• Open Access

Reforming Marriage: A Comparative Approach

Authors


Abstract

In this article, I examine the case for privatising marriage and replacing civil marriage with inclusive civil union policies. I argue against this proposal because of its likely detrimental impact on the social standing of women and girls. In order to assess the importance of civil marriage historically and cross-culturally, I examine a contemporary debate over marriage reform in some predominantly Islamic societies in regard to temporary marriage. I also propose a policy to protect the interests of children of both married and unmarried parents, so that this issue will be less of a stumbling block to proposals for inclusive civil marriage.

1. Introduction

A growing number of progressive legal and political theorists are proposing that the institution of marriage be privatised or ‘disestablished’.1 More specifically, they propose that non-state actors and private groups be allowed to define and regulate marriage, and the state would instead recognise and regulate only ‘civil unions’. In this article, I will evaluate the policy of replacing civil marriage with civil union, and ultimately argue against this. Although this move makes sense in the context of marriage reform efforts that aim to eliminate discrimination against same-sex couples, it fails to consider marriage reform movements around the world that aim to protect women and girls from oppressive marriage practices, including child marriage, forced marriage, and mandatory bride virginity. Getting the government out of our bedrooms and allowing private civil organisations in (for those who choose to marry) may make sense when we view marriage reform through the lens of LGBT rights. But it makes little sense from the perspectives of other social justice movements.

In what follows, I will offer a comparative and contextual approach to marriage reform. While a truly comprehensive and global look at marriage reform is beyond the scope of this article, I will explore a current debate about marriage reform in several predominantly Islamic societies and what is at stake for women. More specifically, I will examine the ancient Arab custom of temporary marriage (mut'a or sigheh), and disagreements about its desirability between Shi'ite and Sunni Muslims, and also among feminists in contemporary Iran. After explaining how temporary marriage works, and how it offers an alternative to permanent marriage, I will evaluate how the state's regulation of marriage in this context impacts women. A comparative approach to marriage reform suggests that, even in non-liberal states with established religions, the regulation of marriage by the state can promote greater social justice.2

In the second half of this article, I will suggest ways that democratic states can regulate marriage in order maximise equality both among families and between spouses. While I defend the state's regulation of civil marriage, I argue against the state's promotion of marriage as a response to the growing number of divorced or never married parents. Although this trend may seem less than ideal to some, the state need not (and should not) use its power to coerce domestic and sexual intimacy — via civil marriage or union — between adults in order to advance its legitimate goal of protecting the welfare of children. Instead the state can better protect children by promoting schemes of cooperation among parents in different kinds of relationships, via a formal mechanism whereby parents, married or unmarried, commit to child support and care arrangements independently from their commitments to each other. The state already facilitates such agreements between unmarried parents, and so my proposal is that the state should do this as well with married parents and not presume that the marriage agreement is comprehensive or enduring enough to cover the terms of co-parenting. Protecting the welfare of children directly, rather than indirectly through the marital status of their parents, will allow us to design marriage policies that are appropriate to adults who wish to make marriage-like commitments without having to disestablish marriage.

2. Fixed-term Marriage

Mut'a’ is usually translated as ‘temporary marriage’ (and literally means ‘pleasure’), while ‘sigheh’ literally refers to the legal contract of a temporary marriage.3 Shi'ite and Sunni Muslims strongly disagree about whether mut'a is a permissible form of marriage or is simply sex for hire (i.e. prostitution).4 Both sects acknowledge mut'a as an Arab custom pre-dating Islam and permitted by the Prophet Mohammad up to some point. There is disagreement over whether the practice was later forbidden by the second caliph Omar (Umar) or by the Prophet himself. Shi'ites believe that Omar introduced the prohibitions on mut'a and do not believe these prohibitions are valid or binding on Muslims, and cite passages from the qur'an and various hadiths to support their claims.5

The main differences between temporary and permanent marriage are: 1) a temporary marriage is entered into for a finite period of time (one hour to 99 years) and so generally terminates without the spouses having to initiate a divorce; 2) the spouses in a temporary marriage do not inherit from each other; 3) a temporary marriage can be nonsexual, and this can be specified in the contract, though, in general, the objective of mut'a is sexual enjoyment rather than procreation; and 4) a woman in a temporary marriage does not need her husband's permission to take a job or travel, and, in general, a temporary wife has more personal freedom and autonomy than a permanent wife, though fewer rights to financial support.6 The main similarities between temporary and permanent marriage (‘nikah’, which literally means sexual intercourse) are: 1) any biological children of the couple are entitled to inherit and to some level of support from both parents; 2) the wife receives a dower or mandatory gift (‘mahr’); 3) the wife must observe a period of sexual abstinence when the marriage terminates (though the length is a bit shorter in a temporary marriage); and 4) a woman may have only one husband (permanent or temporary) while a man may have more than one wife (up to four permanent and an indefinite number of temporary wives).7 Traditionally, temporary marriage was not regulated by the state, though the current Iranian government requires that they be registered.8

According to Shahla Haeri, ‘Before the revolution of 1979, the secular Iranian middle classes dismissed temporary marriage as a form of prostitution that had been legitimised by the religious establishment’.9 But after the revolution, Haeri writes,

The Islamic regime has shifted its strategy from defending sigheh as a legitimate form of marriage to that of upholding it as a progressive institution, and as ‘one of the brilliant laws of Islam’ … especially suited to the needs of modern society. … The officially formulated position now is that the concept of temporary marriage is one of the most advanced and farsighted aspects of Islamic thought, indicating Islamic understanding of the nature of human sexuality. The concept of temporary marriage is widely disseminated to the public through such different forums as mosques, religious gathering, schools, newspapers, books, and radio and television. The Islamic regime is educating the public about its form, its function, and its moral superiority over the ‘decadent’ Western style of ‘free’ sexual relationships.10

Haeri claims that the current regime is especially promoting mut'a for young adults who may not be ready for a permanent marriage due the pursuit of educational credentials or the lack of economic means. An entry in Encyclopedia Iranica on Mut'a [Mot'a] asserts that,

The most widely known and popularly discussed variation of mot'a in Persia today is the so-called trial marriage (ezdewāj-e āzmāyeši), proposed by Mortażā Moṭahhari (d. 1981), who defined it as an agreement between young men and women to marry with or without sexual intercourse, for a specified time period.11

It may come as a surprise to some that the imams in contemporary Iran are open-minded and tolerant toward trial marriage among young adults. When the British philosopher Bertrand Russell proposed trial marriage in his 1929 book, Marriage and Morals, he was pilloried by the religious establishment in the US, and it is unclear how his proposal would be received today. Although sexual relations outside of marriage are tolerated to a greater degree in contemporary secular societies, trial or temporary marriage has some advantages even in liberal democracies, which I will discuss below.

The New York Times reporter, Elaine Sciolino, writing in 2000, claims that:

[A]n odd mix of feminists, clerics and officials have begun to discuss sigheh as a possible solution to the problems of Iran's youth. An extraordinarily large number of young people (about 65 per cent of the population is under 25), combined with high unemployment, means that more couples are putting off marriage because they cannot afford it. Sigheh legally wraps premarital sex in an Islamic cloak.12

Sciolino interviewed Shahla Sherkat, the editor of Zanan (a feminist monthly) about sigheh for her story. According to Sherkat, promoting the option of temporary marriage will mean that:

First, relations between young men and women will become a little bit freer, … Second, they can satisfy their sexual needs. Third, sex will become depoliticized. … Finally, our society's obsession with virginity will disappear.13

Sherkat's observations suggest that mut'a is a cultural tool for loosening the religious rules that mandate gender segregation and proscribe sex outside of permanent marriage (especially for women). It is also a useful political tool for placating Iran's potentially rebellious youth who have been demanding greater personal freedoms. Moreover, the prevalence and acceptance of temporary marriages in Iran puts social pressure on the practice of mandatory bride virginity as a requirement for permanent marriage. Easing the rules on gender segregation and sexual ‘purity’ for women, and perhaps also discouraging the practices of virginity testing, shaming and ostracising unmarried women who have had sexual relationships are developments that feminists should welcome.

The practice of mut'a appears to reflect relatively permissive and nonjudgmental attitudes toward sexuality that, paradoxically, both subvert and reinforce double standards of morality that turn some sexually active women into social outcasts. Mut'a subverts double standards by acknowledging that both men and women need and can benefit from sexual intimacy and companionship. Yet, mut'a reinforces double standards in that a woman who has sex with a man who is neither her temporary nor permanent husband is regarded as a prostitute, and is scorned. By arranging a mut'a, which is relatively easy to do, a man raises a woman's standing from a prostitute to a wife,14 which protects the social standing of some women. Unfortunately, the practice of temporary marriage does not end the policing of women's sexuality, or challenge beliefs that separate sexually-available women into two categories: good women (wives) and bad women (whores). In practical terms, though, by raising a woman's status to that of a temporary wife, mut'a protects some sexually active women from social scorn, while also insuring the legitimacy of any children that might result from their sexual relationships with men.

As Haeri notes, the institution of temporary marriage has been deployed by some Shi'ite clerics to attest to the humane and progressive values of Shi'a Islam.15 Conversely, it has been used by some Sunni clerics to argue for the moral depravity of Shi'ism, and its capitulation to western decadence and sexual promiscuity.16 Toleration of mut'a is an important aspect of Shi'a identity, just as intolerance for mut'a is an important aspect of Sunni identity.17 Although the promotion of mut'a for political ends by religiously conservative Shi'ites may make secular liberals more sceptical of its value, the practice of mut'a can simultaneously serve conservative and progressive political purposes.

Recently, a bill was introduced in the Mexico City assembly that would allow couples to contract a temporary marriage for a minimum of two years. At the end of two years, the couple may renew their marriage or just let the union dissolve.18 The stated purpose of the bill is to unclog the courts, which are inundated with divorce cases. The proposal here is similar to the idea of trial marriage, which has easier exit requirements than no-fault divorce, primarily because the contract expires without either party having to initiate divorce proceedings. Generally this means that the terms of separation are negotiated in more detail in advance, as in a ‘pre-nuptial’ agreement. Temporary marriage contracts might make sense in a number of different cultural contexts. For example, temporary marriage is not only useful as a form of trial marriage, but also in some cases of remarriage. Remarrying partners often have children from previous marriages, and assuming the full bundle of rights and responsibilities in a second or third marriage often limits the rights of children from previous marriages, especially inheritance rights.19 Remarrying and non-procreating partners may not want to exchange the inheritance rights that are part of a traditional marriage, and pre-nuptial agreements can sometimes appear awkward and manipulative. Having a form of marriage available that is temporary, with limited rights and obligations, may be less awkward, especially if it were commonly practiced. Or perhaps civil union status might be adapted for temporary relationships, rather than designed to duplicate much of civil marriage, once civil marriage is made more inclusive.

Temporary marriage in some contexts, like permanent marriage, is a social mechanism that transforms two individuals who are not family into relatives, and historically it has been a mechanism for establishing legal paternity as well. There are many reasons for having a mechanism other than marriage for establishing parental rights and responsibilities, but it is beyond the scope of this article to review all of them.20 My argument is that, when ongoing parental support and cooperation is less interwoven with marriage, then temporary marriages (by design or default) will be less threatening to the wellbeing of children.21 In the 20th century (in industrialised countries), the average lifespan for people who manage to reach age 20 has increased by approximately 16 years.22 Longer lifespans, combined with families having fewer children, mean that adults can expect to live well beyond their childrearing years. As Stephanie Coontz points out, this means that married partners today are expected to make a much longer commitment than in past generations.23 Yet, the pressures that keep couples together when they are raising children diminish when their children leave the home. Divorces rarely happen without as sense of failure, betrayal, and the stigma of a family being ‘broken’ or somehow damaged. Providing the option of temporary marriage might challenge the idea that a marriage must be life-long to be good or successful, or the idea that a family is ‘broken’ when a marriage ends.24

In the documentary Who Gives Kisses Freely From Her Lips (by Simin Farkhondeh, 2009), a female informant explains that she chose a sigheh over a permanent marriage because she has to care for her two younger brothers and a permanent husband might not permit that. Other informants point out that a temporary wife does not need her husband's permission to work or go to school, and she can refuse sex with him. Moreover, if a permanent wife requests a divorce, she may be forced to sacrifice her dower. Although the dower of a temporary wife is smaller, she can collect it when the marriage terminates. Another informant asserts that, while most parents prefer permanent marriages for their daughters, she decided to resist such pressure because she would have more rights and freedom as a temporary wife. While making this documentary, Farkhondeh filmed herself resisting her father's advice not to enter a sigheh. She then ignores his advice and enters a nonsexual sigheh with a male friend who is helping her with her film. At the end of the film and sigheh, she asserts her right to exit their relationship against her friend's wishes, and leave Iran, which would have been significantly more difficult for a permanent wife. But working with this man on her film would have also been impossible if she had not been his temporary wife. The film and filmmaker demonstrate how sigheh can be a tool that enables women in contemporary Iran to pursue their familial and professional aims.

Some feminists may find the idea of temporary marriage attractive, but not in the context of a polygamous society, where men are permitted to have an unlimited number of temporary wives. This gender asymmetrical practice complicates the use of mut'a for feminist goals. In some countries, temporary marriages are conducted in secret,25 much like an adulterous affair, which can threaten the interests of a permanent wife, while offering little social protection and security to the temporary wife. In some societies where polygyny is permitted, feminists have proposed policies that require husbands to obtain approval from existing wives before seeking a new wife, combined with favorable divorce terms for wives who do not approve. In these contexts, the state's regulation and registration of marriage, permanent and temporary, enables the implementation and enforcement of wife-approval policies. Some Muslim feminists are choosing to promote wife-approval of polygyny rather than oppose polygyny outright, which contradicts religious law.

Writing about the 2004 revisions to the ‘Moudawana’, the codes regulating family life in Morocco, Fatima Sadiqi writes,

It secured several important rights for women, including the right to self-guardianship, the right to divorce, and the right to child custody. It also placed new restrictions on polygamy, raised the legal age of marriage from 15 to 18, and made sexual harassment punishable by law. However, it did not completely abolish polygamy, unilateral repudiation of the wife by the husband, separation by compensation (khula), or discrimination in inheritance rules. This was in part because such provisions are explicitly authorized by literal readings of the Koran.26

Sadiqi challenges feminists who hold that adequate progress for women must wait until there is a secular democratic state, and contends that there have been significant achievements in the five years following the reforms. Moroccan women now have better opportunities for education and employment, political participation, and more control over the terms of marriage. While Morocco is not a secular democratic state, in this instance the state's reform and regulation of marriage has substantially advanced women's social and political rights. These advances would not be possible if marriage were privatised or deregulated in this context.

The policy goals that feminists in predominantly Islamic countries are framing with respect to polygyny or temporary marriage are quite reasonable and should be respected by outsiders. Moreover, tolerating and reforming polygamous marriage may have some advantages that feminists in predominantly Christian societies have overlooked.27 Stephanie Coontz examines European attitudes to polygamy and writes, ‘One distinctive feature of Western European marriage was that as early as the twelfth century, polygamy was prohibited. Many men kept mistresses … but mistresses had no legal rights or social standing. By the fifteenth century the children of mistresses had lost the inheritance rights they had had in the early medieval period’.28 In Europe and North America, children born outside of marriage did not gain the rights of support and inheritance held by ‘legitimate’ or ‘acknowledged’ children until the 20th century.29 By contrast, in Arab societies, where polygyny has been combined with temporary marriage, one consequence was that fewer ‘illegitimate children’ were born, as mut'a provided a mechanism for establishing paternity and the responsibilities of support, outside of permanent marriage. The question of whether polygamy, like monogamy, can be reformed (both legally and in practice) to be more gender egalitarian is beyond the scope of this article, but I tend to agree with those who think it can be.30 Indeed, some scholars believe that the historical aversion to polygamy by Europeans stems from its association with Africans and Asians, and other non-Christian peoples, such as indigenous Americans, rather than its alleged oppressive character.31 Rather than disdain cultures, religions, or feminist movements that tolerate polygamy, we should acknowledge that reformers must advocate policies best suited to their societies, and this may mean different marriage reforms in each.32 While greater government regulation may not be suited to each and every feminist goal, having an institution of civil marriage, regulated by the state, ensures that the most widely shared values in a society structure the family, rather than those of a powerful authoritarian minority.

3. Deregulating Marriage

Political theorists who support the disestablishment of the institution of marriage disagree about how the state should regulate the institution of civil union. They disagree about how inclusive civil unions should be (for example, whether they should permit polygamy33 or not34), and also about whether the package of rights and privileges should be standardised or individually negotiated. Their disagreements suggest that the state's regulation only of civil unions, and not civil marriage, does not really give us much guidance about how the state should regulate families and domestic units.

Marriage deregulators have proposed several different strategies for privatising marriage. Alice Ristroph and Melissa Murray propose a contractualist model for disestablishing marriage.35 This involves investing the state only with the authority to enforce privately negotiated marital agreements, and also uphold negative rights, such as the presumptive right to non-interference.36 Mary Shanley criticises this form of deregulation because, she says, ‘while emphasizing the need for liberty in the choice of partners, contractualism fails to give sufficient weight to positive state action to enhance equality and equal opportunity along with liberty and freedom of association’.37 Robin West similarly argues that privatising marriage in this way ‘would not cure the systemic injustice within or around marriage, but rather, would aggravate it … Marriage would lose its “public” and “public law” dimension, and intimate life would lose whatever fragile status it now has, by virtue of marriage, as a domain of life that ought to be made just. Shrouded in the privacy that contract law so exquisitely protects, injustice within individual marriages would become next to impossible to even articulate, much less address’.38 Both Shanley and West point out that private marriage contracts are likely to be relatively impervious to the influence of widely shared public values in ways that reinforce unjust social inequalities. Amatai Etzioni also argues against contractualism: ‘Above all the commitment is not contractual but open ended … No one in her right (‘rational’) mind would stick to a contract when the other partner has advanced cancer, AIDS, or dementia …’.39 Etzioni, like other theorists in the marriage debates, points out that marriage is not merely a contract but a bond of social solidarity. The state supports this bond by facilitating a mutual exchange of rights and also by conferring benefits, such as tax relief, immigration preference, and testimonial privilege.

Etzioni does not support the deregulation of civil marriage, but rather making civil unions ‘available to both gays and heterosexuals who want to signal a different form of commitment than traditional marriage’.40 Yet, because Etzioni supports more inclusive access to civil unions, but not civil marriage, his position is open to the charge that ‘separate is not equal’. To get around the problem of the inequality implied by having separate legal statuses, however comparable, Andrew March argues for eliminating civil marriage and keeping only civil unions. He writes,

[T]he most justifiable policy on liberal grounds is not the institution of ‘marriage’ increasingly open to new constituent relationships but rather a universal ‘civil union’ status which fulfills the social and moral aims behind recognizing and subsidizing the family but is entirely neutral not only to the gender or even to the numbers of the partners, but also to the affective and emotional content of domestic life and the purposes behind contracting domestic partnerships.41

Some advocates for privatising marriage allege that the primary social and moral aim behind the state's support for families is promoting private caregiving and relieving taxpayers of the burden of caring for children and other dependent citizens.42 March's proposal aims to accomplish two aims: creating a policy by which the state supports private caregiving, but without regulating sexual or emotional intimacy among adult partners.

Elizabeth Brake argues against this form of deregulation for the following reason:

Abolishing marriage might seem to achieve equality by placing everyone in the same legal position. However, this would cede control of this still socially powerful institution to the churches and other private sector groups. … Abolition would allow private sector providers to deny entry, whereas reform would send an unequivocal message of equal citizenship.43

Brake argues that extending marriage, with its powerful symbolism, is one way to address past discrimination against lesbians, gay men, and others. However, she modifies her position by claiming that, if past discrimination could be addressed by other means, such as with a public apology or reparations, then retaining the term ‘marriage’ would not be necessary. But without such means, Brake proposes keeping ‘marriage’ and removing all restrictions on the gender or number of the spouses, the affective or sexual relationship(s) between or among them, or the rights they exchange. Moreover, individuals would be free to divide up their bundle of rights and exchange smaller bundles with different partners. Brake calls this more inclusive institution ‘minimal marriage’. Minimal marriage, though, seems to collapse into a form of contractualism, and therefore is subject to the problems mentioned by Shanley, West, and Etzioni. If individuals can privately negotiate different bundles, how do we protect weaker parties from signing unfair contracts? Moreover, if individuals can negotiate different bundles with different partners, to which bundle does the state add the rights of immigration preference or testimonial privilege?44

The proposal to eliminate civil marriage and replace it with a universal civil union status is quite ingenious and has many advantages. First, by revising state policies to focus on caregiving units rather than marital relationships, the state advances its legitimate interest in insuring that dependent citizens receive care and nurture while remaining neutral, as March points out, to the sexual or emotional character of the relationships among domestic partners. Second, by licensing a wide range of caregiving units, the state treats families that are differently structured equally. Households headed by a heterosexual couple would be equal under the law to those headed by a same-sex couple, platonic friends who are caring for each other or mutual dependents, single-parent households, and so on.

Unfortunately, as I have indicated, this proposal has some serious problems. The main problem is that ‘privatising’ marriage will not cause it to disappear but will leave marriage to be regulated by private institutions, especially religious and ethnic ones, as West and Brake point out. For centuries, marriage has served as a powerful social mechanism that transforms people unrelated by ‘blood’ into relatives, and it is unclear that the state's conferral of civil union status will transform household members into relatives. In other words, marriage confers the social authority to use the familial terms ‘husband’, ‘wife’, ‘spouse’, ‘brother-in-law’, and so on, when referring to one's partner and the latter's relatives. These are important cultural privileges that will not necessarily be transferred to new terms and government institutions. If marriage is privatised, then many households and larger extended family units will be structured and governed by private marriage customs and terms now freed of state regulation. Where private marriage customs and terms exist in tension with widely shared public values, such as those that subordinate women and limit their opportunities, privatising and deregulating marriage will curtail the government's ability to promote gender equality within families structured by marriage. In other words, privatising marriage will give private organisations, including inegalitarian ones, more influence over the culturally powerful institution of marriage, without giving those individuals negatively affected much protection by having access to civil union status. If married partners civilly unite for the purpose of obtaining state recognition and support, the culturally entrenched terms of their privately contracted marriage are likely to take precedence over the formal rights they receive from the state.

Those advocating for privatising and deregulating marriage are operating with too narrow a definition of the state's (and society's) interest in recognising families. The moral and social purpose behind the state's support includes facilitating bonds of social solidarity and support, but it also includes facilitating bonds that respect the equality and wellbeing of all involved. While the state can prohibit abuse within families by means other than the regulation of marriage — i.e. by prohibiting all forms of sexual and physical assault, involuntary servitude, child abuse, and so on — the state can only shape the terms of marriage by regulating civil marriage and not by regulating civil unions. These terms involve the duties and privileges assigned to spouses, and the terms of dissolution. If the state were to regulate only civil unions and eliminate civil marriage, we are likely to see an expansion of gender inegalitarian marriages that deny women the opportunity to fully participate in society, even if such marriages avoid illegal conduct, such as statutory and other forms of rape, and nonconsensual contracts. We should not forget that the public regulation and reform of marriage for the past several centuries has led to profound social changes in the status of women in many countries, including the removal of ‘head and master’ laws, the right of married women to own property in their name, increased protection against domestic violence, and laws prohibiting credit and employment discrimination against married women.

In Untying the Knot, Tamara Metz argues that marriage, like religion, involves a complex social institution that shapes our understanding of the world and who we are. Marriage pre-exists and transcends any legal contract in that those who enter it participate in an institution whose values and rituals are shaped by an external community. The demands of marriage, often articulated by community authorities, are experienced as ethical commands. According to Metz, the liberal state should not appropriate the ethical authority to define this institution via marriage law, for by doing so the state illegitimately assumes extralegal control over competing belief systems essential to a free society. Instead, the liberal state should pursue its legitimate public welfare goal of promoting private caregiving by creating a civil status for this purpose. Accordingly, Metz proposes that the state regulate ‘intimate caregiving unions’45 and extend positive rights to them, and let the social institution of marriage be defined and regulated by non-state agents, whose different conceptions of marriage should be allowed to evolve and compete without state interference.46

Metz's argument could be applied to schooling. Schooling, like religion, involves a complex social institution that shapes our understanding of the world and who we are. Schooling pre-exists and transcends any state mandate or bureaucratic system, in that those who enter school participate in an institution whose values and rituals are shaped by an external community. The demands of schooling, often articulated by community authorities, are experienced as ethical commands. On Metz's view, the liberal state should not appropriate the ethical authority to define this social institution via public schools, for by doing so the state illegitimately assumes extralegal control over competing belief systems essential to a free society. Instead, the liberal state can pursue its legitimate public welfare goals of promoting the private instruction and intellectual development of children by licensing, let's say, ‘instructional centres’. In this way, the social institution of ‘the school’ would be defined and run by non-state actors, such as religious and other private schools, and ‘home schools’.

Privatising schools and creating public instructional centres would allow public values to determine whether instructional centres include creation science or sex education in their curriculum or allow children of different genders to study together. Conversely, privatised schools could operate according to their own values. If we follow Metz's reasoning, the state should not adjudicate competing worldviews by controlling the social institutions attached to the ‘m-word’ or ‘s-word’.47 These words are saturated with cultural significance so that the terminological struggle is not just a superficial one, but a legitimate argument over preserving ways of life. Instead of suppressing this argument, the state can create secular ‘instructional centres’ and provide positive benefits to those who enrol in them, while letting private civil groups define the institution of the school.

So why not disestablish the institution of schooling and remove all state control over schools, in a manner similar to proposals for deregulating marriage? Families could then choose between private schools free of all public oversight or publicly supported and run instructional centres. While toleration of competing belief systems and worldviews is essential in a free society, it is also true that having some shared knowledge of the world is essential for democratic government. Students who attend only private schools might be denied some forms of knowledge essential to their ability to participate fully in their society and essential to protecting their health and wellbeing. By having publicly regulated, inclusive systems of marriage and schooling, the state effectively pursues its legitimate goal of promoting the nurturance and development of citizens who have the capacity for equal democratic participation.48 Having public schools and civil marriage means that we often need to confront people with worldviews significantly different from our own, rather than retreat to separate institutions. But such confrontations are a reasonable cost of living in a diverse democratic society.

One of the problems with proposals for replacing civil marriage with a more inclusive civil union status is that the eligibility criteria, by design, are very loose. Though they are meant to support various kinds of intimate caregiving, among adults and across generations, they overlook the fact that most forms of intimate caregiving are temporary. Children grow up and parents and grandparents die. Adults grow apart, emotionally and socially. The amount of our lives we spend providing primary care for other people, other than long-term disabled family members, is relatively short. This means that civil unions for intergenerational primary caregiving and households are likely to be short too. Will our courts become clogged with requests to create and dissolve civil unions, even more than they are now with marriage? We could try to tighten the eligibility criteria, but whom would we exclude? If civil unions were, on average, less stable than civil marriages, would this become a public concern? Will the instability of these unions result in calls to return to traditional marriage or move us more quickly to a future in which informal cohabitation is legally and socially indistinguishable from marriage?

Marriage offers a huge bundle of rights and responsibilities. Civil unions among different kinds of caregiving partners — e.g. lovers, co-parents, and Platonic friends — will require individuals to pick and choose among these entitlements and duties. After all, how many caregivers really want to become responsible for their parents’ or adult children's debts, or those of their siblings or roommates? Parents and children, including adopted children, under our current laws, already have many of the ‘next-of-kin’ or family rights we would want them to have, and thus single parent families have little need to enter a formal civil union or intimate caregiving contract. These include inheritance rights, immigration rights, visitation rights, sharing health insurance and social security benefits, and so on. In other words, in many cases these contracts would be redundant. However, unmarried co-parents are not recognised as family, and the solution to this is not to force them to marry, cohabitate, or civilly unite, but to cooperate constructively through co-parenting agreements, specifying the rights and responsibilities of each. Co-parenting often is a life-long relationship, whether one is providing primary care for one's children or not. If co-parents stay involved in the lives of their children, then ongoing cooperation is needed even when their children become adults. Mundane issues, such as coordinating holiday visits or sharing the cost of a grandchild's tuition, require life-long cooperation. So the focus of the state's interest in the family should not simply be recognising nuclear households that coordinate primary care among their members, but also fostering long-term cooperation among co-parents, many of who will never be ‘domestic partners’. Furthermore, the state's interest in promoting private caregiving between adults need not take the form of promoting life-long or long-term monogamous commitments between two people.

Because of the cultural meaning of marriage, persons who are not in a marriage-like relationship are not likely to either desire civil marriage, if they could obtain most of the legal benefits by other means, or stay married when they are no longer emotionally and sexually intimate.49 But people who are in marriage-like relationships are typically willing to assume the responsibilities of legal marriage, such as debt and asset sharing, and therefore a single, fair bundle of rights and duties can be offered to all. This bundle for marriage-like relationships should be negotiated through public decision-making, and not by private parties each armed with their own legal advisors. If marriage were reformed to be more inclusive and just, recognising a diversity of marriage-like relationships among adults, then domestic partner and co-parenting agreements could be developed to provide alterative ways for adults who are not in a marriage-like relationships, but who are coordinating primary care for each other or for children, to obtain some of the practical rights and benefits of marriage without all the symbolism and social meaning of marriage. By contrast, if we replace civil marriage with civil union in order to get the state to recognise a diversity of family forms, including co-parents and cohabitating adults not in marriage-like relationships, then civil unions will need to be flexible to the point that they will be indistinguishable from privately negotiated contracts. A system of privately negotiated contracts will sacrifice many of the egalitarian ends that marriage privatisers are seeking.

Although the proposal to privatise marriage is less progressive than it may first appear, my proposal to separate marital and co-parenting agreements does involve significant social change. This proposal challenges the longstanding notion that, ideally, parents should be married or in a marriage-like relationship. Alice Ristroph and Melissa Murray have questioned whether the state should use its coercive power to promote childrearing by couples that are married. They write, ‘marriage historically has been a conduit to family formation, as law channelled individuals (and their sexual behaviour) into marriage, and from marriage into coupled parenthood.’50 The state's preference for having married couples do the job of childrearing rests on a number of assumptions, including the assumption that children represent the telos of romantic-sexual love, and that children are best cared for by their biological parents. There is a further assumption that fathers must be tethered to the mothers of their children through marriage (given the short life of romantic love) so that they can economically and socially support both. If we reject idea that women inevitably need men to support them, and replace it with the gender neutral presupposition that enduring adult economic and social support is necessary for the welfare of children, and often beneficial to the welfare of adults, then the state should enable and encourage adults to make enduring commitments to their biological or adoptive children, while also in different ways enabling adults to make commitments to each other. Not all children are the products or expression of mutual and enduring romantic-sexual love. Fortunately, mutual and enduring love between parents is neither necessary nor sufficient for good childrearing. What is necessary is a commitment among parents to cooperate in ways that serve the best interests of their children. There is really no good reason for the state to prefer that childrearing be done by married parents, given that non-married parents can do an equally good job, and given that many co-parents do not wish to be married to each other.

Currently co-parents (married and unmarried) typically rely on informal agreements and terms of shared responsibility that they manage to work out between them. When they can't reach an informal agreement, they have the option of initiating a civil lawsuit (e.g. sue for divorce, or for custody and child support). Historically, the lion's share of responsibility for primary childcare has been assigned to women. But the assumption that women will take on a disproportionate amount of this primary care is no longer fair or reasonable. Without this assumption, new understandings need to be worked out, preferably before co-parents become adversarial. The state need not promote permanent marriage to facilitate cooperative schemes of co-parenting. It is not an effective anti-poverty measure in many cases, and it often does not promote the welfare of children. But when people choose to marry, in most cases they will be better off if the terms of marriage and divorce are publicly negotiated.

In the future, marriage may no longer be the socially preferred mechanism for creating new family ties or obtaining particular social rights and privileges.51 I have tried to show that, as long as a significant segment of society participates in this institution, marriage reform will be an important part of many agendas for social justice. In addition, until this institution recedes farther into the margins of society and human history, having marriage subsumed under our civil laws and practices is an important public tool for promoting equality and happiness. Moreover, the state can and should devise new instruments, such as co-parenting agreements and domestic partnerships, in order to advance legitimate public interests — most importantly, the protection of children and facilitating bonds of social solidarity among a diversity of domestic units. All of these strategies should be pursued, instead of legislating for one solution for all families or societies.52

Notes

  1. 1

    See Cass Sunstein & Richard Thaler, ‘Privatizing marriage’, The Monist 91,3–4 (2008): 377387; Brook Sadler, ‘Re-thinking civil unions and same-sex marriage’, The Monist 91,3–4 (2008): 578605; Martha Fineman, ‘Why marriage?’ in M. Shanley (ed.) Just Marriage (Oxford: Oxford University Press, 2004), pp. 4651; Mary Shanley, ‘Afterword’, in M. Shanley (ed.) Just Marriage (Oxford: Oxford University Press, 2004), p. 112; Tamara Metz, Untying the Knot: Marriage, the State, and the Case for Their Divorce (Princeton, NJ: Princeton University Press, 2010); Lisa Duggan, ‘Holy matrimony!’ in L. Duggan & N. D. Hunter (eds) Sex Wars (New York: Routledge, 2006), p. 227; Andrew March, ‘Is there a right to polygamy? Marriage, equality and subsidizing families in liberal public justification’, Journal of Moral Philosophy 8,2 (2011): 244270. Nancy Cott writes, ‘This alteration in the relation between marriage and the state might be called “disestablishment”, if the term can be borrowed from the history of religion’: N. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), p. 283.

  2. 2

    For much of history, marriages were not regulated by the state, or even by religious authorities. According to Stephanie Coontz, some European states begin to set terms for the legal recognition of marriage in the 16th century: S. Coontz, Marriage, A History: From Obedience to Intimacy or How Love Conquered Marriage (Harmondsworth: Penguin, 2005).

  3. 3

    Shahla Haeri, Law of Desire: Temporary Marriage in Shi'i Iran (Syracuse, NY: Syracuse University Press, 1989), p. 75.

  4. 4

    Arthur Gribetz, Strange Bedfellows: Mut'at al-nisã’ and Mut'at al-hajj (Berlin: Klaus Schwarz Verlag, 1994), pp. 9193, 143–44.

  5. 5

    Gribetz op. cit., pp. 6, 14–18, 56–9, 82–3, 171–5. See also http://www.al-islam.org/encyclopedia/ Chapter 6a ‘Temporary marriage in Islam’.

  6. 6

    Gribetz op. cit., pp. 9, 93–105; Haeri op. cit., pp. 24, 51–60, 89–95.

  7. 7

    Haeri op. cit., pp. 3348, 60 (Haeri describes a nikah as a contract of ‘sale’, while a mut'a is a contract of ‘lease’.)

  8. 8

    Encyclopedia Iranica, http://www.iranicaonline.org/articles/mota I am grateful to Mairaj Syed for suggesting this source.

  9. 9

    Haeri op. cit., Preface, x.

  10. 10

    Haeri op. cit., p. 96.

  11. 11

    Encyclopedia Iranica, http://www.iranicaonline.org/articles/mota; see also Gribetz op. cit., p. 178.

  12. 12

    Elaine Sciolino, ‘Love finds a way in Iran: “Temporary marriage” ’, New York Times, 4 October (2000). Available at: http://www.library.cornell.edu/colldev/mideast/tmpmrig.htm

  13. 13

    Sciolino op. cit.

  14. 14

    Haeri op. cit., pp. 99100

  15. 15

    See also Gribetz op. cit., p. 178.

  16. 16

    See, for example, http://www.dailymotion.com/video/xctzgw_the-shia-conspiracy-mut-ah-part-2-4_shortfilms; http://www.dailymotion.com/video/xctzq7_the-shia-conspiracy-mut-ah-part-3-4_shortfilms; http://www.dailymotion.com/video/xctzut_the-shia-conspiracy-mut-ah-part-4-4_shortfilms

  17. 17

    Gribetz op. cit., pp. 158, 171.

  18. 18

    I am grateful to Kristi Olson for bringing this bill to my attention. For some news stories, see http://digitaljournal.com/article/312425; http://www.cbc.ca/news/world/story/2011/09/30/mexico-two-year-marriage.html

  19. 19

    In a typical mut'a arrangement, children inherit from parents, but parents do not inherit from each other or assume responsibility for a spouse's children from other relationships. For an interesting film that explores the pros and cons of temporary marriage, see The Other Wife (Zané Dovom).

  20. 20

    For an interesting discussion supporting consensual paternity, regardless of a man's married status or biological role, see Elizabeth Brake, ‘Fatherhood and child support: Do men have a right to choose?’, Journal of Applied Philosophy 22 (2005): 5573. Ristroph and Murray discuss cases in which unmarried fathers are deprived of fatherhood rights: op. cit., pp. 1254–55.

  21. 21

    Daniel Nolan speculates that the practice of temporary marriage, in which a marriage can expire without a divorce, may be easier on children than a ‘permanent’ marriage that ends with a traumatic divorce: ‘Temporary marriage’, unpublished manuscript, pp. 20–2.

  22. 22

    Scott Coltrane & Michele Adams, Gender and Families, 2nd edn. (Lanham, MD: Rowman and Littlefield, 2008), pp. 210211. Also see http://www.cdc.gov/nchs/fastats/lifexpec.htm. I am grateful to Peter Singer for this reference and also for pointing out that the relevant statistic is increase in adult lifespan, not lifespan from birth.

  23. 23

    Coontz op. cit., p. 268.

  24. 24

    Daniel Nolan makes three broad arguments in favour of state recognition of temporary marriage in liberal democratic states: the presumption in favour of equal treatment unless there is a good reason justifying unequal treatment, equal respect for different religious and ethnic practices, and the practical benefits to participants: unpublished manuscript, op. cit.

  25. 25

    Corinne Fortier, ‘Women and men put Islamic law to their own use: Monogamy versus secret marriage in Mauritania’, in Margot Badran (ed.) Gender and Islam in Africa: Rights, Sexuality, and Law (Washington, DC: Woodrow Wilson Center Press, 2011), pp. 213231.

  26. 26

    Fatima Sadiqi, ‘Five years after the new Moroccan Family Law’. Available at: p. 2, http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCIQFjAA&url=http%3A%2F%2Fwww.mena2010wjp.org%2Fwp-content%2Fupload%2F2010%2F09%2FFive-Years-after-the-new-Moroccan-Family-law.doc&ei=WRRfUNHZL8Kg2gW25oCgDg&usg=AFQjCNGGZ9Sg56pnaL3Zk-HfI4M6AJkEZQ&sig2=xK28HLqznqNSvvcytlnkeQ [accessed on 22 September 2012].

  27. 27

    Cheshire Calhoun has argued that our ‘failure to extend civil marriage to plural marriages leaves [wives] unprotected by marriage and divorce law’. Informal ‘wives’ are often more trapped, because they are not legally entitled to alimony or a fair share of joint property: Cheshire Calhoun, ‘Who's afraid of polygamous marriage? Lessons for same-sex marriage advocacy from the history of polygamy’, San Diego Law Review 42 (2005): 10231042, at p. 1041.

  28. 28

    Coontz op. cit., p. 124.

  29. 29

    Before the 1960s, according to Stephanie Coontz, children of unmarried parents not only could not inherit from their fathers, but ‘even the relationship between an unwed mother and her child was not protected by law. An illegitimate child could be taken away from its mother and given up for adoption. If the mother kept her child, their relationship did not have the same legal rights as her relationship with a child she bore while married’: Coontz op. cit., p. 257.

  30. 30

    For those who believe that polygamy could be reformed, like monogamy, to offer formally equal rights to all parties, see Calhoun op. cit.; Elizabeth Emens, ‘Compulsory monogamy and polyamorous existence’, in M. Fineman , J. Jackson & A. Romero (eds) Feminist and Queer Legal Theory (Burlington, VT: Ashgate Publishing Company, 2009), pp. 259285; March op. cit.; Metz op. cit.; Elizabeth Brake, ‘Minimal marriage’, Ethics 120,2 (2010): 302337. Stephen Macedo points out that, given the greater prevalence of polygyny worldwide, legal polygamy would mostly license polygynous households structured by gender inequalities. ‘The constitution and the future of marriage’, lecture delivered on 3 May 2012, Princeton University James Madison Program.

  31. 31

    Alice Ristroph & Melissa Murray, ‘Disestablishing the family’, Yale Law Journal 119 (2011): 12731274, at p. 1263. According to Nancy Cott, Montesquieu's writings, ‘initiated what became a formulaic Enlightenment association of polygamy with despotism. The harem stood for tyrannical rule, political corruption, coercion, elevation of the passions over reason, selfishness, hypocrisy — all the evils that virtuous republicans and enlightened thinkers wanted to avoid. Monogamy, in contrast, stood for a government of consent, moderation, and political liberty’ (Cott op. cit., p. 22).

  32. 32

    On the importance of taking a comparative approach and analysing women's political agency within particular cultural and historical contexts, see Fatima Sadiqi, ‘Facing challenges and pioneering feminist and gender studies: Women in post-colonial and today's Maghrib’, African and Asian Studies 7 (2008): 447470.

  33. 33

    See Calhoun op. cit; Emens op. cit.; March op. cit.; Metz op. cit.

  34. 34

    Sunstein & Thaler op. cit.; Thom Brooks, ‘The problem with polygamy’. Available at: http://newcastle-uk.academia.edu/ThomBrooks/Papers/89095/The_Problem_of_Polygamy [accessed on 29 October 2011].

  35. 35

    Ristroph & Murray op. cit.

  36. 36

    Ristroph and Murray recognise a number of dangers in privatising marriage, including, they write: ‘given the association of private contract with private economic relationships, to view families as contracts may further entrench the norms of financial insularity’: op. cit., p. 1275.

  37. 37

    Shanley op. cit., p. 6.

  38. 38

    R. West, Marriage, Sexuality, and Gender (Boulder, CO: Paradigm Publishers, 2007), pp. 203204. By contrast, although Ristroph and Murray recognise the risks of shielding ‘illiberal families’ and encouraging ‘the development of illiberal ideas’, they think the risks are worth taking: op. cit., pp. 1271 and 1279.

  39. 39

    A. Etzioni, ‘A communitarian position for civil unions’, in Just Marriage, op. cit., p. 64; Robin West makes a similar proposal, ‘Rather than push for an expansion of marriage, so as to include gays and lesbians, push instead for an expansion of civil union, so as to include both nonconjugal unions and straight couples that opt for it. … Civil union, expanded for all, would give us a way to have a constructive and local conversation about the point of intimate association, and the basis for the state's interest’: op. cit., p. 218.

  40. 40

    Etzioni op. cit., p. 65.

  41. 41

    March op. cit., p. 11

  42. 42

    See especially Fineman op. cit. and Metz op. cit.

  43. 43

    Brake op. cit., p. 187.

  44. 44

    This question was raised by Elizabeth Emens on a panel with Brake and myself, sponsored by the Society for the Philosophy of Love and Sex at the American Philosophical Association Meetings, 4 April 2012, Seattle, WA.

  45. 45

    Metz op. cit., p. 134.

  46. 46

    Metz op. cit., Chapter Five, ‘The case for disestablishing marriage’, pp. 113151.

  47. 47

    I am borrowing the ‘m-word’ expression from Metz op. cit., pp. 87 and 93.

  48. 48

    The importance of the family in shaping our earliest understandings of social justice and fairness has been argued by many feminists, but especially by Susan Moller Okin (Justice, Gender, and the Family (New York: Basic Books, 1989)).

  49. 49

    In the ‘Future of Marriage’, Stephen Macedo questions whether non-romantically involved partners would want to be ‘married’. Presented at the Fall 2011 Princeton University Law and Public Affairs Retreat.

  50. 50

    Ristroph & Murray op. cit., p. 1252.

  51. 51

    Coontz op. cit., p. 272. See also, Pew Social & Demographic Trends, 14 December 2011. Available at: http://www.pewsocialtrends.org/2011/12/14/barely-half-of-u-s-adults-are-married-a-record-low/

  52. 52

    I am grateful to Princeton's University Center for Human Values, and to Stephen Macedo, Kinch Hoekstra, George Sher, Karl Schafer, Kristi Olson, Peter Singer, Larry Temkin, Pablo Gilabert, Arzoo Osanloo, Kim Scheppele, Alan Ryan, and Daniel Nolan for providing helpful comments on an earlier draft of this paper. The Philosophy departments at the University of Florida, Arizona State University, and University of Miami, as well as the Canadian Centre for Ethics in Public Affairs, and the Gender Studies Program at the Central European University provided opportunities to present this work and get much valuable feedback. Some of the ideas in this article first appeared in The New York Times Philosophy Series, ‘The Stone’: http://opinionator.blogs.nytimes.com/2012/11/04/the-end-of-marriage/

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