Public Displays of Affection
Untying the Knot: Marriage, the State, and the Case for Their Divorce
By Tamara Metz
Princeton, New Jersey: Princeton University Press, 2010, 198 pp., $27.95, hardcover
From Disgust to Humanity: Sexual Orientation & Constitutional Law
By Martha Nussbaum
New York: Oxford University Press, 2010, 217 pp., $21.95, hardcover
Reviewed by Emily Douglas
Marriage bestows dignity. Marriage conveys a seal of approval. Marriage embeds a couple within a deep vein of cultural meaning. All of these special, expressive functions of legal status are the arguments LGBT marriage-equality advocates use to explain their position. They’re the same reasons marriage-equality opponents give for theirs.
Marriage is obviously highly contested territory, with entrenched and passionate players on all sides. But according to Tamara Metz’s Untying the Knot, there’s a thoroughly unwelcome interloper on the battlefield: the liberal state, which authorizes these unions in the first place. Critiques of the institution of marriage and its centrality in recent years within the LGBT rights agenda have come from many corners—feminists, queer theorists, legal scholars, policy makers—but this one comes from a political theorist who is deeply committed both to the liberal state and to keeping the state in its place. Metz makes a cogent, clear, and utterly convincing case for disestablishing this rather unusual legal status, invested as it is not only with obligations and benefits but also with deep social meaning. Why, she asks, should the state be involved in “making love public?”
To evaluate whether the state ought to be sanctioning interpersonal unions, Metz returns to its founding promise: that it will offer its citizens the chance to live in “liberty, equality, and stability” amid a diversity of values and cultures. Because the components of this promise are often at odds with one another, the liberal state offers its citizens an exchange: trade in some freedom in public in return for a promise that the state will not bother you in private. It will not enter into the realm of thought and belief; it has no business creating laws that shape people’s self-understandings.
But legal marriage crosses the threshhold of the private, influencing our hopes and values and determining the self-images not only of those who marry but also of those who choose not to, or who want to but don’t or can’t. This indicates marriage’s value—as well as the threat it poses to individuals’ freedom to choose what sort of family or caregiving relationship best serves their interests. In (publicly) endorsing the (private) choice of certain kinds of intimate partners, the state encourages some relationships while disapproving of others. Marriage-equality advocates argue that freedom of expression and association is served by extending marriage to same-sex couples, but Metz turns the argument on its head. Because, she says, marriage
draws the state into the most intimate corners of citizens’ lives (family and sexual life, religious and cultural value systems) and effectively privileges some views of the good life while punishing others, the establishment of marriage threatens freedoms of conscience, expression, and association.
But what if citizens need help in figuring out how to pursue and create meaning in their lives? After all, individuals voluntarily give up freedom all the time, deciding that a higher authority can guide them to something more correct, rewarding, or true than what they can readily discover on their own. That’s the role of a “freedom-guiding”—not “freedom-limiting”—ethical authority. However, the state fails those who use it this way, says Metz. If “marital status is conferred with the aim of altering self-understandings, inculcating cultural norms, and integrating individuals into the web of community,” then an institution with a more developed set of cultural norms and a richer sense of community—such as religion—is a much better ethical authority.
Over time, courts considering whether same-sex couples have the right to marry have become more forthright in acknowledging that the value of marriage far exceeds the particular rights and responsibilities spelled out by law. Thus, even though California offered a comprehensive domestic-partnership status that was legally equivalent to marriage, the state’s Supreme Court ruled that it could not constitutionally exclude same-sex couples from marriage. Explaining why the separate legal status—domestic partnership—was unequal, the California court said that marriage is a fundamental right; therefore, the state is obliged to “create and control” it. The court excused itself from explaining why marriage rather than domestic partnership was the preferred social policy in the first place.
It’s no surprise that the state is perfectly pleased to shape thought and belief; after all, it does not always have the opportunity to wield this kind of ethical, psychosocial power—and shouldn’t. The state should, however, be concerned with facilitating and protecting intimate, caregiving relationships. Because the work of caregiving is best done by individuals, not the state; because intimate caregiving can be risky for both caregiver and dependent; and because the state benefits when individuals are willing to share resources and negotiate reciprocity, Metz argues, the state is obligated to provide some sort of social insurance for all caregiving relationships, not only those recognized by marriage. Metz is highly attuned to feminist critiques of the classically liberal divide between public and private, which renders work done in private invisible, and which can hide inequality and shield abuse; therefore, she takes the need for state intervention in caregiving relationships very seriously.
Where Metz’s critique runs aground is in overestimating the liberatory potential of alternative statuses to marriage. Her deus ex machina is the Intimate Caregiving Union (ICGU), which would function similarly to marriage but more flexibly and would operate without the weight of marriage’s cultural baggage. She’s troublingly short on specifics, though. Unlike other critics of marriage, Metz argues that we can make a normative statement about what kinds of relationships best foster competent caregiving, and, therefore, stability. She writes,
Intimate care is best served by relatively stable, relatively long-term relationships to create time and space for a wide variety of exchange, and it usually though not always takes place in the context of a relatively long-term, consistent cohabitation.
However, though Metz suggests that ICGUs aren’t just for couples or nuclear families, she fails to fully explain how they could be adapted for different types of relationships. She writes that the ICGU “provides caregiving unions with all and only the benefits they actually need from the state,” but she also argues in favor of the importance of “bundling” rights and responsibilities in order to build equality protections (remedies for the risks of caregiving) into any legally recognized, caregiving status. Metz claims that gendered divisions of power and labor within families would be better addressed by ICGUs than by marriage—but if the status allows for more flexibility, wouldn’t that allow individuals to evade the duties of care, thus perpetuating gender inequality? She claims that ICGUs would provide protection to all sorts of caregiving relationships, including those for which marriage is a poor or impossible match, but she does not address whether an ICGU could apply to the most vulnerable caregiving relationships, those for which legal status has yet to be sought. And Metz’s ICGU, by her own admission, is not for everyone: it doesn’t guarantee that no one will be ever single, that is to say, without an intimate caregiver of some kind.
In other words, ICGUs sound a lot like marriage. Metz admits that “both marriage and ICGU status reflect value judgments” about what types of relationships best sustain individuals—and best serve the interests of a state concerned with preserving stability. She briefly acknowledges that a civil union or ICGU would eventually accrue many of the meanings and norms of marriage, but she does not wrestle with what the inevitability of larger social meaning represents for her critique of marriage. Given that all states now permit no-fault divorce, so that parties to a marriage are under no obligation to defend its dissolution to an ethical authority, it’s unclear just how deeply the state still shapes behavior within a marriage. It’s possible that Metz’s ICGU would better allow members of the union to stipulate what sorts of behaviors should and shouldn’t have legal consequences—some couples may not want to attach a legal penalty to nonmonogamy, for instance—but Metz leaves this possibility underexplored.
Martha Nussbaum’s From Disgust to Humanity provides some clues about why the state’s power to dignify private life-choices is so attractive. She walks readers through the past thirty years in U.S. constitutional law on sexual orientation—much of which is a fight over whether the state will provide even basic recognition of the legitimacy of choosing a same-sex partner, let alone sanction a same-sex marriage. Nussbaum’s aim is to show that the underpinnings of much of the antigay animus in the U.S. legal tradition has been and still is rooted in reflexive disgust at the threatening or unfamiliar. Instead of using disgust as a bellwether for violations of collectively held social values, Nussbaum suggests that we begin to use it as a occasion to practice a “politics of humanity,” that is, “the combination of equal respect for one’s fellow citizens with a serious and sympathetic attempt to imagine what interests they are pursuing.”
Among the prominent LGBT-rights cases, Lawrence v. Texas, the Supreme Court case that found sodomy laws unconstitutional, exemplifies this approach. The decision was, writes Nussbaum, a triumph of the “moral imagination”:
Instead of being treated as a class of outlaws condemned by the wisdom of the ages, gays and lesbians took their place, in the judicial mind, as equal citizens and “adult persons,” with interests like those of other people “in deciding how to conduct their private lives in matters relating to sex.”
Each of the cases Nussbaum considers—from the 1895 criminal trials of Oscar Wilde, to the Supreme Court decision invalidating a 1992 Colorado law that had made antidiscrimination protections for LGBT people illegal, to contemporary gay-marriage cases in Massachusetts, Iowa, and California—tells a piece of the story of the slow and ongoing legal struggle for gay equality. But in Nussbaum’s telling, challenges to sodomy laws take on particular force; the issue is no longer a theoretical debate over laws long unenforced but rather a visceral example of humiliation, at the hands of an almost unimaginably intrusive state. (Or at least, of the humiliation of gay men; Nussbaum has a blind spot about lesbians, whose sexual practices, although they may have been less directly targeted by sodomy laws, are no more comprehensible to the straight majority than are gay men’s.) Perhaps, here, we can understand why the idea of state as ethical authority can be so appealing: if the state has unjustly robbed LGBT people of dignity, when it offers to recognize their unions, many gay people are eager to jump on the bandwagon.
Because Nussbaum pays such close attention to disgust, she’s particularly sensitive to instances when the state’s reaction has been the opposite—for example, when it bestows its blessing, as with marriage. She argues that it is exactly this granting of approval that drives the hostility among some conservatives toward same-sex marriage. And she’s forthright about (or resigned to) the significance of marriage in people’s lives:
Marriage is both ubiquitous and central. All across our country, in every religion, every social class, every race and ethnicity, every religion or nonreligion, people get married. It is a key to the pursuit of happiness, something people aspire to—and keep on aspiring to, again and again, even when their experience has been far from happy. To be told, “You cannot get married” is thus to be excluded from one of the defining rituals of the American life cycle.
The reader can sense that, though she ultimately joins Metz in advocating for a “disaggregated approach” to relationship recognition (and mentions that there is very weak justification for any prohibitions on consenting adults entering into a marriage, be it polygamous or incestuous or same-sex), Nussbaum is loathe to comfort LGBT couples with an analysis that concludes that marriage shouldn’t be available to anyone, them included.
Unlike many legal scholars and advocates, Nussbaum doesn’t believe that access to marriage will guarantee full LGBT equality. Her review of the history of privacy in case law leads her to conclude that “It is not implausible for gay men to think that they cannot enjoy full social equality so long as panic-driven crusades against bathhouses and male sex clubs are a major part of social policy.” Nussbaum shows that the particular things the state recognizes as private—the right to choose a partner of the same sex? the right to choose a partner of the same sex in a sex club?—are as important as its delineation of the boundaries of the private. Here’s Nussbaum’s discussion of the many flaws in the legal concept of privacy:
Privacy is one of the most vague and confusing concepts in the law. It includes ideas of informational secrecy, modesty, seclusion, and decisional autonomy, in a potentially confusing way. In the area of sexual liberty the idea of privacy suggests an idea of decisional freedom, the idea that certain choices (of intimate association, of childbearing and conception) are for people to make on their own, with no supervision from the state.
Indeed, the history of privacy law is the history of court decisions regarding what individuals can make up their own minds about. Nussbaum returns the concept of privacy to its roots in the thought of John Stuart Mill: what is properly private is conduct that is “self-regarding,” that is, “fully consensual” and secluded, such that it will not create direct offense to others.
The reader who turns to Nussbaum after Metz will wonder whether Nussbaum’s faithful reading of the legal scholarship on marriage will lead her to conclude, as Metz does, that state-sanctioned marriage is indefensible. Having found that there are no legitimate reasons to ban same-sex couples from marrying, Nussbaum considers whether this is merely an issue of nondiscrimination, or where there is a fundamental right to have the state recognize intimate partnerships as marriage. Courts have repeatedly confirmed that if the state makes a package of benefits and responsibilities available for some couples, then it must be available to all (including those in mixed-race relationships; including those in prison). They have also said that marriage is a fundamental right, and thus, that the state must enable people to exercise it. Nussbaum’s reading of the legal landscape is that while the “right to marry” “does not obligate the state to offer any particular package of civil benefits to people who marry,” marriage is “frequently classified with fundamental personal liberties” protected by the Constitution. She identifies it as a due-process liberty, meaning that no amount of notice or process, and no alternative status, can justify taking it away.
Metz observes that “intimate associations are deeply problematic for liberalism. They draw affection away from the liberal state and often demand its protection.” Together, Metz and Nussbaum provide a rich account of what happens when the law encounters, supports, and gives preferential treatment to certain choices individuals make about love, sex, and attachment. They offer glimpses of how individuals have organized their families and intimate relationships in response. The struggle for recognition, for freedom, and for diverse family forms is far from over, but the battle lines are more clearly drawn.
Emily Douglas is the editor of TheNation.com. From 2004 – 2006, she worked in legal advocacy at Gay and Lesbian Advocates and Defenders (GLAD) in Boston.