by Martha Albertson Fineman
“In 1974, when I was a law student in a class called Injunctions, we often struggled through the factual and legal complexities of an opinion determining whether an injunction should issue. My professor, Owen Fiss, was fond of reminding us after each such session that the object of this entire struggle – the injunction – was “only a piece of paper.” His point was that it takes more than the issuance of some form or document to make things happen, to transform the status quo. Words are, after all, only words. Standing alone, they often are not worth much more than the paper upon which they are written. Instead, it is the interpretation and implementation that really matter-not the issuance of the document, but what comes next, that confers content and meaning.
I cannot help but reflect upon this bit of practical-injunction-realism when confronted with the many questions that emerge in response to contemporary policy discussions about the need for laws to strengthen the institution of marriage. Like an injunction, marriage is reducible to a piece of paper-the marriage license. This piece of paper distinguishes one on-going relationship from others, not officially designated marital in nature. Yet what meaning does marriage have beyond this fragile manifestation?
This question asks us to consider what we imagine to be the content, purpose, and function of the institution we call marriage. This consideration raises two additional questions of relevance. First, what does the word”marriage” convey to us as individuals? In addressing this question, we look at marriage from a personal perspective-as a cultural and social practice in which we engage. Second, what does marriage convey to us collectively-as a society? From this perspective we look at the functions marriage performs on political, ideological,and structural levels-its construction in law and policy .
Clearly, to both individuals and society, marriage constitutes a legal relationship. Through law, the state defines who may marry and the consequences of marriage at dissolution of the relationship, be it by death or divorce.In this regard, all marriages within a jurisdiction are standardized. Law may establish uniform standards,specifying who may marry whom and what formalities must be observed. Law may also define what economic and other consequences attend the dissolution of the marriage relationship. The ultimate content and conduct of marriage from an individual perspective is, however, far from clear. This is because of the way that society and law have given existing marriage relationships “privacy,” thereby shielding them from supervision. For on-going marriages the norms are non-intervention and minimal regulation. In some other on-going formal and legal relationships that are embodied in pieces of paper-the relationship between shareholder and corporation, for example-there is no expectation of privacy. Rights and obligations are defined, limited, and structured so that the range and nature of interactions are predictable and potentially publicly enforceable. By contrast, the issuance of a marriage certificate does not determine the conduct of any specific marriage, what it means to its participants, or how those participants will function within the relationship. The laws governing marriage leave the day-to-day implementation of marriage to the individuals. The conduct of the parties defines their marriage, giving it content and meaning. Marriages are individualized, idiosyncratic arrangements;even external articulations of what constitutes “ideal”relationships may influence them. The law recognizes and reinforces this individualized characteristic of marriage through the doctrine of marital privacy. Except in extreme situations, there are no legal enforcement mechanisms to ensure compliance with standards of conduct imposed generally across marriages. The result might be characterized as creating a vacuum of legally mandated meaning for marriage-a vacuum that is to be filled with various non-legal, sometimes conflicting, individual aspirations, expectations, fears, and longings.
Reflection on the prospect of varied, individualized possibilities for the meaning of marriage suggests, that in order to answer the question “why marriage?” we must first consider “what marriage?” or more succinctly, “what is marriage?” Questioning what marriage actually is calls attention to the institution’s individualized and malleable nature. By contrast, a focus on “why marriage” highlights the societal function and rationale for the institution. I will discuss each question-the “what” as well as the “why” of marriage.
Marriage has various meanings to individuals entering into it. Marriage can be experienced as: a legal tie,a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfillment, a societal construct, a cultural phenomenon, a religious mandate, an economic relationship, a preferred reproductive unit, a way to ensure against poverty and dependency, a romantic ideal, a natural or divined connection, a stand-in for morality, a status, or a contractual relationship.
Marriage also has multiple potential meanings to the society that constructs and contains it. From the state’s perspective, marriage may mean the imposition of order-necessary for record-keeping purposes (e.g., to facilitate property transfers at death). Marriage may also be viewed to provide order in a different context. It has been argued that marriage is the preferred method of containing and harnessing [male] sexuality in the interests of the larger society. Marriage can reflect the moral or religious convention of a society-a symbolic function. Marriage can also be the site where essential reproductive tasks are preformed for society. Society must reproduce itself both through the production of children and the educating and disciplining of those children into workers, voters, and productive citizens-tasks traditionally undertaken by the marital family. In this way, marriage can also be seen as serving society by taking care of the dependency and vulnerability of some members of the marital family. Finally, marriage can be the mechanism through which society distributes and delivers social goods to its citizens.
We should be clear about which of the many ways of thinking about marriage are informing the arguments that we make and the policy that we propose. If we remain clear about the role or function of marriage to which we subscribe – how we are filling the marriage-meaning-void-our own answer to the question, “why marriage?” may be revealed. In advocating for marriage, it may be the case that we are inappropriately substituting an individualized meaning for a societal rationale for the institution. Only societal-based rationales make legitimate societal regulation and control of marriage. Further, some of the historically societal based rationales for marriage may no longer seem appropriate in our changing world. For example, a couple may want to marry because marriage has a certain societal meaning: access to state subsidy in the form of economic and social benefits not available to other forms of sexual affiliation. The couple may also want to marry because of the institution’s individual meaning: a symbolic manifestation of their relationship that will affirm their commitment to each other. If, however, the couple is a same-sex couple, some religious leaders and politicians will oppose such a marriage because they regard marriage as a natural, divinely ordained relationship (an individualized, religious meaning), traditionally and appropriately confined to heterosexual couples (moral or tradition-based societal meaning).’ In a secular society such as ours, however, only the second reason warrants consideration. The issue then becomes whether the societal function of marriage as the mechanism to provide economic benefits and protection is appropriately limited by the moral or traditional meanings of marriage. The questions we would confront in this type of balance would include: when should history and tradition give way to new patterns of behavior; when should law reflect a moral position, particularly when there is no societal consensus that certain conduct is moral or immoral?
As illustrated in this example, the question “why marriage?” might become more complicated and difficult to answer if we must first reveal the meaning (or meanings)we assign to the institution of marriage. This type of consideration forces our focus away from nature or form of the marital relationship to the role or function we want the institution to serve in our society. It also reveals that we are making certain assumptions about the capabilities and capacities of marriage as distinguished from other relationships in society-assumptions about its unique ability to accomplish certain societal functions.
The concept of marriage, and the assumptions it carries with it, limit development of family policy and distort our ideology. The availability of marriage precludes consideration of other solutions to social problems. As the various (and by no means exhaustive) meanings of marriage listed above indicate, marriage is expected to do a lot of work in our society. Children must be cared for and nurtured, dependency must be addressed, and individual happiness is of general concern. The first question we should be asking is whether the existence of a marriage is,in and of itself, essential to accomplishing any of the societal goals or objectives we assign to it.
I argue that for all relevant and appropriate societal purposes we do not need marriage, per se, at all. To state that we do not need marriage to accomplish many societal objectives is not the same thing as saying that we do not need a family to do so for some. However, family as a social category should not be dependent on having marriage as its core relationship. Nor is family synonymous with marriage. Although both of these things might historically have been true, things have changed substantially in the past several decades. Marriage does not have the same relevance as a societal institution as it did even fifty years ago, when it was the primary means of protecting and providing for the legal and structurally devised dependency of wives.
The pressing problems today do not revolve around the marriage connection, but the caretaker-dependent relationship. In a world in which wives are equal partners and participants in the market sphere, and in which the consensus is that bad marriages should end, women do not need the special protection of legal marriage. Rather than marriage, we should view the parent-child relationship as the quintessential or core family connection, and focus on how policy can strengthen this tie. Thus, in a responsive society, one could have a marriage [or other long-term sexual affiliations] without necessarily constituting a”family” entitled to special protection and benefits under law. Correspondingly, one might have dependents, thereby creating a family and gaining protection and benefits,without having a marriage.
If this suggestion seems extreme and radical, it only serves to demonstrate the extent to which marriage continues to be uncritically central to our thinking about the family. What is bizarre is that it remains central in spite of the fact that the traditional marital family has become a statistical minority of family units in our society. The tenacity of marriage as a concept explains the relatively unsophisticated and uninformed policy debates. Marriage,as the preferred societal solution, has become the problem. The very existence of this institution eclipses discussion and debate about the problems of dependency and allows us to avoid confronting the difficulty of making the transformations necessary to address these problems.”
Fineman, Martha Albertson, Why Marriage? (2001). Virginia Journal of Social Policy and the Law, Vol. 9, No. 1, p. 240, 2001; Emory Legal Studies Research Paper No. 12-204. Available at SSRN: https://ssrn.com/abstract=2075914