Marriage has been around for five thousand years. Its meaning and purpose have changed during that time, most recently with the increasing acceptance of same-sex marriage. However, in Minimizing Marriage: Marriage, Morality, and the Law, Elizabeth Brake argues that the institution needs more fundamental reform.
“Is there good reason for marriage to be structured as it is—monogamous, central, permanent (or aspiring to permanence), with its dense bundle of legal rights and responsibilities? Is such an arrangement really part of the good life, and should it be privileged in the just society?”
Not only is the institution unjustifiably revered, says Brake, it actively causes harm. Fixing this, she argues, is a matter of justice, and she outlines her proposal for reform.
The case for reform
Marriage presents a particular type of relationship as an ideal: an amorous, exclusive, long-term relationship between two people, where the partners prioritise each other above everything else. Often the individuals must be of the opposite sex.
Brake argues that not only is such a relationship not inherently superior to any other, marriage devalues other relationships by suggesting that it is. Yet despite this, adults who marry are privileged, benefiting from social recognition and rights that are denied to those who are not.
Brake argues that neutrality and political liberalism require that law not be based solely on controversial moral or religious norms, unless they can also be justified by reasons that anyone would accept. Just as the state should not restrict marriage to heterosexual relationships because of the beliefs of some Christians, so it should not restrict it to only two people, to those in an amorous relationship, or to those who only intend their union to be short-term.
Brake argues that at its core, marriage is simply a legal framework designed to promote caring adult relationships. Since such relationships can be fostered by benefits granted by third parties, the principal legal function of marriage is to provide an efficient way to designate another person for the receipt of these benefits.
Just as there is no reason for the state to require that the person receiving such benefits should be of the opposite sex from the person granting them, so there is no reason to require that all benefits be assigned to the same person. Currently, marriage involves a mutual exchange of a pre-defined bundle of rights and responsibilities with only one amatory partner. Frequently, the partners are not even aware of all the rights and responsibilities they are exchanging! Instead, Brake argues that the state should allow people to select from these rights and responsibilities and exchange them with whatever individual or individuals they choose. Moreover, these rights need not be exchanged reciprocally. If I choose to assign familial hospital visiting rights to my friend, my friend does not need to extend those same rights to me. Brake calls her proposal “minimal marriage”.
“The central idea is that individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.”
Brake argues that the state should put no restriction on the nature of these legal relationships, other than they be caring relationships.
Ideally, Brake suggests that the number of entitlements available would be reduced to only those that recognise or support caring relationships. Other rights, such as those providing health care through marriage, would be removed, since the law should not assume dependency between spouses. However, she acknowledges that there may be practical difficulties implementing this, since we do not live an ideal society.
It’s refreshing to read such a thoughtful critique of an institution that so frequently goes unquestioned. Brake forces us to consider what the purpose of marriage actually is, and whether there might be better ways of achieving those goals. For that alone, Minimizing Marriage is an essential read.