July 04, 2003
The bonds of matrimony

Eve Tushnet is ticked off at Michael Kinsley for saying the state should get out of marriage. Her work at a crisis pregnancy center makes this personal:

Because, see, I spend a lot of time dealing with the fallout from a cultural belief that the marriage license is just a piece of paper. That the important thing is the Relationship, not the Structure--as if those two concepts could somehow be separated, as if some structures do not support love and others weaken it. That everybody should make up his or her own family model. That sex and marriage and childrearing and romantic love are four totally distinct, hermetically sealed concepts. (That's something that really kills me: You'll have sex, knowing full well that you could be making a baby [you know this because it's happened to a lot of your friends...], with a guy you wouldn't marry because you don't want to form a permanent bond with him. Um?) The results of this worldview: chaotic lives, fatherless children, shattered relationships, post-abortion grief, poverty, and fatalism. Welcome to the pursuit of happiness ca. 2003.

I know what she means, but I'm still unclear on how state marriage can do all the things she wants marriage to do. If anything, I've been wondering if state marriage actually gets in the way -- is itself helping reduce marriage to "a piece of paper."

A while ago I commented on The Gutless Pacifist that the arguments people use in favor of sodomy laws actually make a much stronger case for making adultery illegal. In terms of the amount of pain and social disruption it causes, as well as the degree of condemnation it gets in the Bible, adultery is miles ahead of sodomy.

It's occurred to me since I wrote that that the whole "slippery slope" conservatives talk about actually started not with gay rights, Roe vs. Wade or Griswold vs. Connecticut, but the end of adultery laws. Once the state makes clear that adultery isn't its business, it's hard to see how any sexual morality is its business. The right of privacy that the Court found in Griswold, which it then extended in Roe and in Lawrence vs. Texas, is the logical extension of this. So is no-fault divorce: the state basically says it doesn't have to know why you're breaking up, it'll ratify it anyway.

By treating sex as a private thing and marriage as a public thing, the state is increasing the separation between them that Eve so dislikes. Civic marriage is a kind of empty shell that you can fill up with anything you want. It contains people who marry for immigration purposes or for health benefits, open marriages, marriages for money and for convenience, and the whole gamut. This is what makes the case for gay marriage so compelling -- if the state doesn't care if a marriage includes love, fidelity, children, permanence or even cohabitation, why does it give a flip what the genders of the parties are?

I think Eve is right to criticize Kinsley for his airy dismissal of the problems related to children and property rights. It's incumbent on anyone who's advocating the privatization of marriage to explain that. But I also think it's incumbent on those defending marriage laws to explain why, and to what extent, the state should legislate sexual norms. Why should one thing be legal and another not be? Where do we draw the line between setting social standards and allowing people their discretion?

Eve says she'll write about this more later, and maybe she will go into that question. Her essential argument in this post seems to be that we can't slide any farther down this slope. But if our current position on the slope leaves us confused and contradictory, it's natural that some people are going to point out the hypocrisies and wonder why we do it this way. And I have to wonder if the types of problems she sees in the pregancy center aren't really better dealt with in places like that, working from the ground up.

Posted by Camassia at July 04, 2003 03:09 PM | TrackBack

Marriage? Hm. I have to admit that it hasn't worked well for me (2x previously). Then again, my two daughters are well loved and cared for in a two-biological-parent home, because love conquers all, sometimes, thank God.
Now, Jesus... Hm, again. He didn't seem to put much stock in the nuclear family (who are my mother and my brothers?). He clearly didn't have any personal interest in marriage. He wasn't overly upset by sexual transgressions. He saved the woman caught in adultery from stoning. There is no indication that she wasn't guilty: he let her skate and ignored the law.
On the other hand, he came out very strongly against child abuse.
Not the state, nor the church, nor any other collective will ever prevail against the hurt that we do each other, until, if ever, we are all in a state of grace. The best we can do is, like Eve in her work, try to heal the wounds that we open with our lack of love for one another.

Posted by: Rob on July 4, 2003 06:35 PM

State involvement in marriage exists for two reasons: 1.) It offers a lower tax bracket for those who are married (thus they need to keep records); 2.) It protects the weaker partner in these relationships.

I am always suspicious of those who don't want the state involved: it sounds to me like they are trying to get around the divorce and palimony laws. (Deadbeat dads looking for ways to avoid paying for what they have wrought is how I see many anti-marriage advocates.) I support the extension of marriage to gays and lesbians because I feel that everyone is entitled to pick a relative and to be protected from sexual/financial exploitation.

The quality of the relationship depends on the partners involved. I don't deny this. Only you can make a marriage a happy one, but the State can be sure that you don't get screwed by a predatory partner.

It's good to rethink the laws on marriage, but discard them? No.

Posted by: Joel on July 4, 2003 07:42 PM
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