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.