have been (p.24) reformed is a vexed one.⁵⁴ It seems obvious that institutions need not remain unjust forever, beyond the abolition of that which initially made them unjust. For example, cotton picking in the USA and chimney sweeping in the UK were once done by slaves and children respectively, both unjust forms of labour; and democratic participation was denied to women in the UK (and elsewhere) until the extension of the suffrage in the early twentieth century. But cotton picking, chimney sweeping, and democracy are not inherently unjust once slavery, child labour, and sex discrimination are abolished: the injustice does not outlive its concrete manifestation. Why, an objector might ask, should marriage be any different?

The question of whether an unjust institution remains unjust after reform invokes two key issues: participation and meaning. First, consider participation. It is possible for an institution to be unjust only because participation in it is on unequal terms; in these cases, equal participation removes the injustice. The example of democracy is like this. The ideal of democracy is government by the people, and participation in a society of equals. The male-only suffrage is unjust precisely because it excludes women from the category of ‘the people’, reflecting and perpetuating a context in which they are treated unequally. If women are the only group excluded from the vote then changing the situation to allow women to participate ends the injustice, because their participation changes the institution of voting from one that is exclusionary and based on inequality to one that is inclusive and egalitarian. The same is not true if women are not the only group excluded from voting. If a multi-racial society initially allows only white men to vote and then opens the suffrage to include white women, the move is in some sense an improvement. But opening the vote to white women in such a society does not make the institution of voting just if people of colour remain excluded from it.

So too for marriage. Like democracy, marriage may be rendered more just if it is opened up to more people: introducing same-sex marriage is an improvement on traditional marriage. But introducing same-sex marriage does not make the institution of marriage just if other people are excluded from it and the benefits it provides. The move to same-sex marriage still excludes people in non-monogamous relationships, and people who are in monogamous relationships but who do not want to solemnize those relationships through the institution of marriage for reasons such as religion, culture, politics, uncertainty, or one person’s reluctance. (p.25) This group also includes people who are not in stable sexual or personal relationships at all but who could still benefit from things such as tax breaks, immigration rights, health insurance, or pension rights. These are rights that individuals may legitimately want to assign to friends, relatives, or cohabitants: anyone with whom one has a non-conjugal yet significant relationship. Including same-sex couples in the category of people who may participate in and benefit from marriage is thus not sufficient to rectify the participatory injustice.

The second issue, particularly pertinent in the case of marriage, is that of meaning. Return to the examples of cotton picking and chimney sweeping. These activities do not remain unjust if their association with slavery and child labour is removed, because there is nothing inherently unjust about the activities of picking cotton and sweeping chimneys. It would, of course, be possible for the injustice of those professions to persist, if people who worked in them were denied adequate wages or safety equipment or faced unfair working conditions. But it is in principle possible for those activities to be performed in fair conditions for fair pay.

It follows that cotton picking and chimney sweeping can in principle be performed justly. One way of seeing this is to note that many welfare states, such as the one in the UK, provide unemployment benefit only if no job is available to the claimant. That may or may not be a just arrangement (the movement for basic income argues that it is not). But if it were a just arrangement then it would not be unjust to require a fit, able-bodied person to take a job as a chimney sweep or a cotton picker or else lose unemployment benefits, as long as those jobs were fairly paid and properly regulated.

The same is not true of all jobs. It would not be compatible with justice to require someone to take a job as a prostitute or else lose benefits, and this injustice would persist even if being a prostitute were fairly paid and properly regulated. First, the injustice of prostitution is largely based on the deep and ancient gender inequality associated with that practice, a gender inequality that persists in society at large. Prostitution has always been an activity providing male access to women’s bodies, based on a model of human sexuality that places men’s needs over women’s and that regards prostituted women as debased objects for use. Paying prostituted women fairly does not undermine those deep-seated cultural meanings of the practice. Second, prostitution makes sense only in a context of wider gender inequality, one in which many women lack realistic alternative options for achieving financial independence such that prostitution may appear the best, or only, option. Improving conditions for prostituted women, though laudable in and of itself, does not change the context of inequality that makes prostitution exist as a gendered phenomenon. Third, one’s (p.26) sexuality and one’s sexual organs are deeply private and intimate, and it is a profound and crucial part of our cultural understanding of sex that it must be fully consensual if it is not to be criminal and abusive. Improving conditions for prostitution does not remove the profound injustice of being forced to have sex in order to survive.

For all these reasons, it would not be acceptable for the state to require people to take jobs in prostitution or else lose benefits, even if prostitution were fairly paid and properly regulated. State-mandated prostitution would worsen and not mitigate the idea that it is appropriate for men to use women’s bodies for sexual satisfaction, and it would not undermine the idea that women’s bodies are appropriately considered as objects for use. Even if men were also required to take such jobs where possible the situation would still be unjust, because there would not be such a demand for male prostitutes as female prostitutes (and so it would be less likely that men would in fact have to take such a job), and because a prostituted man is not regarded as a debased object for use and abuse in the same way as a prostituted woman. Male prostitution does not undermine gender inequality generally. And finally, even if we ignore the gendered aspects of prostitution, the privacy and intimacy of sex and the necessity for it to be fully consensual mean that it would still be unjust to require anyone to have sex with other people indiscriminately in order to survive.

State-recognized marriage shares many of the meaning-based features of prostitution, even though marriage is not nearly as unjust as state-mandated prostitution would be. First, like prostitution marriage is an institution that is largely based on ancient and enduring inequality between women and men, one that stems from and reinforces a gendered society in which women are viewed as objects for male ownership and use. Second, its location within a wider system of gender equality means that marriage, like prostitution, is more central to women’s life chances than it is to men’s. The persistence of the gender pay gap and discrimination against women in the workplace, both of which worsen considerably when women become mothers, mean that women are much more dependent than men are on marriage and the financial support of a spouse.⁵⁵ The persistence of cultural pressures on women to get married means that women are much more likely to feel that they have to get married in order to be valuable. But it is unjust if women’s ability to combine work and motherhood, the social bases (p.27) of women’s self-respect, and the benefits which are associated with marriage, are all dependent on participation in a particular form of sexual relationship.

What makes marriage distinctive is that it is an institution entered into not only for the practical benefits it may bring but also because of the meanings it represents, something discussed in more detail in Chapter 2. Couples may marry so as to obtain various practical benefits, but a key aspect of most marriages is the statement the couple make 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, as demonstrated in debates about same-sex marriage discussed next.

Thus the state recognition of marriage is state intervention in, and control of, the meaning of marriage. As Tamara Metz puts it, ‘the “establishment of marriage” highlights the state’s integral role in reproducing and relying on belief in a particular, comprehensive account and institutional form of intimate life’.⁵⁶ 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.

It is possible for practices to change their meanings, such that those that were once associated with injustice can be transformed into practices of liberation and equality. For example, the pink triangle was initially used by the Nazis as a symbol of stigma for those prisoners in concentration camps who were deemed to be gay, but it has since been reclaimed by the gay rights movement as a symbol of empowerment.⁵⁷ As we shall see in Section 1.2, there is significant debate within feminism and the gay rights movement as to whether same-sex marriage will have a progressive or reactionary effect.

1.2 Marriage as Heterosexist

As noted at the outset, the number of countries that recognize same-sex marriage has increased dramatically in recent years. However, for the vast majority of its history, marriage has been an institution reserved for different-sex couples, assumed to be heterosexual. Thus the second major strand of feminist critique of marriage is that it is heterosexist.

According to this critique marriage benefits those who enter into it. Thus feminists, who favour gender equality and oppose discrimination on the grounds (p.28) of both sex and sexuality, must oppose marriage as long as it is denied to same-sex couples.⁵⁸ Many feminists campaign for the extension of marriage to same-sex couples, and some argue that extending marriage to lesbians and gays would transform the institution.

Once again, this line of argument can be separated into practical and symbolic strands. Practically, marriage privileges heterosexuality if it is denied to same-sex couples and if the law is structured so as to give married couples particular rights that are denied to unmarried couples. Such laws discriminate against not only same-sex couples but all unmarried individuals (whether single or in a relationship). In the UK, for example, spouses and registered partners (who must be same-sex) do not have to pay inheritance tax when inheriting each other’s property, unlike those in any other form of relationship, and until recently marriage was available only to different-sex couples. Material benefits such as this lead Thomas Stoddard to advocate same-sex marriage ‘despite the oppressive nature of marriage historically, and in spite of the general absence of edifying examples of modern heterosexual marriage’.⁵⁹

Heterosexual-only marriage also has discriminatory symbolic effects. By recognizing heterosexual marriage, the state confers legitimacy and approval on such partnerships and denies it to gay and lesbian ones. Thus Maria Bevacqua, a lesbian feminist, 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.⁶⁰

Bevacqua’s insistence that the humiliation is independent of the feelings of the humiliated emphasizes 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 US Supreme Court has called it ‘noble’ and ‘sacred’.⁶¹ (p.29) Understandably he ‘resents’ and ‘loathes’ the fact that, according to the Court at the time he was writing, lesbians and gays were not deemed able to enter into such noble and sacred relationships.⁶² Like Bevacqua, Stoddard believes that legalizing same-sex marriage is a crucial egalitarian step, even if many gays and lesbians 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’.⁶³

According to these feminist critiques, then, marriage oppresses both those heterosexual women who do or could participate in it and those lesbians and gays who could not; and it does so in ways that are both practical and symbolic. But these criticisms can conflict in their implications for marriage reform, rendering the debate exceedingly complicated. Consider, for example, whether it would be desirable from an egalitarian perspective to legalise same-sex marriage.

1.3 Is Same-sex Marriage Egalitarian?

I stated earlier that, if marriage is to be recognized by the state at all, then equality requires the recognition of same-sex marriage. But perhaps that claim was too hasty. With the various feminist critiques in mind, we can now see that the issue is by no means clear-cut.

Reserving marriage for different-sex couples is, according to the feminist critiques considered so far, symbolically oppressive to both women and gay men. If same-sex couples are allowed to marry, it is not clear whether its oppressiveness will rub off onto lesbians and gays, making them worse off, or whether the anti-patriarchy of queer lives and culture will rub off onto marriage, making all women better off.

Feminists and advocates of gay rights have argued both ways but, in the current political climate, pro-marriage voices prevail. The simplest egalitarian argument in favour of same-sex marriage is that it is needed to rectify an inequality of civil rights and practical benefits. This issue is particularly salient in those polities which connect a great deal of rights and duties to marriage. The USA is paradigmatic here, as marriage is crucial in many areas such as health insurance, welfare payments, housing, and immigration.⁶⁴ So Margaret Morganroth Gullette writes that she was transformed from ‘a rebellious critic of the institution (p.30) 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’.⁶⁵ For Joan Callahan, since the complete abolition of marriage is a long way off, same-sex marriage is a ‘central way to work on defeating systemic homophobia and heterosexism, while immediately affording equal crucial rights and goods of many sorts to sexual and gender minorities’.⁶⁶ This is the sense in which we can initially state that egalitarians should support same-sex marriage, if marriage exists at all.

But the egalitarian case for same-sex marriage does not rest only on the practical legal benefits that accompany marriage, for many of those could be provided to unmarried people on equal terms (and since there is an equally pressing inequality of service provision for those who are unmarried by choice). Instead, the basic argument for same-sex marriage on the grounds of equality is that the right to marry, pure and simple, must be equally available to all.

The idea that the right to marry is both intrinsically valuable and sometimes illegitimately denied is grounded in recent historical experience. For example, restrictions on interracial marriage were in place in Nazi Germany and South African apartheid. In the USA slaves were not able to legally marry, and slave families were subject to permanent separation at the whims of their owners.⁶⁷ The end of slavery did not mean the end of unequal marriage by race, for many states retained antimiscegenation laws prohibiting interracial marriage. In 1967 the landmark Supreme Court case Loving v Virginia struck down those laws as unconstitutional for violating equal protection. In his ruling Justice Warren described marriage as ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men…one of the “basic civil rights of man”, fundamental to our existence and survival’.⁶⁸ In its ruling in Obergefell v Hodges in 2015 the Court once again affirmed the centrality of marriage:

[T]he annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.…Its dynamic allows two people to find a (p.31) life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.⁶⁹

Article 12 of the European Convention of Human Rights is entirely devoted to the right to marry: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’⁷⁰

So marriage is often considered, even in liberal democratic states, to be central to human flourishing. The experience and legacy of institutional racism and heterosexism in marriage lends support to what I call the basic egalitarian claim for same-sex marriage:

The basic claim: if different-sex marriage exists, then the principle of equal rights requires the recognition of same-sex marriage.

The philosophical issue at stake is whether equal rights require same-sex marriage or, to put it in reverse, whether restricting recognition to different-sex marriage just is to instantiate unequal rights. This question might seem easy to answer but, like all philosophical questions, it is not.

The idea of marriage equality can be stated simply: if heterosexuals can marry then lesbians, gays, and bisexuals should be able to marry as well. This apparent simplicity is echoed in the fact that many supporters of same-sex marriage describe themselves as supporters of ‘marriage equality’.⁷¹ On this reasoning, then, denying same-sex marriage is denying equal rights. Thus Alex Rajczi claims that a case for same-sex marriage can be built on only ‘widely-accepted political principles’ of equal opportunity:⁷² ‘there is not one single thing wrong with homosexuality, and so gay people should never be treated differently from anyone else’.⁷³

The basic claim that equality requires same-sex marriage is one with a great deal of appeal for feminists and other egalitarians.⁷⁴ But many have argued (p.32) against the basic claim. For example, Richard McDonough argues that traditional, different-sex-only marriage should not be equated with heterosexual marriage. Different-sex-only marriage gives every single person regardless of sexuality the exact same, equal right: to marry a person of a different sex. This right is not, he claims, worthless to lesbians, gays, and bisexuals, since many of them have in fact had successful marriages to people of a different sex. For McDonough, people ‘are free to argue for the right to marry persons of the same sex, but this must be an argument for a new right, for the right which they want is not “the same” one already possessed by homosexuals’.⁷⁵ Same-sex marriage is not, then, a requirement of equality in the most basic sense, and so the basic claim fails.

One response to McDonough’s argument is to say that it misdescribes the right that is at stake. It may be true that, under traditional marriage, everyone has the right to marry a person of a different sex. But the importance of the right to marry is not captured by the idea of an interest in marrying a person of a different sex. After all, antimiscegenation laws gave every person the right to marry someone of their own race, but that way of stating the right to marry does not capture its intrinsic importance.

Instead, we must construe the right to marry more carefully. There are various ways of doing so: it could be a right to marry whichever consenting person you choose,⁷⁶ or a right that belongs to a couple as couple,⁷⁷ or the right to marry for love.⁷⁸ Similar conceptual issues arise in all cases, so we can consider just one option. What is valuable, let us assume, is the right to marry the person with whom you are in sexual love. Since heterosexuals will, by definition, be in sexual love with people of a different sex, the availability of different-sex marriage gives them the right to marry for sexual love. Bisexuals have the right to marry for sexual love in some cases but not all; that is to say, they are permitted to marry only some kinds of people with whom they may be in sexual love. But since gays and lesbians feel sexual love only for people of the same sex, then they do not have the right to marry for sexual love without same-sex marriage.

(p.33) The usual counter-argument at this point runs as follows. If equality requires that same-sex couples have the right to marry for love, then it also follows that polygamists have the right to marry for love, and adult incestuous couples have the right to marry for love, such that there is a slippery slope from same-sex marriage to polygamy and incest. For example, William Bennett asks rhetorically ‘why on earth’ an advocate of same-sex marriage would ‘exclude from marriage a bisexual who wants to marry two other people? After all, exclusion would be a denial of that person’s sexuality. The same holds true of a father and daughter who want to marry. Or two sisters. Or men who want (consensual) polygamous arrangements.’⁷⁹

A great deal of the political, legal, and philosophical literature on same-sex marriage has thus been devoted to the idea of whether the equality arguments for same-sex marriage do entail the recognition of other sorts of marriage and, if so, whether that would be a bad thing. One notable response comes from Jonathan Rauch, who argues that lesbians and gays want the possibility of marrying for love but that that possibility does not have to be unlimited. ‘What homosexuals are asking for,’ he writes, ‘is the right to marry, not anybody they love, but somebody they love, which is not at all the same thing.’⁸⁰ Rauch therefore argues that same-sex marriage does not entail support for polygamy, since polygamy is essentially a demand to be able to marry more than just some(one)body.⁸¹ In a similar vein, John Corvino gives many examples of what he calls the PIB argument—the argument that recognition of homosexuality leads inexorably to recognition of polygamy, incest, and bestiality. He rejects this argument on the grounds that there is no reason why homosexuality is more closely connected to PIB (p.34) than heterosexuality. Sexual practices, for Corvino, ‘ought to be evaluated in terms of their relative contribution to human flourishing…there is no reason to presuppose that homosexuality is more like PIB in this contribution than heterosexuality’.⁸² Other egalitarians disagree. Ronald Den Otter, for example, argues that support for same-sex marriage does entail support for plural marriage, but that this is not an argument against same-sex marriage since plural marriage is morally unproblematic and deserves recognition.⁸³

What this debate highlights is that we cannot debate marriage without making value judgements about what marriage really is and why it is valuable.⁸⁴ The basic claim rests on the premise that same-sex relationships are the same as different-sex relationships in some relevant characteristic. We therefore need to ask what the relevant characteristic of marriage is: what is it about marital relationships that makes them valuable and worthy of state recognition? The answer we give to this question will determine how extensive marriage should be. If what is valuable about marital relationships is their heterosexuality then we should endorse traditional marriage (and possibly extend it to heterosexual incestuous couples). If it is procreation then we should reserve marriage for those couples who are able and willing to procreate, which may include same-sex couples using IVF, sperm donation, or surrogate mothers, and include polygamous marriage, but exclude even different-sex couples who cannot or do not procreate. If it is love or care then we should extend marriage to all loving and caring relationships, whether sexual or not. If it is stability and commitment then we should extend marriage to all but make divorce much more difficult. If it is monogamy then we should recognize monogamous relationships of whatever sex, but should be less willing to consider remarriage after divorce. And so on.

The important point is that even the basic claim from equality cannot be made without considering the meaning of marriage; and the meaning of marriage, as with all other social, cultural, and legal institutions, is inevitably social. We are (p.35) not the sole authors or arbiters of the meanings of our practices. Our practices mean, to a significant extent, what they mean in the society in which they and we are situated. So we are once again returned to the question of what marriage means, and whether its patriarchal meanings are strengthened or overcome by the movement towards same-sex marriage.

We have already seen that, for Stoddard, same-sex marriage is needed not just to rectify inequality but also for what he assumes will be its more general progressive effects. Cheshire Calhoun also argues that same-sex marriage is necessary as it marks that homosexuality is no bar to full citizenship.⁸⁵ On the other hand, Paula Ettelbrick 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’,⁸⁶ she writes. Nancy Polikoff agrees: ‘Everything in our political history suggests that a concerted effort to achieve the legalization of lesbian and gay marriage will valorize the current institution of marriage…[and] work to persuade the heterosexual mainstream that lesbians and gay men seek to emulate heterosexual marriage as currently constituted.’⁸⁷

For Katherine Franke, the repressive effects of same-sex marriage extend to society as a whole: ‘Not only have some advocates of same-sex marriage abandoned any effort to promote respect, non-discrimination, and recognition of diverse family forms, but they have veered in the direction of portraying families with non-married parents as a site of pathology, stigma, and injury to children,’⁸⁸ she writes. ‘Letting same-sex couples into the club leaves in place the bias and shame suffered by those who can’t or won’t fulfil the criteria for membership.’⁸⁹ For Franke the deeply normative nature of marriage, which same-sex marriage strengthens rather than undermines, can be seen by looking at those who defend same-sex marriage from a conservative standpoint: ‘When the conservatives sign up for marriage equality, they do so because it dawns on them that their interests in traditional family values, in the nuclear family, in privatizing dependency, and in bourgeois respectability are stronger than their homophobia.’⁹⁰

Franke also worries that many same-sex couples, particularly gay men, wish to engage in prenuptial agreements that circumvent requirements such as alimony. (p.36) These prenups may be quite appropriate for the structure of those relationships, if they do not take the traditional gendered form of breadwinner and dependent homemaker, since standard divorce law would lead to an unjust distribution of assets. But their increased use ‘risk[s] undermining or weakening the justice-enhancing traditions that women’s rights advocates have worked hard to build into marriage’.⁹¹

Card is another prominent feminist critic of same-sex marriage. She argues that, while it is unjust that marriage is denied to lesbians and gays, the injustice of the institution as a whole means that lesbians and gays should not fight for the right to marry—just as white women should not have fought for the (equal) right to be slave-owners:

Let us not pretend that marriage is basically a good thing on the ground that durable intimate relationships are. Let us not be eager to have the State regulate our unions. Let us work to remove the barriers to our enjoying some of the privileges presently available only to heterosexual married couples. But in doing so, we should also be careful not to support discrimination against those who choose not to marry and not to support continued state definition of the legitimacy of intimate relationships. I would rather see the state deregulate heterosexual marriage than see it begin to regulate same-sex marriage.⁹²

Similarly, Judith Butler argues that the basic claim for equal civil rights obscures symbolic injustice. ‘The petition for marriage rights,’ she argues, ‘seeks to solicit state recognition for nonheterosexual unions, and so configures the state as withholding an entitlement that it really should distribute in a non-discriminatory way, regardless of sexual orientation. That the state’s offer might result in the intensification of normalization is not widely recognized as a problem within the mainstream lesbian and gay movement.’⁹³ Butler insists that this intensification of normalization is both evident and troubling. The idea that marriage is the only way to sanction homosexuality is ‘unacceptably conservative’,⁹⁴ and the attempt to use same-sex marriage to rectify heterosexism ‘brings with it a host of new problems, if not new heartaches’.⁹⁵ Butler’s worry is that state recognition for same-sex marriage will further delegitimate non-marital relationships and forms of life, an effect that would be particularly troubling for the queer community.

(p.37) Sheila Jeffreys also 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.’⁹⁶

Ann Ferguson describes her own situation, in which her Muslim son-in-law convinced his wife (Ferguson’s daughter) to prevent their child from seeing Ferguson on the grounds that she was in a lesbian relationship. For Ferguson, ‘[i]n this and other cases of queer chosen kinship no legal changes by themselves to the structure of marriage will remove the stigma of violating the heterosexual normativity required for legitimate kinship. Only a pluralist culture that accepts the sexual rights of those who deviate from the heterosexual norm will do this.’⁹⁷ And Ferguson echoes the worry of theorists such as Ettelbrick and Butler that same-sex marriage may in fact be harmful, by ‘creat[ing] a new hierarchy—the socially acceptable gay marrieds versus the queer abjected’.⁹⁸ Ferguson’s conclusion is not that same-sex marriage can never be compatible with equality, but that there is no necessary correlation between the two, ‘and engaging in it may indeed lead to a worse situation in some contexts’.⁹⁹ Whether it helps or harms depends on the legal, economic, social, and citizenship status of those who are affected by it. Same-sex marriage is thus a ‘morally risky’ institution and support for it is always problematic, whether that support is for creating it as a state-recognized institution or participating in it where it exists.

As Halberstam puts it:

So, to summarize: marriage is an agenda forced upon LGBT groups by the widespread opposition to gay marriage, and while some gays and lesbians choose to marry, it’s not a cause that lies at the heart of the queer community. Marriage flattens out the varied terrain of queer social life and reduces the differences that make queers, well, queer, to legal distinctions that can be ironed out by the strong hand of the law.¹⁰⁰

What does this discussion show? Does it show that feminists are hopelessly confused, because they believe that marriage is both bad and good, both liberatory and oppressive, both patriarchal and egalitarian? Or does it show that feminism is (p.38) an incoherent doctrine, a social movement without unity? No. Confusion and disagreement are inevitable features of the human condition, but there is a way to make sense of all the feminist arguments on marriage considered here. Both advocates and opponents of same-sex marriage—those, that is, who are feminist or at least egalitarian—share the view that traditional, different-sex-only marriage is deeply problematic. Egalitarians identify the problem as one of inequality; feminists refine it as patriarchy.

We started with an apparent puzzle. Feminists argue that marriage is oppressive to both its (female) participants and its (lesbian and gay) non-participants. The solution to this puzzle is that marriage, as an institution, just is oppressive. Quite possibly, if the institution of marriage exists, it is better to be married than not. Even more plausibly, if the institution of marriage exists, it is better to be legally permitted to enter it than to be excluded from it. But the fact that marriage might be the best or only way to securing a variety of social, economic, and legal goods does not undermine the fact 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 lesbians and gays are two sides of the same coin. Marriage is oppressive to women as compared to a world without marriage. It is oppressive to deny same-sex marriage only insofar as that institution does exist. The common thread is that the existence of marriage oppresses, and its removal liberates.

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 for others and confers practical or symbolic benefits. But there is no necessary harm if the state refuses to recognize marriage at all.¹⁰¹

The natural implication is that equality is best served if marriage ceases to exist as an institution. Abolishing the institution satisfies all feminist critiques, and is thus a policy implication around which feminists should unite.

(p.39) 1.4 Civil Union

Some egalitarians declare that, even if traditional marriage is oppressive, there is room for a reformed, gender-neutral, sexuality-neutral, breaking-with-history marriage—marriage, perhaps, that is named something else. This sort of instinct may explain why many egalitarians who oppose marriage argue in favour of civil unions as an alternative.¹⁰² The ideal of a civil union is the ideal of marriage untainted by patriarchy or religion. Civil unions may be an accompaniment to marriage or a replacement for it; if an accompaniment, they may be available to all (as in France and the Netherlands) or available to same-sex partners only (as in the UK).

Civil unions have two advantages from the feminist point of view: first, they give all couples (including same-sex couples) 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 same-sex 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 all couples regardless of sex.¹⁰³ The status of civil partnership would thus be doubly egalitarian: it would emphasize equality between different- and same-sex couples since both could enter into it, and it would emphasize equality between men and women by breaking from patriarchal history and by imposing equal terms on each member of the partnership.

Susan Shell argues that liberals should support a dual regime, with marriage reserved for different-sex couples and civil unions available for same-sex couples. Shell argues that this is a liberal solution because it goes some way towards satisfying both traditionalists and libertarians, and thus captures the liberal requirement of reasonableness, understood as making reasonable accommodation for others’ moral commitments. Lesbians and gays should be able to adopt children without prejudice, and to have access to some of the benefits of (p.40) marriage, but marriage itself should be retained for different-sex couples and defined as a union that ‘automatically entails joint parental responsibility for any children generated by the woman’.¹⁰⁴

But this policy of distinguishing civil partnership from marriage has various disadvantages. If the title ‘marriage’ is reserved for different-sex relationships the institution of civil partnerships entrenches 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 and controversial meanings (such as Shell’s idea that marriage is defined by procreation). Moreover, the fact that marriage symbolically oppresses lesbians, gays, and bisexuals remains, since the discriminatory and hierarchical distinction between different- and same-sex couples is unchanged if only different-sex couples may marry.

This partly explains why the usual trajectory of legal reform in liberal democracies¹⁰⁵ is as follows:

1. 1. Marriage for different-sex couples only. No recognition of same-sex partnerships.

2. 2. Marriage for different-sex couples only. Civil unions for same-sex couples only.

3. 3. Marriage extended to same-sex couples.

4. 4. Abolition of civil unions.

The move from stage 1 to stage 2 allows the state to extend legal rights to homosexual couples without seeming to undermine the traditional and special status of marriage. After some years of same-sex civil unions, the idea of same-sex marriage gains popular acceptance, and so the state moves from stage 2 to stage 3. Stages 3 and 4 may occur simultaneously but are generally close together. Robert Wintemute calls this the ‘“Wintemute law of registered partnership laws”: they are always, everywhere in the world, introduced primarily to address the absence of any legal recognition of same-sex marriage, while continuing to exclude them from marriage, and not to create an alternative for all couples.’¹⁰⁶ He cites South Africa as a notable exception for its introduction of same-sex marriage and civil partnerships for all at the same time in 2006. Another exception is Greece, which (p.41) is ‘alone in all European countries’¹⁰⁷ in introducing registered partnerships for different-sex couples only.

In some jurisdictions this use of civil unions is quite explicit. In Ireland, for example, Article 41.3.1 of the Constitution expressly stipulates ‘The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.’ Brian Tobin argues that the 2015 Marriage Equality Referendum that legalized same-sex marriage in Ireland thereby rendered same-sex civil partnerships unconstitutional, since now they compete with, and undermine, marriage. Ironically, the more popular civil partnerships are the more they violate the constitution.¹⁰⁸

Questions about the ideal trajectory of reform are interesting but impossible to settle here.¹⁰⁹ It may be that the move to recognize same-sex marriage is an important or even necessary step on the path to equality, since public debates and legal change on this issue play a vital role in galvanizing public acceptance of homosexuality and equal rights. Or, it may be that the move to same-sex marriage is ultimately conservative, silencing calls for universal civil unions or the marriage-free state. Most likely this will be different for different societies. I make no recommendations, then, for the precise path towards the marriage-free state. But I do propose the following ranking of stopping-places.¹¹⁰ The nearer a society is towards the top of the list, the better.

1. 1. The marriage-free state.

2. 2. Civil unions¹¹¹ for same-sex and different-sex couples. No state recognition of marriage.

3. 3. A choice between civil unions and state-recognized marriage for both same-sex and different-sex couples.

4. 4. Marriage for both same-sex and different-sex couples.

5. (p.42) 5. Marriage for different-sex couples only; civil partnerships for same-sex couples only.

6. 6. Marriage for different-sex couples only.

Civil unions are better than marriage, then, but they are not the ideal form of regulation for two main reasons. The first is that they still entail bundling rights and duties which, as I argue in Chapter 2, is problematic as it does not fit many relationships. The second is that, like marriage, civil unions maintain inequality between partnered and unpartnered people. I explore this inequality in Section 1.5.

1.5 Inequality between Married and Unmarried People

The central egalitarian problem with civil unions is that they do nothing to challenge the hierarchy that marriage enacts between being partnered and being single. 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.¹¹²

Lisa Dettmer argues that the gay marriage movement risks exacerbating inequality, not solving it, because marriage is a system for discriminating against the unmarried and because rich people are more likely to be married than poor people. She cites a study by Lisa Duggan which found that the majority of LGBT people in California were not in stable partnerships. However, ‘white, wealthy gay men are the most partnered population in California. And, for instance, Black lesbians are the least partnered and the most likely to have children.’¹¹³ The implication is that same-sex marriage is an issue that benefits the already advantaged.

Of course, not every campaign and worthwhile cause is about the very worst off: it is perfectly reasonable for egalitarians to care about equal rights at all stages of an income distribution. But same-sex marriage is not something that simply (p.43) benefits the already-advantaged; it also harms the already-disadvantaged. Indirectly, campaigns for gay marriage took focus and funding away from campaigns and programmes that were crucial to poor LGBT people, such as those providing health care and housing.¹¹⁴ And Franke suggests that the whiteness of the gay marriage movement helped that cause and did so at the expense of perpetuating:

the negative reputation African Americans suffer when it comes to marriage.…When judges, policy makers, or the media are persuaded that same-sex couples are sufficiently similar to different-sex couples when it comes to marriage, that recognition of shared identity is premised upon the specter of a constitutive outsider that gay couples are not like. And what they are not like is African Americans (even though, of course, many lesbians and gay men are African American).…A conception of marriage as the pinnacle of mature personhood and mutual responsibility is…saturated with racial and gender stereotypes.¹¹⁵

It is worth noting that the existence of tax and other benefits for married couples in some jurisdictions does not simply mean that unmarried individuals cannot access a benefit. If 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.¹¹⁶

More directly, marriage itself discriminates against the unmarried. The egalitarian demand for same-sex marriage is a demand for access to the material and symbolic privileges of marriage. Achieving same-sex marriage does nothing to undermine, and may even strengthen, the connection between marriage and benefits that ought to be universal.¹¹⁷ As Dettmer puts it, ‘While marriage is being rewarded, other ways of organizing family, relationships and sexual behaviour do not receive these benefits and are stigmatized and criminalized. In short, people are punished or rewarded depending on whether or not they marry.’¹¹⁸

For Polikoff this point can be put simply: ‘“Couples”, meaning two people with a commitment grounded on a sexual affiliation, should not be the only unit that counts as a family.’¹¹⁹ Polikoff therefore argues for an approach that would value (p.44) all families equally, including those headed by same-sex couples, by single parents, and those without children. ‘When law makes marriage the dividing line, it harms all unmarried people, including those with children. The harm is the dividing line.’¹²⁰

The problem runs deep. It is not just the symbolism of marriage as founded on heterosexuality that is retained within civil unions, but the practical and symbolic hierarchy between coupled and uncoupled people of all sexualities. Brake terms this privileging of the sexually monogamous committed dyad ‘amatonormativity’, and argues that ‘amatonormative discrimination is wrong for the same reasons that other forms of arbitrary discrimination are wrong’:

The similarities between exclusive amorous relationships, friendships, and adult care networks can involve mutual support, intimacy, and caretaking that provide emotional fulfilment and are grounds for moral approbation. But not only do friendships and care networks lack social recognition, their members are systematically subjected to stereotyping and discrimination.¹²¹

Brake’s critique of amatonormativity might lead us to be suspicious of framing egalitarian aims in terms of the family, as Polikoff does: this term, too, might exclude some care and relationship networks that deserve equal consideration.

Brake invokes a variety of non-traditional relationships to highlight the limits of amatonormativity, such as ‘urban tribes, best friends, quirkyalones, polyamorists and revolutionary parents’.¹²² But it is not just ‘alternative’ lifestyles such as these that are excluded. In 1971 Mitchell wrote of the range of familiar yet diverse relationship forms that exist but are obscured by the ‘monolithic’ institution of marriage:

Couples—of the same or of different sexes—living together or not living together, long-term unions with or without children, single parents—male or female—bringing up children, children socialized by conventional rather than biological parents, extended kin groups, etc.—all these could be encompassed in a range of institutions which match the free invention and variety of men and women.¹²³

The social significance of these alternative relationship forms can be seen by considering the comparative data on the proportion of children born out of wedlock. This statistic varies significantly by country. In Columbia, Peru, and Cuba the figures are 74 per cent, 69 per cent, and 68 per cent; in China, India, (p.45) Saudi Arabia, and Egypt the figure is less than 1 per cent.¹²⁴ But in Western liberal democracies there is more uniformity, with the proportion of children born out of wedlock generally around the 40–50 per cent mark. In 2014 in England and Wales 47.5 per cent of children were born to mothers who were neither married nor in a civil partnership;¹²⁵ in 2013 in the USA 40.6 per cent of children were born to unmarried mothers;¹²⁶ in Denmark 50 per cent of children are born out of wedlock.¹²⁷ So marriage cannot any longer be described as the normal situation for bringing up children in western liberal democracies.

So, the ‘diverse care networks’ to which Mitchell and Brake refer are traditional, mainstream, and significant in number. In the USA they are also more prominent in black communities. Franke details how, for African Americans,

the nuclear family has never been the most common way they have arranged their family lives. Instead, black families have tended to be predominately female-headed, and rather than relying upon a single wage earner for financial stability and a single homemaker for domestic stability, they have drawn from a broad network of aunts, grandmothers, close friends, and others to provide support to both mothers and children.¹²⁸

A focus on the married couple as the paradigmatic form of family relationship and the paradigmatic source of stability is, on this analysis, racist as well as sexist.

Conclusion

In case a reader is unconvinced by the argument to this point, let me offer a final observation. Perhaps you think that it is possible for marriage to be compatible with equality; perhaps you think that some suitably-reformed version can avoid the associations with patriarchy and heterosexism and can avoid (somehow!) being inappropriately biased towards committed coupledom. In that case you might not think that the marriage-free state has been shown to be necessary. Or you might not think it yet—there are many more arguments to come. But even at this early stage I hope to have shown that there are reasons for an egalitarian to be (p.46) suspicious of marriage, and that alone ought to provide a prima facie case for the marriage-free state.

The basic egalitarian case against marriage that this chapter has set out is that it is an institution founded on patriarchy and heteronormativity, that its reform to include same-sex couples does not do enough to make it egalitarian since the very idea of marriage remains rooted in forms of intimacy that are associated with heterosexual and male privilege, and that even a radically-reformed marriage or civil union inevitably brings about inequality between those who are partnered and those who are not. All of these arguments are returned to and strengthened in the book as a whole. Chapter 2 turns to the question of what the state is doing when it engages in the act of recognizing marriage. What does marriage mean?