## 1. Defining Marriage



'Marriage' can refer to a legal contract and civil status,
a religious rite, and a social practice, all of which vary by legal
jurisdiction, religious doctrine, and culture. History shows
considerable variation in marital practices: polygyny has been widely
practiced, some societies have approved of extra-marital sex and,
arguably, recognized same-sex marriages, and religious or civil
officiation has not always been the norm (Boswell 1994; Mohr 2005, 62;
Coontz 2006). More fundamentally, while the contemporary Western ideal
of marriage involves a relationship of love, friendship, or
companionship, marriage historically functioned primarily as an
economic and political unit used to create kinship bonds, control
inheritance, and share resources and labor. Indeed, some ancients and
medievals discouraged 'excessive' love in marriage. The
Western 'love revolution' in marriage dates popularly to
the 18th century (Coontz 2006, Part 3). The understanding
of marriage as grounded in individual choice and romantic love
reflects historically and culturally situated beliefs and practices.
Most notably, the aspect of consent or voluntary entry - often taken
to be crucial to marriage (Cott 2000) - is challenged where practices
of forced or child marriage are prevalent (Narayan 1997; Bhandary
2018). Arranged marriage, which is compatible with the consent of the
spouses, prioritizes caregiving and economic aspects of the
institution over romantic love (Bhandary 2018).



The global variety of marriage practices and law is difficult to
encapsulate: notable variations in law include recognition of same-sex
marriage, polygamy, and 'common-law' marriage,
restrictions on marriages between members of the same family or of
different social castes, the existence of civil marriage, practices of
arranged, forced, or child marriage, and women's rights within
marriage (see Moses 2018 for an entry into the literature on these
differences), as well as cultural and religious practices of temporary
marriage (Shrage 2013, Nolan 2016) or polyamorous marriage (Brake
2018). Religious, cultural, and philosophical traditions also shape
ideals of marriage. For instance, Xiaorong Li writes that
"Confucian ideals of family, society, and women's
role" influence expectations of marriage in China (Li 1995,
413). However, scholarship on such differences must be careful to
avoid misrepresentation (see for example discussion of misleading
Western accounts of 'sati' and dowry-murder in India in
Narayan 1997).



Ethical and political questions regarding marriage are sometimes
answered by appeal to the definition of marriage. But the historical
and cultural variation in marital practices has prompted some
philosophers to argue that marriage is a 'family
resemblance' concept, with no essential purpose or structure
(Wasserstrom 1974; see also the interesting discussion of whether the
many different practices identified by anthropologists as marriage
should be counted as marriages in Nolan, forthcoming). If marriage has
no essential features, then one cannot appeal to definition to justify
particular legal or moral obligations. For instance, if monogamy is
not an essential feature of marriage, then one cannot appeal to the
definition of marriage to justify a requirement that legal marriage be
monogamous. To a certain extent, the point that actual legal or social
definitions cannot settle the question of what features marriage
should have is just. First, past applications of a term need not yield
necessary and sufficient criteria for applying it:
'marriage' (like 'citizen') may be extended to
new cases without thereby changing its meaning (Mercier 2001). Second,
appeal to definition may be uninformative: for example, legal
definitions are sometimes circular, defining marriage in terms of
spouses and spouses in terms of marriage (Mohr 2005, 57). Third,
appeal to an existing definition in the context of debate over what
the law of marriage, or its moral obligations, should be risks begging
the question: in debate over same-sex marriage, for example, appeal to
the current legal definition begs the normative question of what the
law should be. However, this point also tells against the argument for
the family resemblance view of marriage, as the variation of marital
forms in practice does not preclude the existence of a normatively
ideal form. Thus, philosophers who defend an essentialist definition
of marriage offer normative definitions, which appeal to fundamental
ethical or political principles. Defining marriage must depend on,
rather than precede, ethical and political inquiry.


## 2. Understanding Marriage: Historical Orientation



Setting the agenda for contemporary debate, ancient and medieval
philosophers raised recurring themes in the philosophy of marriage:
the relation between marriage and the state, the role of sex and
procreation in marriage, and the gendered nature of spousal roles.
Their works reflect evolving, and overlapping, ideas of marriage as an
economic or procreative unit, a religious sacrament, a contractual
association, and a relationship of mutual support.



In his depiction of the ideal state, Plato (427-347 BCE)
described a form of marriage contrasting greatly with actual marriage
practices of his time. He argued that, just as male and female
watchdogs perform the same duties, men and women should work together,
and, among Guardians, 'wives and children [should be held] in
common' (*The Republic*, ca. 375-370 BCE,
423e-424a). To orchestrate eugenic breeding, temporary marriages
would be made at festivals, where matches, apparently chosen by lot,
would be secretly arranged by the Rulers. Resulting offspring would be
taken from biological parents and reared anonymously in nurseries.
Plato's reason for this radical restructuring of marriage was to
extend family sympathies from the nuclear family to the state itself:
the abolition of the private family was intended to discourage private
interests at odds with the common good and the strength of the state
(*ibid*., 449a-466d; in Plato's *Laws*, ca.
355-47 BCE, private marriage is retained but still designed for
public benefit).



Aristotle (384-322 BCE) sharply criticized this proposal as
unworkable. On his view, Plato errs in assuming that the natural love
for one's own family can be transferred to all fellow-citizens.
The state arises from component parts, beginning with the natural
procreative union of male and female. It is thus a state of families
rather than a family state, and its dependence on the functioning of
individual households makes marriage essential to political theory
(*Politics*, 1264b). The Aristotelian idea that the stability
of society depends on the marital family influenced Hegel, Rawls, and
Sandel, among others. Aristotle also disagreed with Plato on gender
roles in marriage, and these views too would prove influential.
Marriage, he argued, is properly structured by gender: the husband,
"fitter for command," rules. The sexes express their
excellences differently: "the courage of a man is shown in
commanding, of a woman in obeying," a complementarity which
promotes the marital good (*Politics*, ca. 330 BCE, 1253b,
1259b, 1260a; *Nicomachean Ethics*, ca. 325 BCE,
1160-62).



In contrast to the ancients, whose philosophical discussion of sex and
sexual love was not confined to marriage, Christian philosophers
introduced a new focus on marriage as the sole permissible context for
sex, marking a shift from viewing marriage as primarily a political
and economic unit. St. Augustine (354-430), following St. Paul,
condemns sex outside marriage and lust within it. "[A]bstinence
from all sexual union is better even than marital intercourse
performed for the sake of procreating," and the unmarried state
is best of all (*The Excellence of Marriage*, ca. 401, SS6,
13/15). But marriage is justified by its goods: "children,
fidelity [between spouses], and sacrament." Although procreation
is the purpose of marriage, marriage does not morally rehabilitate
lust. Instead, the reason for the individual marital sexual act
determines its permissibility. Sex for the sake of procreation is not
sinful, and sex within marriage solely to satisfy lust is a pardonable
(venial) sin. As marital sex is preferable to
"fornication" (extra-marital sex), spouses owe the
"marriage debt" (sex) to protect against temptation,
thereby sustaining mutual fidelity (*Marriage and Desire*, Book
I, ca. 418-19, SS7, 8, 17/19, 14/16).



St. Thomas Aquinas (ca. 1225-1274) grounded concurring judgments
about sexual morality in natural law, explicating marriage in terms of
basic human goods, including procreation and fidelity between spouses
(Finnis 1997). Monogamous marriage, as the arrangement fit for the
rearing of children, "belong[s] to the natural law."
Monogamous marriage secures paternal guidance, which a child needs;
fornication is thus a mortal sin because it "tends to injure the
life of the offspring." (Aquinas rejects polygamy on similar
grounds while, like Augustine, arguing that it was once permitted to
populate the earth.) Marital sex employs the body for its purpose of
preserving the species, and pleasure may be a divinely ordained part
of this. Even within marriage, sex is morally troubling because it
involves "a loss of reason," but this is compensated by
the goods of marriage (*Summa Theologiae*, unfinished at
Aquinas' death, II-II, 153, 2; 154, 2). Among these goods,
Aquinas emphasizes the mutual fidelity of the spouses, including
payment of the "marriage debt" and "partnership of a
common life"--a step towards ideas of companionate marriage
(*Summa Theologiae,* Supp. 49, 1).



Indeed, we see indications of discontent with the economic model of
marriage a century earlier in the letters of Heloise (ca.
1100-1163) to Abelard (1079-1142). Heloise
attacks marriage, understood as an economic transaction, arguing that
a woman marrying for money or position deserves "wages, not
gratitude" and would "prostitute herself to a richer man,
if she could." In place of this economic relation she praises
love, understood on a Ciceronian model of friendship: the "name
of wife may seem more sacred or more binding, but sweeter for me will
always be the word friend (*amica*), or, if you will permit me,
that of concubine or whore" (Abelard and Heloise,
*Letters*, ca. 1133-1138, 51-2). The relation
between love and marriage will continue to preoccupy later
philosophers. Do marital obligations and economic incentives threaten
love, as Heloise suggested? (Cave 2003, Card 1996) As
Soren Kierkegaard (1813-1855) dramatically suggests in
*The Seducer's Diary*, are the obligations of marriage
incompatible with romantic and erotic love? Or, instead, does marital
commitment uniquely enable spousal love, as Aquinas suggested? (Finnis
1997; cf. Kierkegaard's Judge William's defense of
marriage [*Either/Or*, 1843, vol. 2].)



Questions of the relation between love and marriage emerge from
changing understandings of the role of marriage; in the early modern
era, further fault lines appear as new understandings of human society
conflict with the traditional structure of marriage. For Aristotle,
Augustine, and Aquinas, marriage was unproblematically structured by
sexual difference, and its distinctive features explained by nature or
sacrament. But in the early modern era, as doctrines of equal rights
and contract appeared, a new ideal of relationships between adults as
free choices between equals appeared. In this light, the unequal and
unchosen content of the marriage relationship raised philosophical
problems. Thomas Hobbes (1588-1679) acknowledged that his
arguments for rough equality among humans apply to women:
"whereas some have attributed the dominion [over children] to
the man only, as being of the more excellent sex; they misreckon in
it. For there is not always that difference of strength, or prudence
between the man and the woman, as that the right can be determined
without war." Nonetheless, Hobbes admits that men dominate in
marriage, which he explains (inadequately) thus: "for the most
part commonwealths have been erected by the fathers, not by the
mothers of families" (*Leviathan*, 1651, Ch. 20; Okin
1979, 198-199, Pateman 1988, 44-50).



Likewise, defending marital hierarchy posed a problem for John Locke
(1632-1704). Locke ties his rejection of political patriarchy to
a rejection of the patriarchal family, arguing that marriage, like the
state, rests on consent, not natural hierarchy; marriage is a
"voluntary compact." But Locke fails to follow this
reasoning consistently, for Lockean marriage remains hierarchical: in
cases of conflict, "the rule ... naturally falls to the
man's as the abler and stronger." Ceding decision-making
power to one party on the basis of a presumed natural hierarchy
creates an internal tension in Locke's views (*The Second
Treatise of Government*, 1690, SS77, 81, 82; Okin 1979,
199-200). This inconsistency prompted Mary Astell's
(1666-1731) response: "If *all Men are born free*,
how is it that all women are born slaves? as they must be if the being
subjected to the *inconstant, uncertain, unknown, arbitrary
Will* of Men, be the *perfect Condition of Slavery*?"
("Reflections upon Marriage," 1700, 18) Similar tensions
arise for Jean-Jacques Rousseau (1712-1778), whose treatise on
education, *Emile*, describes the unequal status of
Emile's wife, Sophie. Her education, a template for all
women's, prepares her only to please and serve her husband and
rear children. Mary Wollstonecraft (1759-1798) attacked
Rousseau's views on women's nature, education, and marital
inequality in *A Vindication of the Rights of Woman* (see also
Okin 1979, Chapter 6).



The contractual understanding of marriage prompts the question as to
why marital obligations should be fixed other than by spousal
agreement. Immanuel Kant (1724-1804) combined a contractual
account of marriage with an Augustinian preoccupation with sexual
morality to argue that the distinctive content of the marriage
contract was required to make sex permissible. In Kant's view,
sex involves morally problematic objectification, or treatment of
oneself and other as a mere means. The marriage right, a "right
to a person akin to a right to a thing," gives spouses
"lifelong possession of each other's sexual
attributes," a transaction supposed to render sex compatible
with respect for humanity: "while one person is acquired by the
other *as if it were a thing*, the one who is acquired acquires
the other in turn; for in this way each reclaims itself and restores
its personality." But while these rights, according to Kant,
make sex compatible with justice, married sex is not clearly virtuous
unless procreation is a possibility (*Metaphysics of Morals*,
1797-98, Ak 6:277-79, 6:424-427). Kant's
account of sexual objectification has had wide influence--from
feminists to new natural lawyers. More surprisingly, given his views
on gender inequality and the wrongness of same-sex sexual activity,
Kant's account of marriage has been sympathetically
reconstructed by feminists and defenders of same-sex marriage drawn by
Kant's focus on equality, reciprocity, and the moral
rehabilitation of sex within marriage (Herman 1993, Altman 2010,
Papadaki 2010). Kant interestingly suggests that morally problematic
relationships can be reconstructed through equal juridical rights, but
how such reconstruction occurs is puzzling (Herman 1993, Brake 2005).
Among other things, it is difficult to see how Kant's insistence
on equal marriage rights can be reconciled with his views on gender
inequality (Sticker 2020).



Characteristically, G. W. F. Hegel's (1770-1831) account
of marriage synthesizes the preceding themes. Hegel returns to
Aristotle's understanding of (nuclear) marriage as the
foundation of a healthy state, while explicating its contribution in
terms of spousal love. Hegel criticized Kant's reduction of
marriage to contract as "disgraceful" because spouses
begin "from the point of view of contract--i.e. that of
individual personality as a self-sufficient unit--*in order to
supersede it*." They "consent *to constitute a
single person* and to give up their natural and individual
personalities within this union." The essence of marriage is
ethical love, "the consciousness of this union as a substantial
end, and hence in love, trust, and the sharing of the whole of
individual existence." Ethical love is not, like sexual love,
contingent: "Marriage should not be disrupted by passion, for
the latter is subordinate to it" (*Elements of the Philosophy
of Right*, 1821, SS162-63, 163A).



Like his predecessors, Hegel must justify the distinctive features of
marriage, and in particular, why, if it is the ethical love
relationship which is ethically significant, formal marriage is
necessary. Hegel's contemporary Friedrich von Schlegel had
argued that love can exist outside marriage--a point which Hegel
denounced as the argument of a seducer! For Hegel, ethical love
depends on publicly assuming spousal roles which define individuals as
members in a larger unit. Such unselfish membership links marriage and
the state. Marriage plays an important role in Hegel's system of
right, which culminates in ethical life, the customs and institutions
of society: family, civil society, and the state. The role of marriage
is to prepare men to relate to other citizens as sharers in a common
enterprise. In taking family relationships as conditions for good
citizenship, Hegel follows Aristotle and influences Rawls and Sandel;
it is also notable that he takes marriage as a microcosm of the
state.



Kant and Hegel attempted to show that the distinctive features of
marriage could be explained and justified by foundational normative
principles. In contrast, early feminists argued that marital hierarchy
was simply an unjust remnant of a pre-modern era. John Stuart Mill
(1806-1873) argued that women's subordination within
marriage originated in physical force--an anomalous holdover of
the 'law of the strongest'. Like Wollstonecraft in her
1792 *A Vindication of the Rights of Woman*, Mill compared
marriage and slavery: under coverture wives had no legal rights,
little remedy for abuse, and, worse, were required to live in intimacy
with their 'masters'. This example of an inequality based
on force had persisted so long, Mill argued, because all men had an
interest in retaining it. Mill challenged the contractual view that
entry into marriage was fully voluntary for women, pointing out that
their options were so limited that marriage was "only
Hobson's choice, 'that or none'" (*The
Subjection of Women*, 1869, 29). He also challenged the view that
women's nature justified marital inequality: in light of
different socialization of girls and boys, there was no way to tell
what woman's nature really was. Like Wollstonecraft, Mill
described the ideal marital relationship as one of equal friendship
(Abbey and Den Uyl, 2001). Such marriages would be "schools of
justice" for children, teaching them to treat others as equals.
But marital inequality was a school of injustice, teaching boys
unearned privilege and corrupting future citizens. The comparison of
marriage with slavery has been taken up by more recent feminists
(Cronan 1973), as has the argument that marital injustice creates
unjust citizens (Okin 1994).



Marxists also saw marriage as originating in ancient exercises of
force and as continuing to contribute to the exploitation of women.
Friedrich Engels (1820-1895) argued that monogamous marriage
issued from a "*world historical defeat of the female
sex*" (Engels 1884, 120). Exclusive monogamy "was not
in any way the fruit of individual sex love, with which it had nothing
whatever to do ... [but was based on] economic
conditions--on the victory of private property over primitive,
natural communal property" (*ibid*., 128). Monogamy
allowed men to control women and reproduction, thereby facilitating
the intergenerational transfer of private property by producing
undisputed heirs. Karl Marx (1818-83) argued that abolishing the
private family would liberate women from male ownership, ending their
status "as mere instruments of production" (*The
Communist Manifesto*, Marx 1848, 173). The Marxist linking of
patriarchy and capitalism, in particular its understanding of marriage
as an ownership relation ideologically underpinning the capitalist
order, has been especially influential in feminist thought (Pateman
1988, cf. McMurtry 1972).


## 3. Marriage and Morals



The idea that marriage has a special moral status and entails fixed
moral obligations is widespread--and philosophically
controversial. Marriage is a legal contract, although an anomalous one
(see 4.1); as the idea of it as a contract has taken hold, questions
have arisen as to how far its obligations should be subject to
individual choice. The contractual view of marriage implies that
spouses can choose marital obligations to suit their interests.
However, to some, the value of marriage consists precisely in the
limitations it sets on individual choice in the service of a greater
good: thus, Hegel commented that arranged marriage is the most ethical
form of marriage because it subordinates personal choice to the
institution. The institutional view holds that the purpose of the
institution defines its obligations, taking precedence over
spouses' desires, either in the service of a procreative union
or to protect spousal love, in the two most prominent forms of this
view. These theories have implications for the moral status of
extra-marital sex and divorce, as well as the purpose of marriage.


### 3.1 Contractual Views



On the contractual view, the moral terms and obligations of marriage
are understood as promises between spouses. Their content is supplied
by surrounding social and legal practices, but their promissory nature
implies that parties to the promise can negotiate the terms and
release each other from marital obligations.



One rationale for treating marital obligations as such promises might
be thought to be the voluntaristic account of obligation. On this
view, all special obligations (as opposed to general duties) are the
result of voluntary undertakings; promises are then the paradigm of
special obligations (see entry on Special Obligations). Thus, whatever
special obligations spouses have to one another must originate in
voluntary agreement, best understood as promise. We will return to
this below. A second rationale is the assumption that existing
marriage practices are morally arbitrary, in the sense that there is
no special moral reason for their structure. Further, there are
diverse social understandings of marriage. If the choice between them
is morally arbitrary, there is no moral reason for spouses to adopt
one specific set of marital obligations; it is up to spouses to choose
their terms. Thus, the contractual account depends upon the assumption
that there is no decisive moral reason for a particular marital
structure.



On the contractual account, not just any contracts count as marriages.
The default content of marital promises is supplied by social and
legal practice: sexual exclusivity, staying married, and so on. But it
entails that spouses may release one another from these moral
obligations. For example, extra-marital sex has often been construed
as morally wrong by virtue of promise-breaking: if spouses promise
sexual exclusivity, extra-marital sex breaks a promise and is thereby
*prima facie* wrong. However, if marital obligations are simply
promises between the spouses, then the parties can release one
another, making consensual extra-marital sex permissible (Wasserstrom
1974). Marriage is also sometimes taken to involve a promise to stay
married. This seems to make unilateral divorce morally problematic, as
promisors cannot release themselves from promissory obligations (Morse
2006). But standard conditions for overriding promissory obligations,
such as conflict with more stringent moral duties, inability to
perform, or default by the other party to a reciprocal promise would
permit at least some unilateral divorces (Houlgate 2005, Chapter 12).
Some theorists of marriage have suggested that marital promises are
conditional on enduring love or fulfilling sex (Marquis 2005, Moller
2003). But this assumption is at odds with the normal assumption that
promissory conditions are to be stated explicitly.



Release from the marriage promise is not the only condition for
permissible divorce on the contractual view. Spouses may not be
obligated to one another to stay married--but they may have
parental duties to do so: if divorce causes avoidable harm to
children, it is *prima facie* wrong (Houlgate 2005, Chapter 12,
Russell 1929, Chapter 16). However, in some cases divorce will benefit
the child--as when it is the means to escape abuse. A vast
empirical literature disputes the likely effects of divorce on
children (Galston 1991, 283-288, Young 1995). What is notable
here, philosophically, is that this moral reason against divorce is
not conceived as a spousal, but a parental, duty.



Marriage is widely taken to have an amatory core, suggesting that a
further marital promise is a promise to love, as expressed in wedding
vows 'to love and cherish'. But the possibility of such
promises has met with skepticism. If one cannot control whether one
loves, the maxim that 'ought implies can' entails that one
cannot promise to love. One line of response has been to suggest that
marriage involves a promise not to feel but to behave a certain
way--to act in ways likely to sustain the relationship. But such
reinterpretations of the marital promise face a problem: promises
depend on what promisors intend to promise--and presumably most
spouses do not intend to promise mere behavior (Martin 1993, Landau
2004, Wilson 1989, Mendus 1984, Brake 2012, Chapter 1; see also
Kronqvist 2011). However, developing neuroenhancement technology
promises to bring love under control through "love drugs"
which would produce bonding hormones such as oxytocin. While the use
of neuroenhancement to keep one's vows raises questions about
authenticity and the nature of love (as well as concerns regarding its
use in abusive relationships), it is difficult to see how such
technology morally differs from other love-sustaining devices such as
romantic dinners--except that it is more likely to be effective
(Savulescu and Sandberg 2008).



One objection to the contractual account is that, without appeal to
the purpose of the institution, there is no reason why not just any
set of promises count as marriage (Finnis 2008). The objection
continues that the contractual account cannot explain the point of
marriage. Some marriage contractualists accept this implication.
According to the "bachelor's argument," marriage is
irrational: chances of a strongly dis-preferred outcome (a loveless
marriage) are too high (Moller 2003). Defenders of the rationality of
marriage have replied that marital obligations are rational because
they help agents to secure their long-term interests in the face of
passing desires (Landau 2004). From the institutional perspective,
evaluating the rationality of marriage thus, in terms of fulfilling
subjective preferences, clashes with the tradition of viewing it as
uniquely enabling certain objective human goods; however, a positive
case must be made for the latter view.



Another objection to the contractual view concerns voluntarism.
Critics of the voluntarist approach to the family deny that family
morality is exhausted by voluntary obligations (Sommers 1989).
Voluntarist conceptions of the family conflict with common-sense
intuitions that there are unchosen special duties between family
members, such as filial duties. However, even if voluntarism is false,
this does not suffice to establish special spousal duties. On the
other hand, voluntarism alone does not entail the contractual view,
for it does not entail that spouses can negotiate the obligations of
marriage or that the obligations be subject to release, only that
spouses must agree to them. Voluntarism, in other words, need not
extend to the choice of marital obligations and hence need not entail
the contractual account. The contractual account depends on denying
that there is decisive moral reason for marriage to incorporate
certain fixed obligations. Let us turn to the case that there is such
reason.


### 3.2 Institutional Views



The main theoretical alternatives to the contractual view hold that
marital obligations are defined by the purpose of the institution and
that spouses cannot alter these institutional obligations (much like
the professional moral obligations of a doctor; to become a doctor,
one must voluntarily accept the role and its obligations, and one
cannot negotiate the content of these obligations). The challenge for
institutional views is to defend such a view of marriage, explaining
why spouses may not jointly agree to alter obligations associated with
marriage. Kant confronted this question, arguing that special marital
rights were morally necessary for permissible sex. His account of
sexual objectification has influenced a prominent contemporary rival
to the contractual view--the new natural law view, which takes
procreation as essential to marriage. A second widespread approach
focuses solely on love as the defining purpose of marriage.


#### 3.2.1 New Natural Law: Marriage as Procreative Union



Like Kant, the new natural law account of marriage focuses on the
permissible exercise of sexual attributes; following Aquinas, it
emphasizes the goods of marriage, which new natural lawyers, notably
John Finnis (cf. George 2000, Grisez 1993, Lee 2008), identify as
reproduction and *fides*--roughly, marital friendship (see
entry on The Natural Law Tradition in Ethics). Marriage is here taken
to be the institution uniquely apt for conceiving and rearing children
by securing the participation of both parents in an ongoing union. The
thought is that there is a distinctive marital good related to sexual
capacities, consisting in procreation and *fides*, and
realizable only in marriage. Within marriage, sex may be engaged in
for the sake of the marital good. Marital sex need not result in
conception to be permissible; it is enough that it is open towards
procreation and expresses *fides*. The view does not entail
that it is wrong to take pleasure in sex, for this can be part of the
marital good.



However, sex outside marriage (as defined here) cannot be orientated
toward the marital good. Furthermore, sexual activity not orientated
toward this good--including same-sex activity, masturbation,
contracepted sex, sex without marital commitment (even within legal
marriage)--is valueless; it does not instantiate any basic good.
Furthermore, such activity is impermissible because it violates the
basic good of marriage. Marital sex is thought to instantiate the good
of marriage. By contrast, non-marital sex is thought to treat sexual
capacities instrumentally--using them merely for pleasure. (It is
here that the account is influenced by Kant.) Non-marital sex violates
the good of marriage by treating sexual capacities in a way contrary
to that good. Furthermore, for an agent merely to condone non-marital
sex damages his or her relation to the marital good, for even a
hypothetical willingness to treat sex instrumentally precludes proper
marital commitment (Finnis 1997, 120).



As Finnis emphasizes, one feature of the new natural law account of
marriage is that the structure of marriage can be fully explained by
its purpose. Marriage is between one man and one woman because this is
the unit able to procreate without third-party assistance; permanence
is required to give children a lifelong family. Finnis charges, as
noted above, that accounts which do not ground marriage in this
purpose have no theoretical reason to resist the extension of marriage
to polygamy, incest, and bestiality (Finnis 1995). As all non-marital
sex fails to instantiate basic goods, there is no way morally to
distinguish these different relations.



A further point concerns law: to guide citizens' judgments and
choices towards the relationship in which they can uniquely achieve
the marital good, the state should endorse marriage, as understood on
this view, and not recognize same-sex relationships as marriages.
However, it might be asked whether this is an effective way to guide
choice, and whether state resources might be better spent promoting
other basic human goods. Moreover, as the argument equally implies a
state interest in discouraging contraception, divorce, and
extra-marital sex, the focus on same-sex marriage appears arbitrary
(Garrett 2008, Macedo 1995). This objection is a specific instance of
a more general objection: this account treats sex and the marital good
differently than it does the other basic human goods. Not only is less
attention paid to promoting those goods legally (and discouraging
behavior contrary to them), but the moral principle forbidding action
contrary to basic human goods is not consistently applied
elsewhere--for example, to eating unhealthily (Garrett 2008).



A second objection attacks the claim that non-marital sex cannot
instantiate any basic human goods. This implausibly consigns all
non-marital sex (including all contracepted sex) to the same value as
anonymous sex, prostitution, or masturbation (Macedo 1995, 282).
Plausibly, non-marital sex can instantiate goods such as
"pleasure, communication, emotional growth, personal stability,
long-term fulfillment" (Corvino 2005, 512), or other basic human
goods identified by the new natural law account, such as knowledge,
play, and friendship (Garrett 2008; see also Blankschaen 2020).



A third objection is related. The view seems to involve a double
standard in permitting infertile opposite-sex couples to marry
(Corvino 2005; Macedo 1995). The new natural lawyers have responded
that penile-vaginal sex is reproductive in type, even if not in
effect, while same-sex activity can never be reproductive in type
(Finnis 1997, cf. George 2000, Lee 2008). Reproductive-type sex can be
oriented towards procreation even if not procreative in effect. But it
is unclear how individuals who know themselves to be infertile can
have sex for the reason of procreation (Macedo 1995, Buccola 2005).
Ultimately, to differentiate infertile heterosexual couples from
same-sex couples, new natural lawyers invoke complementarity between
men and women as partners and parents. Thus, the defense of this
account of marriage turns on a controversial view of the nature and
importance of sexual difference (Finnis 1997, Lee 2008).



A related, influential argument focuses on the definition of marriage.
This argues that marriage is necessarily between one man and one woman
because it involves a comprehensive union between spouses, a unity of
lives, minds, and bodies. Organic bodily union requires being united
for a biological purpose, in a procreative-type act (Girgis, et al.,
2010). Like the new natural law arguments, this has raised questions
as to why only, and all, different-sex couples, even infertile ones,
can partake in procreative-type acts, and why bodily union has special
significance (Arroyo 2018, Johnson 2013).



While much discussion of new natural law accounts of marriage
oscillates between attacking and defending the basis in biological sex
difference, some theorists sympathetic to new natural law attempt to
avoid the Scylla of rigid biological restrictions and the Charybdis of
liberal "plasticity" regarding marriage (Goldstein 2011).
Goldstein, for one, offers an account of marriage as a project
generated by the basic good of friendship; while this project includes
procreation as a core feature, the institution of marriage has, on
this account, a compensatory power, meaning that the institution
itself can compensate for failures such as inability to procreate.
Such an account grounds marriage in the new natural law account of
flourishing, but it also allows the extension to same-sex marriage
without, according to Goldstein, permitting other forms such as
polygamy.


#### 3.2.2 Marriage as Protecting Love



A second widespread (though less unified) institutional approach to
marriage appeals to the ideal marital love relationship to define the
structure of marriage. This approach, in the work of different
philosophers, yields a variety of specific prescriptions, on, for
example, whether marital love (or committed romantic love in general)
requires sexual difference or sexual exclusivity (Scruton 1986,
305-311, Chapter 11, Halwani 2003, 226-242, Chartier
2016). Some, but not all, proponents explicitly argue that the marital
love relationship is an objective good (Scruton 1986, Chapter 11,
356-361, Martin 1993). These views, however, all take the
essential feature, and purpose, of marriage to be protecting a sexual
love relationship. The thought is that marriage helps to maintain and
support a relationship either in itself valuable, or at least valued
by the parties to it.



On this approach, the structure of marriage derives from the behavior
needed to maintain such a relationship. Thus marriage involves a
commitment to act for the relationship as well as to exclude
incompatible options--although there is controversy over what
specific policies these general commitments entail. To take an
uncontroversial example, marriage creates obligations to perform acts
which sustain love, such as focusing on the beloved's good
qualities (Landau 2004). More controversially, some philosophers argue
that sustaining a love relationship requires sexual exclusivity. The
thought is that sexual activity generates intimacy and affection, and
that objects of affection and intimacy will likely come into
competition, threatening the marital relationship. Another version
focuses on the emotional harm, and consequent damage to the
relationship, caused by sexual jealousy. Thus, due to the
psychological conditions required to maintain romantic love, marriage,
as a love-protecting institution, generates obligations to sexual
exclusivity (Martin 1993, Martin 1994, Scruton 1986, Chapter 11,
356-361, Steinbock 1986). However, philosophers dispute the
psychological conditions needed to maintain romantic love. Some argue
that casual extra-marital sex need not create competing relationships
or trigger jealousy (Halwani 2003, 235; Wasserstrom 1974). Indeed,
some have even argued that extra-marital sex, or greater social
tolerance thereof, could strengthen otherwise difficult marriages
(Russell 1929, Chapter 16), and some polyamorists (those who engage in
multiple sex or love relationships) claim that polyamory allows
greater honesty and openness than exclusivity (Emens 2004). Other
philosophers have treated sexual fidelity as something of a red
herring, shifting focus to other qualities of an ideal relationship
such as attentiveness, warmth, and honesty, or a commitment to justice
in the relationship (Martin 1993, Kleingeld 1998).



Views understanding marriage as protecting love generate diverse
conclusions regarding its obligations. But such views share two
crucial assumptions: that marriage has a role to play in creating a
commitment to a love relationship, and that such commitments may be
efficacious in protecting love (Cave 2003, Landau 2004, Martin 1993,
Martin 1994, Mendus 1984, Scruton 1986, 356-361). However, both
of these assumptions may be questioned. First, even if commitment can
protect a love relationship, why must such a commitment be made
through a formal marriage? If it is possible to maintain a long-term
romantic relationship outside marriage, the question as to the point
of marriage re-emerges: do we really need marriage for love? May not
the legal and social supports of marriage, indeed, trap individuals in
a loveless marriage or themselves corrode love by associating it with
obligation? (Card 1996, Cave 2003; see also Gheaus 2016) Second, can
commitment, within or without marriage, really protect romantic love?
High divorce rates would seem to suggest not. Of course, even if, as
discussed in 3.1, agents cannot control whether they love, they can
make a commitment to act in ways protective of love (Landau 2004,
Mendus 1984). But this returns us the difficulty, suggested by the
preceding paragraph, of knowing how to protect love!



Reflecting the difficulty of generating specific rules to protect
love, many such views have understood the ethical content of marriage
in terms of virtues (Steinbock 1991, Scruton 1986, Chapter 11,
356-361). The virtue approach analyzes marriage in terms of the
dispositions it cultivates, an approach which, by its reference to
emotional states, promises to explain the relevance of marriage to
love. However, such approaches must explain how marriage fosters
virtues (Brake 2012). Some virtue accounts cite the effects of its
social status: marriage triggers social reactions which secure spousal
privacy and ward off the disruptive attention of outsiders (Scruton
1986, 356-361). Its legal obligations, too, can be understood as
Ulysses
 contracts[1]:
 they protect relationships when spontaneous affection wavers,
securing agents' long-term commitments against passing desires.
Whether or not such explanations ultimately show that marital status
and obligations can play a role in protecting love, the general focus
on ideal marital love relationships may be characterized as overly
idealistic when contrasted with problems in actual marriages, such as
spousal abuse (Card 1996). This last point suggests that moral
analysis of marriage cannot be entirely separated from political and
social inquiry.


## 4. The Politics of Marriage



In political philosophy, discussions of marriage law invoke diverse
considerations, reflecting the theoretical orientations of
contributors to the debate. This discussion will set out the main
considerations invoked in arguments concerning the legal structure of
marriage.


### 4.1 Marriage and Legal Contract



Marriage is a legal contract, but it has long been recognized to be an
anomalous one. Until the 1970s in the U.S., marriage law restricted
divorce and defined the terms of marriage on the basis of gender.
Marking a shift towards greater alignment of marriage with contractual
principles of individualization, marriage law no longer imposes
gender-specific obligations, it allows pre-nuptial property
agreements, and it permits easier exit through no-fault divorce. But
marriage remains (at least in U.S. federal law) an anomalous contract:
"there is no written document, each party gives up its right to
self-protection, the terms of the contract cannot be re-negotiated,
neither party need understand its terms, it must be between two and
only two people, and [until 2015, when the US Supreme Court decision
in *Obergefell v. Hodges* established same-sex marriage in the
US] these two people must be one man and one woman" (Kymlicka
1991, 88).



Proponents of the contractualization, or privatization, of marriage
have argued that marriage should be brought further into line with the
contractual paradigm. A default assumption for some liberals, as for
libertarians, is that competent adults should be legally permitted to
choose the terms of their interaction. In a society characterized by
freedom of contract, restrictions on entry to or exit from marriage,
or the content of its legal obligations, appear to be an illiberal
anomaly. Full contractualization would imply that there should be no
law of marriage at all--marriage officiation would be left to
religions or private organizations, with the state enforcing whatever
private contracts individuals make and otherwise not interfering
(Vanderheiden 1999, Sunstein and Thaler 2008, Chartier 2016; for a
critique of contractualization, see Chambers 2016). The many legal
implications of marriage for benefit entitlements, inheritance,
taxation, and so on, can also be seen as a form of state interference
in private choice. By conferring these benefits, as well as merely
recognizing marriage as a legal status, the state encourages the
relationships thereby formalized (Waldron 1988-89,
 1149-1152).[2]



Marriage is the basis for legal discrimination in a number of
contexts; such discrimination requires justification, as does the
resource allocation involved in providing marital benefits (Cave 2004,
Vanderheiden 1999). In the absence of such justification, providing
benefits through marriage may treat the unmarried unjustly, as their
exclusion from such benefits would then be arbitrary (Card 1996).
Thus, there is an onus to provide a rationale justifying such resource
allocations and legal discrimination on the basis of marriage, as well
as for restricting marriage in ways that other contracts are not
restricted.



Before exploring some common rationales, it is worth noting that
critics of the social contract model of the state and of freedom of
contract have used the example of marriage against contractual
principles. First, Marxists have argued that freedom of contract is
compatible with exploitation and oppression--and Marxist
feminists have taken marriage as a special example, arguing against
contractualizing it on these grounds (Pateman 1988, 162-188).
Such points, as we will see, suggest the need for rules governing
property division on divorce. Second, communitarians have argued that
contractual relations are inferior to those characterized by trust and
affection--again, using marriage as a special example (Sandel
1982, 31-35, cf. Hegel 1821, SS75, SS161A). This
objection applies not only to contractualizing marriage, but more
generally, to treating it as a case for application of principles of
justice: the concern is that a rights-based perspective will undermine
the morally superior affection between family members, importing
considerations of individual desert which alienate family members from
their previous unselfish identification with the whole (Sandel 1982,
31-35). However, although marriages are not merely an exchange
of rights, spousal rights protect spouses' interests when
affection fails; given the existence of abuse and economic inequality
within marriage, these rights are especially important for protecting
individuals within, and after, marriage (Kleingeld 1998, Shanley 2004,
3-30, Waldron 1988).


### 4.2 The Rationale of Marriage Law



As noted, a rationale must be given for marriage law which explains
the restrictions placed on entry and exit, the allocation of resources
to marriage, and legal discrimination on the basis of it. The next
section will examine gender restrictions on entry; this section will
examine reasons for recognizing marriage in law at all, allocating
resources to it, and constraining property division on divorce.



A first reason for recognizing marriage should be set aside. This is
that the monogamous heterosexual family unit is a natural,
pre-political structure which the state must respect in the form in
which it finds it (Morse 2006; cf. new natural lawyers, Girgis et al.
2010). But, whatever the natural reproductive unit may be, marriage
law, as legislation, is constrained by principles of justice
constraining legislation. Within most contemporary political
philosophy, the naturalness of a given practice is irrelevant; indeed,
in no area other than the family is it proposed that law should follow
nature (with the possible exception of laws regarding suicide).
Finally, such objections must answer to feminist concerns that
excluding the family unit from principles of justice, allowing natural
affection to regulate it, has facilitated inequality and abuse within
it (see section 5).



Let us then begin with the question of why marriage should be
recognized in law at all. One answer is that legal recognition conveys
the state's endorsement, guiding individuals into a valuable
form of life (George 2000). A second is that legal recognition is
necessary to maintain and protect social support for the institution,
a valuable form of life which would otherwise erode (Raz 1986, 162,
392-3; Scruton 1986, 356-361; see discussion in Waldron
1988-89). But this prompts the question as to why this form of
life is valuable.



It is sometimes argued that traditions, having stood the test of time,
have proved their value. Not only is marriage itself such a tradition,
but through its child-rearing role it can pass on other traditions
(Sommers 1989, Scruton 1986, 356-361, cf. Devlin 1965, Chapter
4). But many marital traditions--coverture, gender-structured
legal duties, marital rape exemptions, inter-racial marriage
bans--have been unjust. Tradition provides at best a *prima
facie* reason for legislation which may be overridden by
considerations of justice. Further, in a diverse society, there are
many competing traditions, amongst which this rationale fails to
choose (Garrett 2008).



An account of the value of a particular form of marriage itself (and
not just *qua* tradition) is needed. One thought is that
monogamous marriage encourages the sexual self-control needed for
health and happiness; another is that it encourages the goods of love
and intimacy found in committed relationships. State support for
monogamous marriage, by providing incentives to enter marital
commitments, thus helps people lead better lives (e.g. Macedo 1995,
286). However, this approach faces objections. First, the explanation
in terms of emotional goods underdetermines the institution to be
supported: other relationships, such as friendships, embody emotional
goods. Second, claims about the value of sexual self-control are
controversial; objectors might argue that polygamy, polyamory, or
promiscuity are equally good options (see 5.2). There is a further
problem with this justification, which speaks to a division within
liberal thought. Some liberals embrace neutrality, the view that the
state should not base law on controversial judgments about what
constitutes valuable living. To such neutral liberals, this class of
rationales, which appeal to controversial value judgments about sex
and love, must be excluded (Rawls 1997, 779). Some theorists have
sought to develop rationales consistent with political liberalism,
arguing, for instance, that the intimate dyadic marital relationship
protects autonomy (Bennett 2003), or that some form of marriage could
be justified by its efficiency in providing benefits (Toop 2019) or
its role in protecting diverse caring relationships (Brake 2012),
fragile romantic love relationships (Cave 2017), or caregivers and
children (Hartley and Watson 2012, Toop 2019; see also May 2016,
Wedgwood 2016).



It is widely accepted that the state should protect children. If
two-parent families benefit children, incentives to marry may be
justified as promoting two-parent families and hence children's
welfare. One benefit of two-parent families is economic: there is a
correlation between single motherhood and poverty. Another benefit is
emotional: children appear to benefit from having two parents (Galston
1991, 283-288). (Moreover, some argue that gender
complementarity in parenting benefits children; but empirical evidence
does not seem to support this [Lee 2008, Nussbaum 1999, 205, Manning
*et al*., 2014].)



One objection to this line of argument is that marriage is an
ineffective child anti-poverty plan. For one thing, this account
assumes that incentives to marry will lead a significant number of
parents who would not otherwise have married to marry. But marriage
and child-rearing have increasingly diverged despite incentives to
marry. Second, this approach does not address the many children
outside marriages and in poor two-parent families. Child poverty could
be addressed more efficiently through direct anti-child-poverty
programs rather than the indirect strategy of marriage (Cave 2004;
Vanderheiden 1999; Young 1995). Moreover, there is controversy over
the psychological effects of single parenthood, particularly over the
causality underlying certain correlations: for instance, are children
of divorce unhappier due to divorce itself, or to the high-conflict
marriage preceding it? (Young 1995) Indeed, some authors have recently
argued that children might be better protected by legally separating
marriage from parenting: freestanding parenting frameworks would be
more durable than marriage (which can end in divorce), would protect
children outside of marriages, and would accommodate new family forms
such as three-parent families (Brennan and Cameron 2016, Shrage 2018;
see also Chan and Cutas 2012).



A related, but distinct, line of thought invokes the alleged
psychological effects of two-parent families to argue that marriage
benefits society by promoting good citizenship and state stability
(Galston 1991, 283-288). This depends on the empirical case (as
we have seen, a contested one) that children of single parents face
psychological and economic hurdles which threaten their capacity to
acquire the virtues of citizenship. Moreover, if economic dependence
produces power inequality within marriage, then Mill's
'school of injustice' objection applies--an
institution teaching injustice is likely to undermine the virtues of
citizenship (Okin 1994, Young 1995).



Finally, a rationale for restricting the terms of exit from marriage
(but not for supporting it as a form of life) is the protection of
women and children following divorce. Women in gender-structured
marriages, particularly if they have children, tend to become
economically vulnerable. Statistically, married women are more likely
than their husbands to work in less well-paid part-time work, or to
give up paid work entirely, especially to meet the demands of
child-rearing. Thus, following divorce, women are likely to have a
reduced standard of living, even to enter poverty. Because these
patterns of choice within marriages lead to inequalities between men
and women, property division on divorce is a matter of equality or
equal opportunity, and so a just law of divorce is essential to gender
justice (Okin 1989, Chapters 7 and 8; Rawls 1997, 787-794;
Shanley 2004, 3-30; Waldron 1988, and see 5.1). However, it can
still be asked why a law recognizing marriage as such should be
necessary, as opposed to default rules governing property distribution
when such gender-structured relationships end (Sunstein and Thaler
2008, Chambers 2017). Indeed, placing these restrictions only on
marriage, as opposed to enacting general default rules, may make
marriage less attractive, especially to men, and hence be
counter-productive, leaving women more vulnerable.



The preceding two rationales are both weakened by the diminished
social role of marriage; changing legal and social norms undermine its
effectiveness as a policy tool. In the 20th century,
marriage was beset by a "perfect storm": the expectation
that it should be emotionally fulfilling, women's liberation,
and effective contraception (Coontz 2006, Chapter 16). Legally, exit
from marriage has become relatively easy since the 'no-fault
divorce revolution' of the 1970's. Moreover, cohabitation
and child-rearing increasingly take place outside marriage. This
reflects the end of laws against unmarried cohabitation and legal
discrimination against children on grounds of
'illegitimacy', as well as diminishing social stigmas
against such behavior. Given such significant changes, marriage is at
best an indirect strategy for achieving goals such as protecting women
or children (Cave 2004, Sunstein and Thaler 2008, Vanderheiden
1999).



Some theorists have argued, in the absence of a compelling rationale
for marriage law, for abolishing marriage altogether, replacing it
with civil unions or domestic partnerships. This line of thought will
be taken up in 4.4, after an examination of the debate over same-sex
marriage.


### 4.3 Same-Sex Marriage



Many arguments for same-sex marriage invoke liberal principles of
justice such as equal treatment, equal opportunity, and neutrality.
Where same-sex marriage is not recognized in law, marriage provides
benefits which are denied to same-sex couples on the basis of their
orientation; if the function of marriage is the legal recognition of
loving, or "voluntary intimate," relationships, the
exclusion of same-sex relationships appears arbitrary and unjustly
discriminatory (Wellington 1995, 13). Same-sex relationships are
relevantly similar to different-sex relationships recognized as
marriages, yet the state denies gays and lesbians access to the
benefits of marriage, hence treating them unequally (Mohr 2005, Rajczi
2008, Williams 2011). Further, arguments in support of such
discrimination seem to depend on controversial moral claims regarding
homosexuality of the sort excluded by neutrality (Wellington 1995,
Schaff 2004, Wedgwood 1999, Arroyo 2018).



A political compromise (sometimes proposed in same-sex marriage
debates) of restricting marriage to different-sex couples and offering
civil unions or domestic partnerships to same-sex couples does not
fully answer the arguments for same-sex marriage. To see why such a
two-tier solution fails to address the arguments grounded in equal
treatment, we must consider what benefits marriage provides. There are
tangible benefits such as eligibility for health insurance and
pensions, privacy rights, immigration eligibility, and hospital
visiting rights (see Mohr 2005, Chapter 3), which could be provided
through an alternate status. Crucially, however, there is also the
important benefit of legal, and indirectly social, recognition of a
relationship as marriage. The status of marriage itself confers
legitimacy and invokes social support. A two-tier system would not
provide equal treatment because it does not confer on same-sex
relationships the status associated with *marriage*.



In addition, some philosophers have argued that excluding gays and
lesbians from marriage is central to gay and lesbian oppression,
making them 'second-class citizens' and underlying social
discrimination against them. Marriage is central to concepts of good
citizenship, and so exclusion from it displaces gays and lesbians from
full and equal citizenship: "being fit for marriage is
intimately bound up with our cultural conception of what it means to
be a citizen ... because marriage is culturally conceived as
playing a uniquely foundational role in sustaining civil
society" (Calhoun 2000, 108). From this perspective, the
'separate-but-equal' category of civil unions retains the
harmful legal symbol of inferiority (Card 2007, Mohr 2005, 89, Calhoun
2000, Chapter 5; cf. Stivers and Valls 2007; for a comprehensive
survey of these issues, see Macedo 2015).



However, if marriage is essentially different-sex, excluding same-sex
couples is not unequal treatment; same-sex relationships simply do not
qualify as marriages. One case that marriage is essentially
different-sex invokes linguistic definition: marriage is by definition
different-sex, just as a bachelor is by definition an unmarried man
(Stainton, cited in Mercier 2001). But this confuses meaning and
reference. Past applications of a term need not yield necessary and
sufficient criteria for applying it: 'marriage', like
'citizen', may be extended to new cases without thereby
changing its meaning (Mercier 2001). As noted above, appeal to past
definition begs the question of what the legal definition should be
(Stivers and Valls 2007).



A normative argument for that marriage is essentially different-sex
appeals to its purpose: reproduction in a naturally procreative unit
(see 3.2.a). But marriage does not require that spouses be able to
procreate naturally, or that they intend to do so at all. Further,
married couples adopt and reproduce using donated gametes, rather than
procreating 'naturally'. Nor do proponents of this
objection to same-sex marriage generally suggest that entry to
marriage should be restricted by excluding those unable to procreate
without third-party assistance, or not intending to do so.



Indeed, as the existence of intentionally childless married couples
suggests, marriage has purposes other than
child-rearing--notably, fostering a committed relationship (Mohr
2005, Wellington 1995, Wedgwood 1999). This point suggests a second
defense of same-sex marriage: exclusive marital commitments are goods
which the state should promote amongst same-sex as well as
opposite-sex couples (Macedo 1995). As noted above, such rationales
come into tension with liberal neutrality; further controversy
regarding them will be discussed below (5.2).



Some arguments against same-sex marriage invoke a precautionary
principle urging that changes which might affect child welfare be made
with extreme caution. But in light of the data available, Murphy
argues that the precautionary principle has been met with regard to
harm to children. On his view, parenting is a basic civil right, the
restriction of which requires the threat of a certain amount of harm.
But social science literature shows that children are neither
typically nor seriously harmed by same-sex parenting (see Manning
*et al*., 2014). Even if two biological parents statistically
provide the optimal parenting situation, optimality is too high a
standard for permitting parenting. This can be seen if an optimality
condition is imagined for other factors, such as education or wealth
(Murphy 2011).



A third objection made to same-sex marriage is that its proponents
have no principled reason to oppose legally recognizing polygamy (e.g.
Finnis 1997; see Corvino 2005). One response differentiates the two by
citing harmful effects and unequal status for women found in
male-headed polygyny, but not in same-sex marriage (e.g. Wedgwood
1999, Crookston 2014, de Marneffe 2016, Macedo 2015). Another response
is to bite the bullet: a liberal state should not choose amongst the
various ways (compatible with justice) individuals wish to organize
sex and intimacy. Thus, the state should recognize a diversity of
marital relationships--including polygamy (Calhoun 2005, Mahoney
2008) or else privatize marriage, relegating it to private contract
without special legal recognition or definition (Baltzly 2012).



Finally, some arguments against same-sex marriage rely on judgments
that same-sex sexual activity is impermissible. As noted above, the
soundness of these arguments aside, neutrality and political
liberalism exclude appeal to such contested moral views in justifying
law in important matters (Rawls 1997, 779, Schaff 2004, Wedgwood 1999,
Arroyo 2018). However, some arguments *against* same-sex
marriage have invoked neutrality, on the grounds that legalizing
same-sex marriage would force some citizens to tolerate what they find
morally abhorrent (Jordan 1995, and see Beckwith 2013). But this
reasoning seems to imply, absurdly, that mixed-race marriage, where
that is the subject of controversy, should not be legalized. A rights
claim to equal treatment (if such a claim can support same-sex
marriage) trumps offense caused to those who disagree; the state is
not required to be neutral in matters of justice (Beyer 2002; Boonin
1999; Schaff 2004; see also Barry 2011, Walker 2015).


### 4.4 Arguments for Marriage Reform



A number of theorists have argued for the abolition or restructuring
of marriage. While same-sex marriage became legally recognized
throughout the United States following the Supreme Court decision in
*Obergefell v Hodges 576 U.S. \_ (2015)*, some philosophers
contend that justice requires further reform. Some have proposed that
temporary marriage contracts be made available (Nolan 2016, Shrage
2013) and that legal frameworks for marriage and parenting be
separated (Brennan and Cameron 2016, Shrage 2018). A more sweeping
view, to be discussed in Section 5, is that marriage is in itself
oppressive and unjust, and hence ought to be abolished (Card 1996,
Fineman 2004, Chambers 2013, 2017). A second argument for
disestablishing or privatizing legal marriage holds that, in the
absence of a pressing rationale for marriage law (as discussed in
4.2), the religious or ethical associations of marriage law give
reason for abolishing marriage as a legal category. Marriage has
religious associations in part responsible for public controversy over
same-sex marriage. *If* marriage is essentially defined by a
religious or ethical view of the good, then legal recognition of it
arguably violates state neutrality or even religious freedom (Metz
2010, but see Macedo 2015, May 2016, Wedgwood 2016).



There are several reform proposals compatible with the
'disestablishment' of marriage. One proposal is full
contractualization or privatization, leaving marriage to churches and
private organizations. "Marital contractualism" (MC) would
relegate spousal agreements to existing contract law, eradicating any
special legal marital status or rights. Garrett has defended MC as the
default position, arguing that state regulation of contracts between
spouses and state expenditures on marriage administration and
promotion need justification. On his view, efficiency, equality,
diversity, and informed consent favor MC; there is no adequate
justification for the costly redistribution of taxpayer funds to the
married, or for sustaining social stigma against the unmarried through
legal marriage (Garrett 2009, see also Chartier 2016).



But marriage confers rights not available through private contract and
which arguably should not be eliminated due to their importance in
protecting intimate relationships--such as evidentiary privilege
or special eligibility for immigration. A second proposal would retain
such rights while abolishing marriage; on this proposal, the state
ought to replace civil marriage entirely with a secular status such as
civil union or domestic partnership, which could serve the purpose of
identifying significant others for benefit entitlements, visiting
rights, and so on (March 2010, 2011). This would allow equal treatment
of same-sex relationships while reducing controversy, avoiding
non-neutrality, and respecting the autonomy of religious organizations
by not compelling them to recognize same-sex marriage (Sunstein and
Thaler 2008). However, neither solution resolves the conflict between
religious autonomy and equality for same-sex relationships.
Privatization does not solve this conflict so long as religious
organizations are involved in civil society--for example, as
employers or benefit providers. The question is whether religious
autonomy would allow them, in such roles, to exclude same-sex civil
unions from benefits. Such exclusion could be defended as a matter of
religious autonomy; but it could also be objected to as unjust
discrimination--as it would be if, for example, equal treatment
were denied to inter-racial marriages.



Another issue raised by such a reform proposal is how to delimit the
relationships entitled to such recognition. Recall the new natural law
charge that liberalism entails an objectionable
"plasticicty" regarding marriage (3.2.1). One question is
whether recognition should be extended to polygamous or polyamorous
relationships. Some defenders of same-sex marriage hold that their
arguments do not entail recognizing polygamy, due to its oppressive
effects on women (Wedgwood 1999). However, some monogamous marriages
are also oppressive (March 2011), and egalitarian polygamous or
polyamorous relationships, such as a group of three women or three
men, exist (Emens 2004). Thus, oppressiveness does not cleanly
distinguish monogamous from polygamous relationships. Brooks has
sought to show that polygamy is distinctively structurally
inegalitarian as one party (usually the husband) can determine who
will join the marriage, whereas wives cannot (Brooks 2009). However,
this overlooks various possible configurations--if a polygamous
"sister wife," for instance, has the legal right to marry
outside the existing marriage, there is no structural inequality
(Strauss 2012). Most fundamentally, some authors have urged that a
politically liberal state should not prescribe the arrangements in
which its competent adult members seek love, sex, and intimacy, so
long as they are compatible with justice (Calhoun 2005, March 2011).
Some philosophers have argued that polygamists and polyamorous people
are unjustly excluded from the benefits of marriage, and that legal
recognition of plural marriage - or small groups of friends -
can preserve equality (Brake 2012, 2014, Den Otter 2015, Shrage 2016).
Finally, the history of racialized stigmatization of polygamy gives
reason to consider whether anti-polygamous intuitions rest on just
foundations (Denike 2010).



Conservatives also charge that the liberal approach cannot rule out
incestuous marriage. While this topic has sparked less debate than
polygamy, one defender of the civil-unions-for-all proposal has
pointed out that civil union status, as justified on politically
liberal grounds, would not connote sexual or romantic involvement.
Thus, eligibility of adult family members for this status would not
convey state endorsement of incest; whether the state should prohibit
or discourage incest is an independent question (March 2010).



A further problem arises with the proposal to replace marriage with
civil unions on neutrality grounds. Civil unions, if they carry legal
benefits similar to marriage, would still involve legal discrimination
(between members of civil unions and those who were not members)
requiring justification (for a specific example of this problem in the
area of immigration law, see Ferracioli 2016). Depending on how
restrictive the entry criteria for civil unions were (for example,
whether more than two parties, blood relations, and those not
romantically involved could enter) and how extensive the entitlements
conferred by such unions were, the state would need to provide reason
for this discrimination. In the absence of compelling neutral reasons
for such differential treatment, liberty considerations suggest the
state should cease providing any special benefits to members of civil
unions (or intimate relationships) (Vanderheiden 1999, cf. Sunstein
and Thaler 2008). As noted in 4.2, some political liberals have sought
to provide rationales showing why a liberal state should support
certain relationships; these rationales generate corresponding reform
proposals. One approach focuses on protecting economically dependent
caregivers; Metz proposes replacing civil marriage with
"intimate care-giving unions" which would protect the
rights of dependent caregivers (Metz 2010; cf. Hartley and Watson
2012). Another approach holds that caring relationships themselves -
whether friendships or romantic relationships - should be recognized
as valuable by the politically liberal state, and it should,
accordingly, distribute rights supporting them equally; the
corresponding reform proposal, "minimal marriage," would
provide rights directly supporting relationships, but not economic
benefits, without restriction as to sex or number of parties or the
nature of their caring relationship (Brake 2012). This would extend
marriage not only to polyamorists, but to asexuals and aromantics, as
well as those who choose to build their lives around friendships. A
third approach proposes that marital rights and status be replaced by
"piecemeal directives" which would regulate the various
functional contexts to which marriage law now applies (such as
cohabitation and co-parenting) (Chambers 2017); this proposal would
avoid designating any relationship type as entitled to special
treatment.



Many of the views discussed to this point imply that current marriage
law is unjust because it arbitrarily excludes some groups from
benefits; it follows, on such views, that marrying is to avail oneself
of privileges unjustly extended. This seems to give reason for
boycotting the institution, so long as some class of persons is
unjustly excluded (Parsons 2008).



Before *Obergefell*, U.S. law was in patchwork regarding
marriages involving at least one transgender person --
"trans--marriage," in Loren Cannon's term. As a
transgender person traveled from state to state, both their legal sex
and marital status could change (Cannon 2009, 85). While some raised
concerns that the political rationales given for recognizing such
marriages (such as the possibility of penile-vaginal intercourse)
reaffirmed heteronormative assumptions (Robson 2007), to other
theorists, the possibility of trans-marriage itself suggests the
instability or incoherence of legal gender categories and gendered
restrictions on marriage (Cannon 2009, Almeida 2012).


## 5. Marriage and Oppression: Gender, Race, and Class



Marriage historically played a central role in women's
oppression, meaning economic and political disempowerment and
limitation of opportunities. Until the late 19th century,
the doctrine of coverture (in English and U.S. law) suspended a
wife's legal personality on marriage, 'covering' it
with that of her husband, removing her rights to own property, make a
will, earn her own money, make contracts, or leave her husband, and
giving her little recourse against physical abuse. Well into the
20th century, legislatures continued to impose gendered
legal roles within marriage (known as 'head and master
laws'), to exempt rape within marriage from criminal
prosecution, and to allow--or impose--professional bars on
married women (Coontz 2006, 238; Cronan 1973; Kleingeld 1998). John
Stuart Mill compared wives' condition under coverture to slavery
(see section 1); while the late 20th century U.S. saw
gender-neutrality in legal marital responsibilities and an end to the
marital rape exemption, criticisms of marriage as oppressive persist.
Contemporary feminist attention to marriage is focused on spousal
abuse--indeed, some U.S. states still exempt spouses from sexual
battery charges (Posner and Silbaugh 1996)--, the gendered
division of labor in marriage, and the effects of marriage on
women's economic opportunities and power.



While Mill and Engels saw the establishment of monogamous marriage as
an ancient defeat of the female sex, Aquinas, Kant, and many others
have seen monogamy as a victory for women, securing for them faithful
partners, protection, and material support. So Kant writes that
"skepticism on this topic [marriage] is bound to have bad
consequences for the whole feminine sex, because this sex would be
degraded to a mere means for satisfying the desire of the other sex,
which, however, can easily result in boredom and
unfaithfulness.--Woman becomes free by marriage; man loses his
freedom by it" (Kant 1798, 210-211, [309]). However, as a
historical thesis about the origin of marriage, the idea that monogamy
provided women with needed material support has been debunked. In
early hunting-gathering societies, female foraging likely provided
more than male hunting, child-care was arranged communally, and,
rather than a single male providing for his female partner, survival
required a much larger group (Coontz 2006, 37-38). As a thesis
about the protection of women by their male partners, the incidence of
rape and violence by male partners themselves must be taken into
account (e.g., in the contemporary U.S., Tjaden and Thoennes 2000).
And as a thesis about sex difference, evolutionary
'just-so' stories purporting to show that women are
naturally more monogamous have been challenged by feminist
philosophers of biology (Tuana 2004).



Marriage law has also been a tool of racial oppression. The majority
of American states at one time prohibited inter-racial marriage; the
Supreme Court struck down such laws in 1967 (Wallenstein 2002,
253-254). Anti-miscegenation law did not prevent actual sex and
procreation between races, but it excluded women of color and their
children from the benefits of marriage. It was also a potent symbol of
alleged racial difference. Furthermore, African-American marriage
patterns were shaped by slavery. Enslaved persons could not legally
marry, and slave couples and their children were frequently separated
(Cott 2000). Contemporary philosophers of race argue that marriage is
still implicated in systemic racism (Collins 1998). For example,
historical conditions and structural racism have led to practices of
shared child-rearing in some African-American communities. Some
theories of marriage imply that such child-rearing practices are
inferior to the marital family. Theorists of racial oppression argue
that such practices should be recognized as a valuable alternative,
and, moreover, that law which excludes such practices from benefits
accorded to marriage may be racially unjust (Vanderheiden 1999; cf.
Collins 1998, Card 1996). Immigration law has also made women who are
dependent on marriage for their immigration status vulnerable to
abuse, particularly those women who are also subject to racism or
cultural marginalization (Narayan 1995).



Recent work has also highlighted the contemporary class-based marriage
gap in the U.S.: wealthier people are more likely to marry (McClain
2013). This suggests a different link between marriage and oppression:
one effect of socioeconomic inequality may be to deprive the worse-off
of access to marriage (perhaps because poverty impedes the formation
of stable relationships) and the further legal benefits marriage can
bring. There is arguably a tension, among egalitarian approaches,
between feminist criticisms of marriage as inherently oppressive and
egalitarian criticisms of barriers to accessing it (Chambers
2013).


### 5.1 Feminist Approaches



A major theme in feminist political philosophy has been the exclusion
of the marital family from justice. Political philosophy has tended to
relegate family life to natural hierarchy or affection (Okin 1979,
1989). Historically, this meant that the private sphere of marriage,
to which women were confined, was also the zone of state
non-interference, so that what happened to women there was not subject
to norms of justice. Gradually, law and political philosophy have come
to recognize that equal rights and liberties should be upheld within
the private sphere as outside it, but many political philosophers
still resist applying principles of justice directly within the
private sphere. However, feminists argue that gender-structured
marriage contributes to, or is even the mainstay of, women's
economic inequality and disempowerment, and that justice must
therefore regulate its terms--even, perhaps, to the point of
interfering with voluntary marital relations (Okin 1989, Ferguson
2016). At the same time, marriage has been a crucial site of socially
valuable care work, which often falls disproportionately on women, and
recent feminist work has focused on how the state can support that
work more equitably (Metz 2010, Bhandary 2018).



As noted above, one persistent rationale for excluding the family from
norms of justice is that its natural relations of affection and trust
are superior to merely just relations and likely to be threatened by
construing the family in terms of justice (Hegel 1821, SS75,
SS161A; Sandel 1982, 31-35). But abuse within marriage and
inequality on dissolution are significant problems, the gravity of
which should, according to critics, outweigh these finer virtues;
rights within marriage protect spouses when affection fails (Waldron
1988, Okin 1989). Moreover, it is not clear that affection and justice
must conflict; a commitment to treating one's spouse justly
could be part of marital love (Kleingeld 1998). Finally, marriage is
part of the basic structure of society, and thus, at least within
Rawlsian liberalism, is subject to principles of justice. This does
not determine, however, how principles of justice should constrain
marriage; the default liberal presumption is that marriage, as a
voluntary association, should be ordered as spouses choose--so
long as these choices do not lead to injustice (Rawls 1997, 792). We
will return to this below.



Marriage is a focus of feminist concern due to its effects on
women's life chances. Continuing disadvantage accruing to women
in marriage has been widely documented, and in some feminist analyses,
undergirds gender inequality (rival accounts place greater emphasis on
sexual objectification or workplace discrimination). Wives, even those
who work full-time outside the home, perform more housework than
husbands--this 'second shift' affecting their
workplace competitiveness. The social assignment of primary
responsibility for childcare to women, combined with the difficulty of
combining childcare with paid work, also undermine the workplace
competitiveness of women with children (Okin 1989, Chapter 7). The
gendered division of labor and the fact that 'women's
work' is less well-paid than men's together make it more
likely that married women, rather than their husbands, will downgrade
their careers, choose part-time work, or stay home to facilitate
child-rearing or when the spouses' careers conflict. These
choices make women "vulnerable by marriage": economic
dependence, and dependence on marriage for benefits such as health
insurance, fosters power inequality and makes exit difficult, in turn
facilitating abuse (Okin 1989, Chapter 7, Narayan 1995, Card 1996,
Brake 2016, Ferguson 2016).



As discussed in 4.2, rationales of equality or equal opportunity are
given for addressing economic inequalities arising within marriage
through divorce law (Okin 1989, Chapters 7 and 8; Shanley 2004,
3-30, Rawls 1997, 787-794). However, divorce law does not
address non-economic sources of power imbalances (such as gender role
socialization) within on-going marriages, nor does it address the
systemic way in which such inequalities arise. Equal opportunity seems
to require changing social norms related to marriage in ways which
divorce law does not. First, the gendered division of labor within
ongoing marriages is costly for women (Kleingeld 1998). Second, power
imbalances within marriage limit girls' expectations and teach
children to accept gendered inequality (Okin 1989, Chapter 7, Okin
1994). Third, anticipation of marriage affects women's
investment in their earning ability before marriage (Okin 1989,
Chapter 7). (But for an argument that some hierarchy and inequality in
marriage is just, see Landau 2012.)



Such social norms could be addressed through education or through
media campaigns promoting the equitable division of housework. Legal
measures such as requiring all marital income to be held equally could
encourage power equality within marriage (Okin 1989, Chapter 8).
However, state interference in on-going marriages arguably conflicts
with spouses' liberties (Rawls 1997, 787-794). This seems
to raise a theoretical problem for liberal feminism. Recent liberal
feminist approaches to marriage focus on how a just law of marriage
can protect women's interests as well as supporting a fairer
distribution of care work, which often falls on women (Metz 2010,
Brake 2012, Hartley and Watson 2012, Ferguson 2016, Bhandary 2018; see
also reform proposals in 4.4 above).



While many feminists have focused on the reform of marriage, others
have argued for its abolition as a legal status (Metz 2010, Chambers
2013, 2017). It is sometimes claimed that marriage is inherently
structured by sexist social norms, precluding the possibility of
feminist reform -- and that marriage also reinforces stigma
against the unmarried (Chambers 2017). On such views, abolishing
marriage is necessary to reshape social expectations and change
patterns of choice accompanying it. For example, legal marriage may
encourage women's economic dependence by enabling and providing
incentives for it. Thus, the legal structure of marriage, in
combination with social norms, is taken to encourage choices which
disempower women relative to men. Moreover, legal recognition of
marriage itself endorses an ideal of a central, exclusive love
relationship which, on the views of some feminists, encourages women
to make disadvantageous choices by inculcating an exaggerated
valuation of such relationships--at the expense of women's
other aspirations. Thus, in *The Second Sex*, feminist
philosopher Simone de Beauvoir (1908-86) identified the
expectations surrounding marriage as one of the primary means by which
women are socialized into a femininity which, in her view, was
limiting: marriage "is the destiny traditionally offered to
women by society" (de Beauvoir 1949 [1989], 425; see also Okin
1989), leading women to focus on their attractiveness as
mates--and not on study, career, or other ambitions. For this
reason, some feminists have rejected ideals of romantic, exclusive
love relationships, arguing that women should choose non-monogamy or
lesbian separatism (Firestone 1970; see also Card 1996). The idea that
marriage is essentially tied to such an ideal of romantic love will
require further examination in the next section.


### 5.2 The Queer Critique



Just as some feminists argue that marriage is inherently sexist, so
some philosophers of gay, lesbian, bisexual, and transgender
oppression argue that it is essentially heterosexist. (Some of these
philosophers refer to themselves as queer theorists, reclaiming the
word "queer" from its earlier, pejorative usage.) Queer
theorists have sought to demonstrate that a wide range of social
institutions display heteronormativity, that is, the assumption of
heterosexuality and of the gender difference that defines it as a
norm. Because queer theorists resist the normativity of gender as well
as of heterosexuality, there is an overlap between their critiques of
marriage and those of some feminists, especially lesbian feminists.
For these critics of heteronormativity, same-sex marriage is
undesirable because it would assimilate same-sex relationships to an
essentially heterosexual marital ideal: "Queer theorists worry
that pursuing marriage rights is assimilationist, because it rests on
the view that it would be better for gay and lesbian relationships to
be as much like traditional heterosexual intimate relationships as
possible" (Calhoun 2000, 113). On this view, extending marriage
to same-sex marriage will undermine, rather than achieve, gay and
lesbian liberation - and, indeed, further marginalize asexuals,
aromantics, polyamorists, and those who choose to build their lives
around friendships.



Recall that some arguments for same-sex marriage claim that central,
exclusive relationships are valuable, and that same-sex marriage would
benefit gays and lesbians by encouraging them to enter such
relationships (e.g. Macedo 2005; see 3.3). But critics of
heteronormativity, drawing on gay and lesbian experience, have argued
that the central, exclusive relationship ideal is a heterosexual
paradigm. Such critics note that gays and lesbians often choose
relationships which are less possessive and more flexible than
monogamous marriage. Instead of recognizing the diverse relationships
found in the gay and lesbian community, same-sex marriage would
assimilate lesbian and gay relationships into the heterosexual model.
While some advocates of same-sex marriage argue that marital status
would confer legitimacy on same-sex relationships, these critics argue
that the state should not confer legitimacy (and hence, implicitly,
illegitimacy) on consensual adult relationships, any more than it
should so discriminate between children born in or out of wedlock.
Such conferrals of legitimacy are thought to discourage diversity.
Moreover, same-sex marriage would expose gays and lesbians to the
disadvantages, even evils, of marriage: economic incentives to stay in
loveless marriages and reduced exit options which facilitate abuse and
violence (Card 1996, 2007, Ettelbrick 1989).



Other philosophers of gay and lesbian oppression have responded in
defense of same-sex marriage that it not only serves gay liberation,
it is essential to it. Excluding gays and lesbians from marriage marks
them as inferior, and so same-sex marriage would decrease stigmas
against homosexuality. Further, the costs of same-sex marriage must be
weighed with benefits such as healthcare, custody and inheritance
rights, and tax and immigration status (Calhoun 2000, Chapter 5,
Ferguson 2007, Mayo and Gunderson 2000). Finally, in response to
worries about gay and lesbian assimilation, defenders of same-sex
marriage have argued that marriage can incorporate diversity, rather
than suppressing it. Marriage need not entail monogamy; indeed, it is
argued that same-sex marriage could perform the liberatory function of
teaching heterosexuals that neither gender roles nor monogamy are
essential to love and marriage (Mohr 2005, 69-9, cf. Halwani
2003, Chapter 3; but see Brake 2018 for discussion of whether
"subversive weddings" can transform social attitudes if
they are not recognized as initiating marriages).



The feminist and queer critiques of marriage as essentially sexist, or
essentially heterosexist, face the same objection as do other claims
about the essence of marriage. Just because marriage has in the past
possessed certain features does not entail that they are inherent to
it. Thus, rather than reproducing sexist and heterosexist patterns,
same-sex marriage could serve women's and gay liberation by
transforming marriage, even, perhaps, opening the door to recognition
of a still wider variety of family forms (Ferguson 2007, Mayo and
Gunderson 2000, Calhoun 2005, Brake 2012).