The most publicized challenges to current marital privileges have come from the GLBT activists who want those privileges extended to same-sex couples. Their argument is that same-sex marriage is a basic human right. We applaud any expansion of human rights. Yet, as we've watched the debate over this issue unfold over the years, we have had some misgivings about the current approach: It seems too piecemeal. First some couples get admissions tickets to the legal benefits and protections of marriage, then the gates are opened to other kinds of couples. But why should a person have to be part of any kind of couple in order to qualify?
We each recognized that there are others who have made relevant statements challenging the role of government in marriage. When we started comparing notes and puttings our lists together, we were encouraged by the number and diversity of perspectives we found. We've collected 37 of them here. (Further suggestions are welcome.) The people (and groups) we have quoted have cast their arguments in terms of getting beyond marriage or conjugality, or privatizing marriage, or abolishing marriage, or maintaining the separation of church and state. The authors include libertarians, liberals, and conservatives; people from various religious perspectives; gay rights activists and people hostile toward the GLBT community; people taking a marketplace perspective as their starting point and others starting from a concern with basic human dignities and needs.
There are important distinctions in the arguments that have been advanced. For example, some simply suggest replacing marriage with civil unions - civil contracts for all couples. That option, though, would continue to privilege conjugal couples. A more inclusive possibility is to open the civil contract to any two people, whether friends, relatives, or conjugal couples. Again, though, people would qualify for protections only by way of their link to another person (or persons, in some versions). Even broader is an approach that regards every individual as equally deserving of fundamental protections.
Take the Family and Medical Leave Act as an example and consider its relevance to people in the same generation (i.e., setting aside parents and children). If you are seriously ill, your spouse can take time off from work to care for you under the Act. If the conjugal criterion were set aside, then people could also qualify to take leave to care for, say, a sibling or a friend with whom they had a civil contract. With the broader approach, any person could take leave to care for any other person in need (within the usual stipulations, such as the 12 week limit). Within a given workplace, every employee would have the same opportunity to give or receive care under the Act, regardless of their relationship status.
Here are some of the statements we found, arranged under these headings:
I. Statements from formal groups
II. Arguments from book-length discussions
III. Contributions from anthologies
IV. Arguments from academic journals
V. Arguments from religious perspectives
VI. Articles from political publications and other media
VII. A sampling of other arguments online
I. Statements from Formal Groups
Beyond Marriage statement (2006). Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families and Relationships.
Published July 26, 2006
"The struggle for marriage rights should be part of a larger effort to strengthen the stability and security of diverse households and families. [...] Marriage is not the only worthy form of family or relationship, and it should not be legally and economically privileged above all others. A majority of people - whatever their sexual and gender identities - do not live in traditional nuclear families. They stand to gain from alternative forms of household recognition beyond one-size-fits-all marriage."
Law Commission of Canada (2001). Beyond Conjugality: Recognizing and supporting close personal adult relationships.
"Canadians enjoy a wide variety of close personal relationships - many marry or live with conjugal partners while others may share a home with parents, grandparents or a caregiver. The diversity of these relationships is a significant feature of our society, to be valued and respected. For many Canadians, the close personal relationships that they hold dear constitute an important source of comfort and help them to be productive members of society.
The law has not always respected these choices, however, or accorded them full legal recognition. While the law has recently been expanding its recognition beyond marriage to include other marriage-like relationships, it continues to focus its attention on conjugality. The Law Commission believes that governments need to pursue a more comprehensive and principled approach to the legal recognition and support of the full range of close personal relationships among adults. This requires a fundamental rethinking of the way in which governments regulate relationships."
II. Arguments from Book-Length Discussions
Martha Albertson Fineman (1995). The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies. NY: Routledge.
"[...] we should abolish marriage as a legal category and with it any privilege based on sexual affiliation [...] Of course, people would be free to engage in ‘ceremonious' marriage; such an event, however, would have no legal (enforceable in court) consequences. If they didn't execute a separate contract, there would be no imposed terms as now operate in the context of marriage. Any legal consequences would have to be the result of a separate negotiation. Mere agreement to form a live-in sexual relationship would not suffice." (228-229)
Valerie Lehr (1999). Queer Family Values: Debunking the Myth of the Nuclear Family.
Philadelphia: Temple University Press.
"Yet by supporting marriage in order to get material benefits, we fail to ask whether basing benefits on marital status and whether the class bias involved in the current distribution of benefits are fair [...] it is important to remember that all nonmarried people (or more accurately all people without domestic partnership or marriage benefits) subsidize the relationships of married people, or those who receive domestic partner benefits." (31-32)
Example of a recommendation: "[...] rather than asking whether an individual's family status makes her/him eligible for health insurance, we can now ask whether providing health insurance and health care for that individual enhances his/her ability to be a responsible agent within society." (175)
Nancy Polikoff (2008). Beyond (Straight and Gay) Marriage.
Boston, MA: Beacon Press.
Polikoff argues in her book that rather than moving the "bright red dividing line" between married and unmarried, we need to remove it. She provides examples of families that are hurt by the privileging of marriage and how a new legal approach could benefit everybody.
"A law reform agenda that values all LGBT families and relationships, and by extension those of heterosexuals as well, does not start with the package of rights that marriage gives different-sex couples and work down from there [...]. Instead, such an agenda starts by identifying the needs of all LGBT people and works up from there to craft legislative proposals to meet those needs." (209)
Michael Warner (2000). The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life.
Cambridge, MA: Harvard University Press.
Warner documents that the call for "marriage equality" is not an original demand in the queer movement and was taken up only when more conservative forces - who were trying to normalize queerness - became influential within the LGBTQ movement.
"The time is ripe to reconsider the issue. The campaign for marriage, never a broad-based movement among gay and lesbian activists, depended for its success on the courts. It was launched by a relatively small number of lawyers, not by a consensus of activists." (85) "[...] when gay and lesbian organizations did include the expansion of marriage in their vision of change after Stonewall [in the early 1970s], they usually contextualized it as part of more sweeping changes designed to ensure that single people and nonstandard households, and not just same-sex couples, would benefit." (90).
III. Contributions from Anthologies
Dorian Solot and Marshall Miller (2006). "Taking Government Out of the Marriage Business: Families Would Benefit."
In Anita Bernstein (Ed.) Marriage Proposals: Questioning a Legal Status.
"[...] we join those who advance a reasonable thoughtful proposal to abolish marriage as a legal category. As both a personal decision and a public institution, marriage could and most likely would retain all its religious and symbolic significance, but not the legal meaning it has had in the United States in the last few centuries. [...] [T]oday the state acts as a hands-off licensing bureau and divorce granter, making marriage relatively easy to enter and exit, yet maintain legal marital status as a key determinant of eligibility for more than one thousand federal rights and obligations. Cultural lag in family law leaves other kinds of family relationships dangerously ignored and penalized."
Martha Albertson Fineman (2004). "Why marriage?"
In Mary Lyndon Shanley, Joshua Cohen, Deborah Chaseman (Eds.). Just Marriage. NY: Oxford University Press.
"An analysis that perpetuates the primacy of marriage excludes nonmarital relationships [...] the target of state policies should be the caretaker-dependent tie, not that between sexual affiliates. If our concern is with children, the question should not be how we can resuscitate marriage and thus save society and the traditional family, but how we can support all individuals who perform the important societal work of taking care of those who because of their age or physical or mental conditions are dependent upon some form of family." (46 and 50)
Wendy Brown (2004). "After marriage."
In Mary Lyndon Shanley, Joshua Cohen, Deborah Chaseman (Eds.). Just Marriage. NY: Oxford University Press.
"[Locating] the public importance of private unions in marriage not only glosses the reality of marriage today, it occludes emerging ways of living and connecting to others that concretely embody commitment to ‘a shared purpose that transcends the self,' ways that may have little relation to one's sexual life - be it serially monogamous, chaste, or promiscuous. If we are looking for the present and future possibilities of ties and associations that exceed the rationally choosing individual and also embody ambitions for justice, marriage would seem to be the least of these [...]" (91)
Paula L. Ettelbrick (1998). "Since when is marriage a path to liberation?"
In Karen V. Hansen, Anita Ilta Garey (Eds.). Families in the U.S.: Kinship and Domestic Politics. Philadelphia: Temple University Press. (Originally appeared in Out/look: National Gay and Lesbian Quarterly, no. 6, Fall 1989, 9, 14-17.)
"In setting our priorities as a community, we must combine the concept of both rights and justice. At this point in time, making legal marriage for lesbian and gay couples a priority would set an agenda of gaining rights for a few, but would do nothing to correct the power imbalances between those who are married (whether gay or straight) and those who are not. Thus, justice would not be gained." (482)
"[...] gay marriage will not topple the system that allows only the privileged few to obtain decent health care. Nor will it close the privilege gap between those who are married and those who are not." (484)
IV. Arguments from Academic Journals
Michael C. LaSala (2007). "Too many eggs in the wrong basket: A queer critique of the same-sex marriage movement."
In Social Work, 53, 129-132.
From a summary: "The fight for legally recognized same-sex marriage dominates the contemporary gay rights movement and has ignited national debate. However, missing from the current discourse is a critical view of the privileges of marriage. Arguments for legal, same-sex marriage center on the many rights and benefits married heterosexual couples enjoy but from which same-sex couples are excluded. However, lesbian and gay activists and social workers are notably silent on whether it is fair that marriage bestows such privileges. [LaSala presents] a critique of the privilege of marriage from a queer theory perspective and its implications for social action and future directions of the lesbian and gay rights movement."
Elizabeth Brake (2010). "Minimal Marriage: What Political Liberalism Implies for Marriage Law."
In Ethics, 120 (2), 302-337.
From a summary: "As Brake observes in her essay, there are many kinds of caring relationships that adults enter into with many individuals. Some resemble traditional marriages, others are nonexclusive sexual relationship (such as those favored by polyamorists), others are ongoing economic or caretaking relationships between adult family members or friends, others involve sharing a household and finances without necessarily sharing sexual intimacies, and so on and so on. What should a political liberal recommend that the law's relation be to the plurality of possible adult caring relationships?"
Cass R. Sunstein and Richard H. Thaler (2008). "Privatizing Marriage."
In The Monist, 91 (3/4), 377-387.
"The privatization of marriage could take many forms. The most extreme version is signaled by the science-fiction story, in which official marriage does not exist, and government acts solely via ordinary contract law and default rules. A less extreme version would also abolish official marriage, but at the same time recognize the legal status of "civil unions," whose availability and meaning would remain to be decided."
[...] Instead of debating government monopolies and mandates, we should consider allowing people to sort out their private relationships as they see fit, so long as coercion is absent and children are not harmed.
"In an era in which marriage is not a necessary condition either for sex or for children, the state's licensing role has become far less essential.
"Official marriage licenses also have the unfortunate consequence of dividing the world into the status of those who are "married" and those who are "single," in a way that produces serious economic and material disadvantages for the latter (and sometimes for the former).
Claudia Card (1996). "Against Marriage and Motherhood."
In Hypatia: A Journal of Feminist Philosophy, 11 (3), 1-23.
"This essay argues that current advocacy of lesbian and gay rights to legal marriage and parenthood insufficiently criticizes both marriage and motherhood as they are currently practiced and structured by Northern legal institutions. Instead we would do better not to let the State define our intimate unions and parenting would be improved if the power presently concentrated in the hands of one or two guardians were diluted and distributed through an appropriately concerned community."
Claudia Card (2007). "Gay Divorce: Thoughts on the Legal Regulation of Marriage."
In Hypatia: A Journal of Feminist Philosophy, 22 (1), 24-38.
From a summary: "Although the exclusion of LGBTs from the rites and rights of marriage is arbitrary and unjust, the legal institution of marriage is itself so riddled with injustice that it would be better to create alternative forms of durable intimate partnership that do not invoke the power of the state. Card's essay develops a case for this position."
V. Arguments from Religious Perspectives
Louis A. Ruprecht (August 9, 2010). "Jesus Was Single. So, Was the Savior Really a Second-Class Citizen?"
"One of the more striking things about all of the ink that has been spilled over California's now-infamous Proposition 8 (and its long legal aftermath) is the almost reflexive assumption on all sides that marriage, somehow, is a norm-a desirable norm. And so the argument swiftly becomes an argument about normalcy: about who is normal, and about who may be privileged to participate in normalizing social institutions like marriage. [...] Proposition 8 may be unconstitutional not because it discriminates according to sexual categories, but because it discriminates according to marital ones. [...] And so the end result of this long debate-and it will be a long one-may have the unintended consequence of lending a newly aggrieved social group a more public voice: those single or quietly cohabitating persons who are tired of hearing arguments about the legitimacy or the sanctity of marriage [...] [The ultimate result may be] the realization that a secular state cannot justify its continued involvement in the social institution of marriage."
Catholics for Choice
Mary E. Hunt. (2005) "A Marriage Proposal."
In Conscience Magazine, Summer.
"The best proof that the religious right is in charge in the United States lies in the movement for same-sex marriage. Of course the Right opposes it, but by setting up marriage as the main lesbian/gay/bisexual/transgender/ queer (LGBTQ) agenda item, the Right has set itself up to win. This issue, like gays in the military before it, is not necessarily the most important to LGBTQ people ourselves. But the Right's polarizing opposition has made it necessary to struggle for it or lose ground. [...] In fact, what seems to be a huge step forward for lesbian and gay people, will, when achieved, extend the reach of state control over relationships. It will privilege those who are coupled over those who are single or otherwise connected. It will shore up the nuclear family model despite the fact that people live in many other relational constellations."
VI. Articles from Political Publications and Other Media
Lisa Duggan. "What's Right With Utah." The Nation.
July 13, 2009.
"The brilliance of the strategy [in Utah] is its ability to refocus public opinion, put conservative opponents on the defensive, shift public perception of the barriers to LGBT equality and broaden the scope of action to include the needs of people living in nonconjugal households, be they straight, gay or other. [...] Equality Utah organizers repeatedly stress a simple but often overlooked fact: many basic rights and protections for LGBT citizens [...] are not guaranteed by marriage. Housing and employment discrimination, for example, could continue against married or cohabiting couples as well as single people. That point is very well taken in the current political climate, when marriage equality often stands in for all civil equality."
Amanda Marcotte (2009). "For Many, Marriage Is Sexless, Boring and Oppressive: Time to Rethink the Institution?" AlterNet.
July 1, 2009.
"Marriage is failing people as an institution, and it's time to stop trying minor modifications on the side, such as expanding the right to all people or making it easier to divorce, and consider broader changes. We could start by untying all the benefits that lure people into marriage and expanding them to all people -- health insurance, hospital visitation rights, tax breaks -- so that married people don't get special status over the unmarried."
Michael Kinsley. "Abolish Marriage." Slate.
July 2, 2003.
"End the institution of government-sanctioned marriage [...] Privatize marriage [...] Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want. Let each organization decide for itself what kinds of couples it wants to offer marriage to. Let couples celebrate their union in any way they choose and consider themselves married whenever they want. Let others be free to consider them not married, under rules these others may prefer. And, yes, if three people want to get married, or one person wants to marry herself, and someone else wants to conduct a ceremony and declare them married, let ‘em. If you and your government aren't implicated, what do you care?"
David Boaz. "Privatize Marriage." Slate.
April 25, 1997.
"Why should the government be in the business of decreeing who can and cannot be married? [...] why should anyone have - or need to have - state sanction for a private relationship?"
"Make [marriage] a private contract between two individuals [...] Under a privatized system of marriage, courts and governments would recognize any couple's contract - or, better yet, eliminate whatever government-created distinction turned on whether a person was married or not."
""Privatizing" marriage can mean two slightly different things. One is to take the state completely out of it. If couples want to cement their relationship with a ceremony or ritual, they are free to do so. Religious institutions are free to sanction such relationships under any rules they choose. A second meaning of "privatizing" marriage is to treat it like any other contract: The state may be called upon to enforce it, but the parties define the terms. When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties."
"Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms."
Stephanie Coontz. "Taking Marriage Private." New York Times.
November 26, 2007
"Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married."
David Harsanyi. "Time for a Divorce." Real Clear Politics.
August 6, 2010.
"Isn't it about time we freed marriage from the state?"
"Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman -- or no one at all -- and enter into contractual agreements, call their blissful union whatever they felt it should be called and go about the business of their lives."
"[...] mostly I believe your private relationships are none of my business."
VII. A Sampling of Other Arguments Online
Yasmin Nair. "Dump Gay Marriage Now."
July 2, 2009.
"Here's the basic question: why should marriage guarantee any benefits that aren't available to those who don't want to marry?"
"Marriage has, for too long now, been held up as the only solution to a host of problems, including the lack of health care. The fight for gay marriage, in granting that institution so much importance, is slowly eroding the possibility that the rest of the population might get rights and benefits without marrying each other."
Sally Kohn. "Prop 8: Let's get rid of marriage instead!"
August 6, 2010.
"[P]erhaps the next step isn't to, once again, expand the otherwise narrow definition of marriage, but to altogether abolish the false distinction between married families and other equally valid but unrecognized partnerships.
"No, that doesn't mean I want to marry three women at the same time or a goat. It means that I think I should be able to decide what constitutes my family - whether it's me and my same-sex partner and our toddler, or me and my elderly mother and father, or me and my best friend who want to care for and love each other but not necessarily to be intimate. The job of the state is to protect my family and our rights - not decide that two parents plus kids makes a family and everything else is an exception to the rule at best [...]"
"While certainly worth celebrating, the Proposition 8 ruling says that gay people are equal to straight people as long as they act like straight people. But the fundamental right to be treated equally, even if you are and act different, remains beyond reach."
Nadia Berenstein. "Equality, Without Marriage?" Ms. Magazine Blog.
August 27, 2010
[...] So instead of erasing boundaries, a single-minded focus on marriage equality for same-sex couples may run the risk of re-inscribing the lines and perpetuating inequity."
Amy Sueyoshi. "Inequality in the Marriage Equality Movement." National Sexuality Resource Center Blog.
June 29. 2009
"The marriage movement's single-minded determination for "equality for all" has forgotten that many more queers suffer at the hands of more urgent inequalities. These inequalities may seem "special interest" or not relevant for a "larger" community, but this could be nothing further from the truth. [...] Marriage may not be the answer to our most pressing social ills."
Martha Ackelsberg and Judith Plaskow. "Why We're Not Getting Married." CommonDreams.org.
June 1, 2004
"[...] focusing on the right to marry perpetuates the idea that these rights ought to be linked to marriage. Were we to marry, we would be contributing to the perpetuation of a norm of coupledness in our society. The norm marginalizes those who are single, single-parents, widowed, divorced or otherwise living in non-traditional constellations. [...] Seeking expanded benefits through marriage also contributes to what amounts to the increasing privatization of responsibility of caring for children, the elderly, the ill and disabled."
"[...] At this moment, when there is so much focus on celebrating the right to marry, we want to hold up a vision of a society in which basic rights are not tied to marriage, and which there are many ways to organize one's intimate life, marriage being only one of them."
Wendy McElroy. "It's Time to Privatize Marriage."
July 16, 2002
"Marriage should be privatized. Let people make their own marriage contracts according to their conscience, religion and common sense. Those contracts could be registered with the state, recognized as legal and arbitrated by the courts, but the terms would be determined by those involved."
"My definition: A legal marriage is whatever contract for a committed relationship is agreed to by those involved."
Wendy McElroy. "The Gay and Hetero Marriage Quagmire."
June 29, 2009
"The current debate over gay marriage is a power play at the highest levels of government and the judiciary to control what should be the most personal matter between human beings: marriage."
"To save its soul, marriage needs to be removed from power politics and privatized."
"The only ‘entitlement' that should accompany marriage is the enforcement of the terms of that contract."
Gardner Goldsmith. "Don't Let Government Define Marriage (Or Optimal Child-Rearing Environments)."
June 22, 2006
"First, we must deal with the popular misconception that a state-sanctioned marriage is a ‘right.' A state-sanctioned marriage is a government-proffered benefit, granting unique government treatment by law, and forcing certain actions by private industry under the law [...].
"It seems strange that any religious person would feel comfortable insinuating agents of the government in a holy ceremony, and leaving the definition of the word ‘marriage' in the hands of the government itself. Conservatives used to have a reputation for being skeptical of government."
Colin PA Jones. "Marriage Proposal: Why Not Privatize? Partnerships Could Be Tailored to Fit."
January 22, 2006
"A fundamental problem with marriage is that it only comes in one size. As a legal relationship, matrimony is a monopoly product supplied by the government. At the same time, however, as a personal relationship, the institution has unique, personal importance to those who partake of it. To some it even has deeply felt religious significance. Thus, there is a mismatch between what is demanded of marriage and what is supplied. [...] As with many things in life, a free-market solution that offers people choice may provide a solution."
Welcome to PrivatizeMarriage.org!
"What we hold is that, essentially, government has no place in marriage in the first place - therefore the entire debate about whether or not to give marriage licenses to gay people is moot. We believe that marriage is a private, personal, and often religious union between human beings - that it is a social state defined by society, as it has been for thousands of years. It is NOT something that government should be able to dictate over at all - just like church attendance, consensual sexual relations, and many other private matters."
Ryan McMaken. "Married to the State." LewRockwell.com
July 14, 2003
"The question we are then left with today is one of whether the churches and individuals should be looking to privatize marriage yet again and to begin making a distinction between secular contracts between private citizens and religious unions that should be kept beyond the power of the State."
Dean Spade & Craig Willse. "I Still Think Marriage is the Wrong Goal" (online statement)
"Current conversations about Prop 8 hide how the same-sex marriage battle has been part of a conservative gay politics that de-prioritizes people of color, poor people, trans people, women, immigrants, prisoners and people with disabilities. [...] Let's remember the politics of marriage itself. The simplistic formula that claims "you're either pro-marriage or against equality" makes us forget that all forms of marriage perpetuate gender, racial and economic inequality. It mistakenly assumes that support for marriage is the only good measure of support for LGBT communities. This political moment calls for anti-homophobic politics that centralize anti-racism and anti-poverty."
Adam Summers. "Outing Government from Marriage. Privatizing marriage would be best for all sides of debate."
November 11, 2005
"The decision to enter into marriage is a profoundly personal one that should not be infringed by those who are not party to the decision. In a free society, one must have the freedom to make such decisions - and act upon them - without the interference of government or other unaffected parties."
"By conferring special benefits on married couples, and then defining a legal union as between a man and a woman in the 1996 Defense of Marriage Act, the federal government has politicized a private issue. State and local governments have likewise encroached upon the ability to marry by offering benefits to straight couples and imposing licensing requirements to show proof of eligibility for the goodies."
"By politicizing a private matter - deciding to whom one may promise his or her love, support, and fidelity - politicians (and those who endorse the marriage laws they have passed) have created a world of winners and losers where once there were only voluntary covenants."
Bob Ostertag. "Why Gay Marriage Is the Wrong Issue."
December 21, 2008
"Yes, married people get special privileges denied to others. Denied not just to gays and lesbians, but to all others. Millions of straight people remain unmarried, and for a huge variety of reasons, from mothers whose support networks do not include their children's fathers, to hipsters who can't relate to religious institutions. We could be making common cause with them. We could be fighting for equal rights for everyone, not just gays and lesbians, but for all unmarried people. In the process we would leave religious institutions to define marriage however their members see fit."
Dean Spade. "Love Story." Xtranormal Video.
August 13, 2010
Video critical of marriage as an institution with statements including: "I want a world where romantic relationships are not privileged over other kinds of friendships [...]" "[...] If we want equality we should get rid of marriage and make it that no one should have their immigration status, health care access or parenthood depend on being married."
[Note: We thank Christian Miller and Nicky Grist for providing some suggestions for this list.]