One of the many interesting points Tamara Metz makes in her book Untying the Knot: Marriage, the state and the case for their divorce is that liberal thinkers have been surprisingly unconcerned about the relationship between marriage and the state. While many have written about relations between individuals within a marriage – Mill most famously – they have generally accepted that the state has a legitimate role in regulating marriage.
Metz think this is a mistake, from a liberal point of view. Marriage is like religion, something of deep cultural and emotional meaning, but on which there are widely differing and strongly held views. While almost all cultures have marriage as an institution, some insist on monogamy while others allow polygamy, some make divorce difficult and others easy, some allow gays to marry while most see marriage as between a man and a woman.
Liberals have dealt with religious disputes by requiring the state to keep out of them, and Metz believes this provides a model for how the state should treat marriage. It should not be in the business of trying to give particular cultural meanings to people’s relationships. Just as liberals do not supported ‘established’ religion, they should favour disestablishing marriage.
Metz does not, however, support the libertarian view that private contract replace legal marriage as we now understand it. She sees a legitimate government role in fostering caregiving and intimate relationships and dealing with the consequences of their breakdown. While I perhaps mistakenly saw marriage as necessary to that goal, in the past I have been sympathetic to this broad view. I don’t think the law of contract would systematically foster the kinds of open-ended, long-term relationships that family law does now. But there can be laws which promote long-term relationships and the different things the parties bring to them without taking on the cultural controversies of marriage.
While the idea of disestablishing marriage appeals in principle, I wasn’t quite convinced by Metz’s book that something important wouldn’t be lost in the transition. As she observes, marriage is important because of its authority – it adds something of value to a relationship in the eyes of the parties, the community, and the law.
For religious people, religious institutions can provide that authority, as they did exclusively in the past and have in a supplementary way since the state began regulating marriage. But where will that authority come from for non-religious people? With more than 60% of Australian couples already choosing civil celebrants for their weddings, this is no minor matter.
Metz reports on various ways in which American couples have engaged in DIY means of giving their relationships public recognition, such as friends getting instant ordination through the Universal Life Church or Ethical Society weddings. Perhaps over time alternatives to state or religious weddings would gain authority. But even as someone normally sceptical of the state, I feel that more authority comes from a state-sanctioned celebrant than someone ordained over the internet.
Metz’s book seriously challenged my own thinking on this subject, but I am not yet quite convinced that causes like gay marriage should be abandoned in favour of pushing for marriage to be entirely disestablished.
Andrew Norton 
When my wife and I went to meet our celebrant at her office, she had a book on her desk called “Psychic Abilities in Animals.” That didn’t give her a great sense of authority in my eyes!
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In contrast I have been to three weddings in the US where a close friend of the bride and groom was a “Universal Life Church” celebrant. They were by far the best ceremonies I have attended, much more meaningful than any with a priest or celebrant who has spent half an hour meeting the couple, memorising a few facts about them.
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I think the role of ceremonies and marriage in particular is over-hyped (hence I don’t see why the government does them). If you look at countries with low marriage rates (like the Scandinavian ones), the effect it has on society seems to be pretty negligible, as people still form couples, have children etc. — There are much bigger effects that are worth thinking about if you are worried about those issues and their effect on society. In addition, it seems to me that once you have a lot of “couple” laws like Australia does, where you get legal partner status foisted upon you simply by being together for a certain amount of time, then marriage is far less relevant since you end up with a very similar legal status.
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While the distinctive legal character of marriage is much diminished, the ceremony itself does still seem culturally important to many if not most people – which is why we are having the gay marriage debate, and the ceremony has been a key issue between the ACT and federal governments.
I was interested in Bruce T’s comments. While private ceremonies can be powerful events – as celebrations of anniversaries and other special occasions can be – do they have the same gravitas as a ceremony with a major public institution behind them (whether church or state?).
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I’m a Christian and marriage is a sacred sacrament of the church, and the church has been a round a hell of a lot longer than the Australian state. Thus, in my eyes, the Church owns the term ‘marriage’. It has the IP!
States can come and go and can enact their laws. However, in practice, states are just borrowing the term of the church. So whether ‘marriage’ has any bonus legal rights, or is termed a different way, I would still be married as part of the church, and that’s what holds importance to me.
That said, I agree that a state recognized marriage has some merit. But if the definition between a state and a church wedding broadens to deeply, then I would fully fully support the Church if it wanted to go it alone – have weddings that are not What i was disappointed in this post, was that there was very little recognition of the practical benefits of an official marriage. In just about all statistics men, women and children all do better in marriages versus any other relationship form.
On a very final note, and I understand that this may be a little self-serving, but it always amuses me to see aethiests, agnostics, lesbians and other all sorts, try to replicate Christian ceremonies to give their own relationship and stages in life some sort of extra meaning. e.g. naming ceremonies instead of baptisms, formal civil ceremonies in boutique gardens instead of a church. I know it’s a little harsh, but someone should tell these people to give it up. It’s about a genuine as a watch a from Bali.
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“In just about all statistics men, women and children all do better in marriages versus any other relationship form”
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No they don’t. Depending on what stage of life people are at, women do worse (although it’s hard to get rid of all the confounding factors, so I wouldn’t bet my life on that data).
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“which is why we are having the gay marriage debate”
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My impression is that a lot of gay people want to be married by the State because they think that if the State happens to marry people, they should be allowed to as well, so it’s an equal rights thing, versus them thinking that the State should allow them to be married for some great cultural reason. If the State didn’t have anything to do with marriage, this debate would be entirely different.
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Yes Rudy of course because no one ever engaged in companion relationships until those intolerant swarthy desert wandering tribes came along and invented Judeo-Christianity. Ancient Rome? Ancient Greece? Persia? Ancient China and India – no one ever got hooked up in those places until people started worshipping some arab who got nailed to a cross.
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Andrew, as a person who was married once, and then had far more successful relationships with different people without being married, I don’t see any benefit for me in being married, other than what is foisted upon me. by the state. As you say, marriage is like religion – an outdated attempt control the populace by regulating who can have sex with whom. Marriage has no cultural or emotional meaning for me, and as my wife is from a different culture entirely it has a very different meaning for her anyway. OTOH, the commitment between us is entirely real and meaningful, and we changed our relationship status on Facebook to demonstrate that :-). Our friends Liked it.
You say that marriage is important because of its authority, but what sort of view is that for a liberal? I personally don’t need any authority (or gravitas) to approve of what I do. My relationship with my wife is a privately negotiated contract :-). In fact, I would feel discriminated against if I was required to be legally married to my wife for any reason. So far that hasn’t happened. I agree with Rudy – it’s ridiculous that people should hold these fake ceremonies mimicking the religious ones. It’s because they don’t have the cojones to act in accordance with their beliefs when it’s against tradition.
OTOH, I agree that if we were to receive benefits from the state in order to promote our stable relationship, e.g. income splitting would be nice, I agree we would need to provide some information to the state to justify that. As that’s purely a financial matter, I wouldn’t like to call that a marriage. Also, who I’m having sex with shouldn’t change my taxation situation, whether that person is male or female. “Marriage” is a word which has an awful lot of implications which I don’t believe are relevant any longer.
I think your misgivings are due to your conservative streak. Please don’t make the classical liberal mistake of confusing your conservatism with your liberalism.
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I will generalize, but I’m looking at the common case rather than any number of possibly but uncommon alternatives.
Really the government can’t easily keep out of something that comprises a significant financial contract.
Unfortunately marriage as an institution is these days mostly necessary to protect women and children. It means that their “partner” can’t just abandon their financial responsibilities (all other responsibilities are much harder to enforce). I know relationships should be all about trust, etc… but history tells us that there are lots of people who will abuse that trust and treat other people badly if they can get away with it.
De facto status do this I hear you say. That is sort of true. However they don’t give certainty. They require time periods to be valid. It is much easier to weasel out of eg. “no we were just housemates”.
Paternity tests mean that you have to have kids or they don’t apply.
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John – In a marriage you choose to take on obligations, and in that context liberals have no difficulty with ‘authority’. We often take on constraints or obligations that allow us to achieve larger goals.
The more complex area for liberals is the widespread legal deeming of relationships to be de facto marriages. I have argued in the past against this as people may have good reasons for wanting a different kind of relationship. On the other hand I can see the public policy reasons for protecting parties to the relationship (usually women in practice) who make decisions in the interests of the relationship that leave them more vulnerable if it breaks up some time in the future.
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The Church has only been in the marriage business for about 1000 years. Well I suppose 1000 years is a long time but for the first 1000 years of its life the (Christian) church wanted nothing to do with marriage; indeed frowned upon marriage (married people being devoted to each other, rather than the church).
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“Unfortunately marriage as an institution is these days mostly necessary to protect women and children. It means that their “partner” can’t just abandon their financial responsibilities (all other responsibilities are much harder to enforce)”
I’m not sure that’s correct — at least in terms of children and money, it’s one area where you do have reasonable levels of protection no matter what your marriage or relationship status (basically, if you have them, you will be legally obliged to pay for them, even if you have no access to them at all, and this can be taken straight out of your pay packet). I believe that having children also will get you around the “wait 2 years before the government classifies you as defacto” status (I imagine this is why it’s worded to allow exceptions), and it will also get you around having to divide up what you earnt in that time 50/50 (i.e., if you keep the children, you can claim on your ex-partners assets even before the relationship started, and you can claim the “fair” split of income generated is only fair if most of it is yours).
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Should marriage be disestablished?
Before anyone thinks the worst, no, I’m not getting divorced, separated or any of that. I’m a happily married (one time) dude.
Men should NOT get married and shouldn’t even go close to ever contemplating it. If I had my time again I wouldn’t either. The risks and the financial burden placed by courts on men are so onerous that the mere thought of marriage ought to discarded as a nightmare. The risk of a failed marriage are far too high which is when the trouble starts.
Fathers are treated like dirt by the courts and most often stripped of their possessions.
From a risk perspective don’t ever get lulled into marriage.
And the argument that conservatives make that marriage is a cherished right, particularly Christians is an abomination.
How could any legitimate Christian tell a young man .. in fact encourage … to marry when the laws are stacked against males is shockingly blind.
marriage is a state sanctioned noose. There is very little religious value in it and if religious people had really thought about it they would be repelled or should be repelled at what they are supporting.
The risk that a marriage will fail is 50%. On some studies close to 90% of all marriages end as a result of a woman calling an end to it. These are not risks that should be looked at lightly. In other words proper risk management by any man should tell them not to ever go near that so-called institution.
I also can’t understand how gay men would want to go near it especially with the sort of socialist re-distribution laws that are now practiced in divorce.
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” I also can’t understand how gay men would want to go near it especially with the sort of socialist re-distribution laws that are now practiced in divorce.”
Though at least gay men won’t make the financial mistake of marrying a woman:)
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@Rudy
I’m a Human and marriage is a human institution, and humanity has been a round a hell of a lot longer than religion. Thus, in my eyes, we humans own the term ‘marriage’. It has the IP!
(Also, people read up on “institutions” a bit http://en.wikipedia.org/wiki/Institution )
I like the Delueze quote there:
“..tyranny is a regime in which there are many laws and few institutions; democracy is a regime in which there are many institutions, and few laws. Oppression becomes apparent when laws bear directly on people, and not on the prior institutions that protect them.”
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Andrew:
However the/a divorce would be based on an not identical but similar “equitable” arrangement that are presently in place now. It would cripple the higher income earner or wealth owner.
In addition the same really nefarious laws now governing relationships would also operate where a woman can get a piece of the pie by just being the girlfriend that sleeps over a few nights week.
I know a hedge fund dude up in Sydney, who has never been married and was seeing a gal a few times a week and is being sued under the laws for millions of dollars as it is viewed as cohabitation. She was one of several girlfriends.
The point is to not get married and the last thing gays should want is to be governed under similar socialist redistributive divorce laws.
Gays crazy for demanding this “right”. In fact they ought to be running 100 miles an hour from it.
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“Gays crazy for demanding this “right”. In fact they ought to be running 100 miles an hour from it.”
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Having the right to be married is fine, since you arn’t obliged to partake in it. The more worrying ones are the defacto laws, where you don’t have the choice. I guess some gay people are overly altruistic in that they think that having equal rights is more important than not, even if they are negatively affected by it.
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Incidentally, some people complain about males losing out with these weird defacto laws, but no doubt as women continue to make inroads into the wealth difference between genders, we’ll start seeing more of the opposite occurring — so I think a lot of these complaints are based on past memories, whereas the current situation is changing (and given educational outcomes, it would be very surprising if women didn’t catch up). I guess the real lesson is to make sure you (a) don’t go out with people for more than 2 years; or (b) get someone richer than yourself. That way you’ll pretty much be covered unless you have kids.
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…as women continue to make inroads into the wealth difference between genders, we’ll start seeing more of the opposite occurring
I think you’re being more than a little optimistic that women will change their spots. Women are 100 times far more status conscious then men and are not going to marry who they perceive to be lower status males if their life depended on it.
I guess the real lesson is to make sure you (a) don’t go out with people for more than 2 years; or (b) get someone richer than yourself. That way you’ll pretty much be covered unless you have kids.
I agree with the first point, however as I said the reality is that women will not marry below their perceived status whereas men do. Women are not going to give up their wombs for someone they think is lower status, as that is bread into them from evolution. They would rather drown.
Men shouldn’t get married and have kids. Face it most men can easily go without the need for a kid and the risks are huge that the marriage doesn’t work out and the financial damage is catastrophic. Men should not get married and if gays really thought about this they wouldn’t go near this racket which will invariably also attract the de-facto socialist laws that go with it.
Lastly, it’s pretty shocking to see religious leaders pushing marriage as marriage is really no longer a religious institution but a state sanctioned one. In fact religious leaders should be against the current set up as it is state intervention in a fundamentally religious issue (for them) and it’s a great example of state interference in religious matters.
Religious leaders should be opposed to the current oppressive marriage racket and should refuse to marry anyone unless it was ONLY recognized under their religious beliefs without any state intervention. They should be advising young men not to get married under the present set up.
Marriage is now a state matter and it’s an oppressive racket.
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“Women are 100 times far more status conscious then men and are not going to marry who they perceive to be lower status males if their life depended on it.”
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Ever noticed the new cougar phenomenon JC? If 2/3rds of graduates are female and they want to breed with someone of a similar level, that’s going to leave a lot of unhappy people if things don’t change.
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“Lastly, it’s pretty shocking to see religious leaders pushing marriage as marriage is really no longer a religious institution but a state sanctioned one.”
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I agree. It is very odd. Given the decline of religion in Western countries, you would have expected that they would try and offer things like this as something they offer that the State can’t. But evidently not.
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No, I’m not personally aware of the Cougar phenomena, Conrad. What the hell is it?
If 2/3rds of graduates are female and they want to breed with someone of a similar level, that’s going to leave a lot of unhappy people if things don’t change.
How can they possibly change if our culture is moving faster than our genes?
I agree. It is very odd. Given the decline of religion in Western countries, you would have expected that they would try and offer things like this as something they offer that the State can’t. But evidently not.
I think I wasn’t clear with the point I was making. Religious leaders should be up in arms about the current marriage system and should in fact be demanding that it is privatized. I’m not suggesting they walk away from it, I’m suggesting the become more involved.
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Are you serious? I thought I was out of touch with modern culture. Cougar phenomena = older women going out with younger guys (it seems to have hit popular culture lately. A bit like Harold and Maude goes commercial). More important is the decline in the age difference between men and women getting married, which suggests that relationships are getting more equitable.
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You were clear enough the first time on the church stuff — I agree, and I’m surprised religious groups arn’t more involved. It would be a great selling point for them.
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Rudy
Actually marriage has been around a lot longer, and among much older religions, than “the church.” The church was a very late starter in the marriage game, preferring to spend the first 500 years masturbating alone and whipping themselves. It co-opted the practice from pagan Romans.
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“women will not marry below their perceived status whereas men do.”
JC, what does your wife think about that hypothesis?
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There are obvious exceptions to any rule, Ratpak. However, if I had to guess, I’d probably guess that she thinks she did 🙂
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“Women are 100 times far more status conscious then men and are not going to marry who they perceive to be lower status males if their life depended on it.”
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Ever noticed the new cougar phenomenon JC? If 2/3rds of graduates are female and they want to breed with someone of a similar level, that’s going to leave a lot of unhappy people if things don’t change.
Isn’t that, in fact, what happens? We end up with a lot of unattached professional females? I can think of a whole stack in my acquaintance, and one of their chief complaints is I can’t find any men for them amongst my mates. They start exploring options like having a kid on their own, to trying to seduce married men (sometimes that works, other times it just looks, well sad).
The recent “cougar” meme is more sad bullshit that will all end in tears.
The cutting edge of culture change.
Back on topic, wasn’t Abbott speculating on some sort of separation of marriage and the state at one stage?
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I can’t understand why gays are looking for relationship recognition from the state when the best thing to do is avoid it’s clutches?
“Marriage” is the celebration of a contract.
An enterprising lawyer’s office could jizz up a space and provide all the trimmings for such an event when people sign up to a private contract.
For God’s sake, stay away from state sanctioned “marriage”. Stay as far away as possible if you’re gay and in fact agitate against the frighteningly stupid idea.
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Do you think it would be practical to allow total freedom of contract in marriage? There is a certain convenience in having most people covered by the same set of pre-established rules, as it makes the outcome more certain and limits the costs to the courts in litigating over novel contracts.
Perhaps a middle point between freedom and practicality would be to offer a set of different marriage agreements (with different expectations and divorce procedures) that surveys show would appeal to different social groups and let everyone choose.
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Robert:
There are plenty of examples in the commercial world where there are standardized contracts. A standardized commercial letting agreement would be one simple example.
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Robert – My dilemma is that I think the current law probably goes too far in deeming legal terms of a relationship (for example, treating unmarried couples as if they were married, when they may have good reasons for preferring a ‘weaker’ relationship), but at the same time recognising that private contract won’t necessarily protect the institution of ‘long-term relationships’ by increasing the risks of parties who perform major caregiving roles (as Metz persuasively argues in my view).
At the same time, there should not be any obstacle to agreements between the parties on matters that do not go to the core areas of public policy interest. In practice though I think that this will come from – as you sort-of suggest – the different models of marriage found in the community rather than couples sitting down and haggling over contractual terms. This will rest on the moral authority of the cultural/religious source of the marriage more than the legal authority of contract law.
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Andrew wrote in comment 9: “We often take on constraints or obligations that allow us to achieve larger goals. The more complex area for liberals is the widespread legal deeming of relationships to be de facto marriages.”
It seems to me you need to rethink the original question of “should marriage be disestablished?”, because that’s already being decided – people are choosing NOT to take on those constraints and obligations by choosing not to be married. The maintenance of stable relationships is de facto being disestablished, and the government is just playing catch-up by deeming relationships to be de facto marriages.
When a long-term de facto relationship breaks up it’s just as traumatic as a when a de jure one does, but it’s about $500 cheaper at the very least. Also there’s not the feeling that something sacred and sanctified and over-hoo-haaed has been broken, it’s just a fact of life. Marriage laws (and indeed the cultural implications of marriage) are rather like employment laws – they need to strike a balance which protects the rights and desires of both parties involved. The current balance in Australia is being rejected by the customers.
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Andrew Norton said:
Liberals will always try and find some way of upsetting the apple cart, just so they can safely tick the civil rights box.Marriage has to be established by the state, preferably with authorities both spiritual and temporal. This, by the way, worked pretty well in Britain for about 1000 years.
But of course we late moderns now know much better.
Marriage is too important – and had too many third party spill-over effects – for its administration to be left to soley at the discretion of private consenting adults.
Most obviously the duty of care of owed to children must ultimately be accepted by the state. But also to prevent Mill’s “experiments in living” – ah what lurid spectacles hide behind this innocuous phrase – from getting out of hand. (Waco anyone?)
Thus institutional authority must over-rule, where necessary, individual autonomies. In conservative terms, institutional authority is normally dispensed by State (regent) Church (religion) or Folk (village elders).
I think we can safely rule out village Elders as ministers, no matter what Hilary Clinton says. Obviously there are many who no longer accept the authority of the Church in matters marital. That leaves the State.
I suppose common-law marriages suffice these days, since they are in fact recognised and enforced by the state. This indicates that the state is now in the business of enforcing obligations that were once accepted by custom or moral obligation.
Of course that does not mean that the state is enforcing these obligations always in a fair and reasonable manner. Many men obviously feel that marriage gives them a raw deal, which is why they choose to be footloose and free for so long.
(Disclosure: I am happily married and only regret I did not tie the knot sooner.)
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I should probably not do this but I can’t help linking to a post by Roissy on marriage, a favourite subject of the self-styled master game-player. His take on post-modern marriage is that feminism and the disestablishment of marriage has been a boon to attractive women and their Alpha-male gamers. Beta-males and less-attractive females are the losers. This process spells doom for what used to be called Western civilization:
I am a little skeptical of the apocalyptic side of this prediction, at least in so far as it applies to middle-class men. If they choose wisely they will benefit more from marriage as opposed to long-term bachelorhood. In terms of better career structure and life expectancy, not to mention the benefits of a deep and meaningful companionship.
But that is a big “if”.
Certainly the un-married state now seems to be forced on lower-class men by circumstance and upper-class men by choice.
Liberals, if they had any sense, would be encouraging marriage as the best under-pinning of a middle-class democratic society.
But liberals don’t have much sense ever since they drank the post-modern Kool Aid. So they will continue to sacrifice the anthropological foundations of a free society on the altar of ideological purity.
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John – I was using ‘disestablished’ in the technical sense Metz uses in her book, as a particular cultural institution officially recognised by the state. This is different to whether or not an institution exists.
The ambiguous nature of de facto relationships is a key issue for me. Are they people who just didn’t get around to getting married or don’t think the ceremony is important, but otherwise see themselves as having all the rights and responsibilities of a married couple? Or are they deliberately choosing a weaker bond?
Jack – You may be right, hence my hesitation. While I disagree with some of the detail of Metz’s position I am broadly with her in thinking that whether or not the state regulates an institution calls marriage it can legitimately regulate some kinds of relationships. In that sense, we are in a middle position between you and the libertarians.
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If one is familiar with the history of marriage, this debate is a bit odd. The Church got into marriage law because there was pressure (particularly from landholders) to regularise marriage rights and law to help smooth transfer of property. There is a transaction costs argument in favour of a standard contract which I suspect would recur rapidly if marriage was “disestablished”.
The notion that marriage “has to be” sacralised is also deeply odd. In Latin Christendom, marriage did not become a sacrament until the C11th. The Church did not require the presence of a priest until the Council of Trent in the C16th. But contractual marriage is, in fact, older in Western traditions (in Judaism and Roman law).
The notion that the Church has “IP” in marriage is simply stupid, showing a crass ignorance about the history of marriage. But it is consistent with the pattern of social movements vis-a-vis the family: starting off being against it as distraction from the Great Purpose, making some sort of accord with it when social reality proves too strong and concluding that they were always in favour of it really.
As an aside, the only thing anthropologists have been able to find that is common and distinctive about marriage–it creates in-laws. As for its origins, that is not remotely tied to any particular religion. Indeed, religions typically seek authority from supporting and ritualising marriage, rather than marriage requiring religious authority. Marriage itself has origins in human needs and conveniences. In Stephanie Coontz’s words: having a flexible, gender-based division of labor within a mated pair was an important tool of human survival. Children, property and companionship are enough to sustain marriage as an institution: so much so that any two of them seem to be enough to keep it going.
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Andrew, certainly my de facto state is because I now have as many rights and responsibilities as I need (and my kid needs), and consider anything further to be a worthless imposition. I only claim that marriage is being de facto disestablished. The law is essentially conservative and takes a long time to catch up.
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No doubt men do get a raw deal from divorce, but there are upside to societal trends for us lads anyway.
As women become more independant and still generally refuse to ‘marry down’, this has substantially increased the demand for suit wearing, cock-sure young atheletic sprouts like myself. I’m lovin it….especially on Friday nights!
That said, the Jackster raised some good points. Defintely concerned about weakening societal values and its implications. I won’t go through the list, but social policies over the last 40 years seem to put the lazy, the spend thrift and the promiscious over the entreprenuirial, the diligent and the prudent. No doubt our society is getting weaker. But I’m not so worried about this, but more about a confident I-slam asserting its values when the cycle reverses. It’s happening in Europe, and will happen here if we’re not careful.
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Though at least gay men won’t make the financial mistake of marrying a woman:)
Looking around I understand that quite a few already have made this mistake.
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