Separating marriage and state (a review of Tamara Metz’s Untying the Knot)

This review appeared in Policy magazine in Spring 2010.


In many Western countries, marriage is a subject of passionate political contention. Gay marriage triggers controversy wherever it is proposed. Conservatives suggest ‘covenant’ marriages with stricter obligations than imposed under current marriage law. Religions and cultures that permit men to take multiple wives challenge monogamous marriage. Participants in these debates disagree on much but concur on one thing: the state should decide what marriage means.

Tamara Metz questions this assumption. In her book Untying the Knot: Marriage, the State, and the Case for Their Divorce she argues that a liberal state should not determine which relationships count as marriages. Disputes over how to define marriage show that there is no consensus on its meaning.  The state should see marriage in the same way it sees religion, another subject on which agreement seems impossible, as a private matter in which governments should not interfere.  There are other ways of promoting long-term relationships and protecting the parties to them.

Liberal thinkers on marriage

Core liberal ideas suggest that marriage and state should be separate, but, historically, leading liberal thinkers have not called for their separation. Metz shows that while John Locke—a leading liberal figure on the separation of church and state — and John Stuart Mill both applied liberal principles to marriage, neither saw a clear dividing line between marriage and the state. Both assumed that marriage, unlike religion, would be ‘established’ — an institution officially recognised and regulated by the state.

Radically for the seventeenth century, Locke believed marriage should be a freely entered into and exited from relationship between men and women. He saw marriage as like ‘other voluntary Compacts,’ with its terms set by the parties and ended by their consent, with the qualification that ‘Procreation and Education are secured, and Inheritance taken care of.’ So Locke stops short of letting couples fully define their marriage’s terms because he does not think they should be able to use contracts to avoid  caring for their children. Though on Locke’s account marriages should be freely entered into, the parties by doing so consent to terms partly set and enforceable by the state.

In his The Subjection of Women, Mill strongly criticised mid-nineteenth century laws that made women’s property their husband’s property, and supported equality of married people before the law. But this was within a framework of state-regulated marriage. On Mill’s account, the state had a legitimate role in limiting who could enter marriage and the reasons for leaving it.

In On Liberty, Mill argued that laws in Europe forbidding marriage to those without the means to support a family did ‘not exceed the legitimate powers of the State.’ This was because he saw parents as having strong obligations to look after their children. If they could not meet those obligations, it was reasonable for the state to prevent them from marrying in the first place.

Mill also appears quite conservative on divorce. Although he thought that violence in marriage should be grounds for divorce (which it wasn’t at the time), Mill was reluctant to endorse liberalising British divorce law. Mill’s reasons are revealed in his disagreement on marriage with Baron Wilhelm von Humboldt, author of The Limits of State Action (1854). Von Humboldt argued that because marriage depends on the couple’s feelings, it should ‘require nothing more than the declared will of either party to dissolve it.’ Mill responded that marriage encourages husbands and wives to act on the expectation that their relationship will continue, which creates obligations even if the ‘feelings of the parties’ have changed. Easy divorce would undermine these legitimate expectations.

On Metz’s analysis, Locke and Mill identify good reasons for regulating family relationships in ways that go beyond whatever private agreements or understandings may exist between couples. But Metz argues that Locke and Mill blur two aspects of marriage that should be separated. Obligations to children and partners frequently coincide with marriage, but the same arguments apply whether or not a marriage ceremony has taken place. By contrast, the state need not involve itself with matters such as the nature of the ceremony, the meaning given to the marriage by the couple and the community, and any other obligations created by the marriage. The underlying purposes of the rules that Locke and Mill propose for marriage can be achieved without regulating marriage itself.

Historical reasons explain why Locke and Mill saw no need to make firmer distinctions between the material and meaning aspects of marriage. Marriage is far more challenged as an institution now than it was in either the seventeenth or nineteenth centuries. The stigma attached to births outside marriage has largely gone, while Mill’s idea that forbidding marriage would prevent poor people from breeding seems naïve in the early twenty-first century. It is clear now that marriage law alone cannot protect unmarried partners or their children. The meaning of marriage is also challenged in a way that it was not Locke or Mill’s times. They did not contemplate same-sex marriages, or hear calls in England for multi-spouse marriages (Mill disapproved of Mormon polygamy in the United States but opposed a crusade to force them to abandon it). Changed circumstances mean that while liberal principles may guide a contemporary liberal approach to marriage, the great liberal thinkers themselves cannot answer all the questions raised by current circumstances.

Intimate caregiving unions

Metz argues that marriage should be ‘disestablished’ and replaced with what she, somewhat inelegantly, calls ‘intimate caregiving unions’ (ICGU). ICGU law would manage the risks, responsibilities and rewards of intimate caregiving by taking over the material aspects of current family and associated law. Welfare benefits, next-of-kin rights, inheritance, and the rules of distributing assets after relationship breakdowns would be linked to ICGUs rather than marriage. Metz suggests that on dissolution of an ICGU, property should be divided to ‘achieve substantive postdissolution equality.’ Metz sees ICGUs as applying to all intimate care giving relationships, including same-sex couples, multi-partner relationships, and non-sexual relationships. People who provide unpaid care to the elderly, children or the disabled would potentially be eligible for ICGU status, though with her focus on marriage-like relationships Metz provides little detail on how these might work.

It is not entirely clear from Metz’s ICGU discussion how we would know when to apply the ICGU law. At one point, she talks of the rights and responsibilities acquired by single parents who ‘adopt the status’ (emphasis added). This sounds like a formal declaration of ICGU status. But mostly it seems that a specific decision to form an ICGU would not be necessary. Relationships that satisfy a ‘care-giving’ test would be deemed an ICGU regardless of how the parties understood their relationship.

As Metz realises, deemed ICGUs are most contentious for childless adult couples. Unlike parent-child relationships, adult couple relationships without children involve no inherent material dependency. They don’t sacrifice career for care, especially where both work or have other income. Their mutual support is more like an exchange than the ‘essential and risky care’ that Metz envisages. Where neither party obviously needs legal protection, it is not clear why courts should rewrite the terms of their relationship.

In 2008, University of Sydney legal academic Professor Patrick Parkinson raised similar concerns about a bill before the federal Parliament—later made into law—to align maintenance and property division laws applying to married and de facto couples. The changes gave Australian family courts further power to redistribute the income and assets of separating couples. Parkinson argued that not marrying may reflect a deliberate choice that the law should respect. Cohabitating couples may see living together as a ‘trial’ relationship to see if it works out before proceeding to marriage. Or after previous experiences with divorce, one or both members of a couple may be reluctant to take the same risks again. They may want to protect the rights and interests of their parents, children from previous relationships, or other relatives. Those other relatives rather than a romantic partner may provide the ‘essential and risky care.’

In Metz’s ICGU framework, providing couples with choice over their relationship’s legal status is not inconsistent with her broader criticisms of private contracts. Parents should not be able to contract their way out of their obligations to provide or finance appropriate care for their children. Even within a contractual system, conceiving a child and continuing with the pregnancy arguably implies consent to its support. Socially and legally, obligations to children are well-known and longstanding requirements.

But where there are no children, and particularly where the couple have made no formal commitment to each other, it is hard to see why a liberal state should impose a common set of ICGU rules. The linking of the state and marriage is perhaps an intellectual oddity from a liberal perspective but it is one that has been barely noticed as a problem by liberal theorists, let alone by ordinary couples. By contrast, ICGU laws—or current de facto laws in Australia—could impose a ‘one size fits all’ model on a very diverse set of relationships. Couples should be able to choose the nature of their legal relationship: a default position of being treated legally as if they were single, a private contract between the parties, or a registered relationship that would create legal obligations similar to those currently found in marriage. There could be a variety of different registered relationships depending on the wishes and circumstances of the parties. Relationships could be registered only with the consent of both parties.

A consent-based model of non-contractual romantic relationships reduces some financial risks of cohabitation, perhaps encouraging couples to ‘trial’ living together. If, as Metz suggests, single people without any ICGU are particularly vulnerable in life, rules that place obstacles on the now typical path to marriage through first living together seem counter-productive. Relationship registries also allow couples whose lives may not fit within the deemed ICGU provisions to nevertheless make the commitment. Though there would probably not be an official ceremony associated with registering a relationship, the formal signalling of and commitment to the partnership may assist with its longevity.

Freed of the cultural and religious significance of marriage, state-sponsored relationship registration would by-pass most of the political difficulties associated with current marriage debates. Same-sex couples could register their relationship, as they do already with little controversy in several Australian jurisdictions. People in multiple relationships, whether from a polygamous marriage in their religion or culture, or ‘two-timing’ in mainstream culture, could use relationship registration without opening broader issues about the meaning of marriage. While de facto marriage law already deals with some of the issues arising from multiple relationships, registration could help bring legal clarity to all the parties.

Private marriage

Under Metz’s proposal, the state would recognise relationships and set basic rules, especially concerning the dissolution of relationships. But marriage itself would be conducted according to the norms and conventions of institutions within civil society.

But does civil society have the institutions needed to replace the state?

Drawing on German philosopher G.W.F. Hegel’s ideas, Metz notes the role of an ‘ethical authority’ in marriage. The obligations of marriage beyond the couple’s feelings towards each other come from a mix of formal legal requirements, the authority of the institution conducting the marriage, and the public vows the couple make to each other. Before the state became involved in marriage, religious institutions provided the ‘ethical authority’ behind marriage. But in today’s relatively secular society, privatising marriage would leave few obvious private alternatives to religious marriage. Reflecting a long-term downward trend, only around one-third of Australian marriages are now conducted in religious institutions.

In the United States, as Metz reports, people find non-religious ways of giving their marriage ceremony special meaning. The Ethical Society, a humanist organisation established in the nineteenth century, conducts weddings. Because many American states permit anyone ordained by a church to officiate at weddings, the Universal Life Church has been able to offer online ordination to people wanting to marry friends and family members. Its website claims that it has ordained more than 20 million ministers since 1959, and offers the slogan ‘we are all children of the same universe’  beneath the symbols of many different belief systems.

Metz quotes from a New York Times article on people who choose alternative weddings. In a marriage to be conducted by a friend, the groom Gavin Edwards thought that the friend would bring ‘gravitas’ to the ceremony. Edwards compared this favourably with the ‘fake authority’ of a priest who had first met the couple a week before the wedding. While a DIY weddings market would presumably also emerge in Australia, we cannot assume that all couples currently opting for civil celebrants would prefer this laissez faire approach to marriage. Perhaps the state’s role in marriage has crowded out the secular ethical authorities that may otherwise have emerged as organised religion declined. But whatever the counter-factual, there are currently few institutional choices for sanctioning marriages other than the state or a religion. Some people may see the state’s departure from marriage not as creating more freedom to choose what their marriage means but as depriving it of any real authority.

Liberal marriage

The law of marriage is going through a contentious period in Australia and in the world. From Metz’s liberal perspective, this is at least partly because the state is wrongly in the business of deciding which relationships are worthy of the status associated with marriage. Though from my own liberal perspective, I was persuaded by Metz that greater state neutrality on marriage is desirable, I was less convinced that, practically and philosophically, her proposed institutional alternatives are the right approach.

Liberalism gives significant weight to the choices made by individuals. One role of a liberal state is to establish institutions that help people implement their choices, including realising their desire to have long-term relationships with others. Because marriage is a disputed institution, libertarian thinkers like David Boaz propose replacing state-sanctioned marriage with the law of contract, a highly liberal institution that lets parties set almost whatever terms they decide. However, a liberal state can also offer institutional forms with pre-determined conditions. Individuals consent to entering the institution but have a limited or no right to alter its terms. The law of associations, company law, and current marriage law are all examples of how the liberal state facilitates cooperation to achieve the common ends of all individuals.

In the case of long-term romantic relationships, standardised, off-the-shelf institutions have advantages over contract. The point at which couples are most likely to want to have their relationship recognised—when they are in love and believe it will last—is also the time they are least likely to think about all the things that can go wrong over decades of shared lives. If the statistics on marital failure persuade them that a contract is necessary, negotiating separation conditions could trigger disputes that, contrary to relationship law’s intent, could weaken rather than strengthen ties between the couple.

The now standard legal relationships surrounding marriage already take into account many of the contingencies of marriage. The material needs of the parties and their children are covered, along with recognising that the parent who provides childcare often makes financial sacrifices for the family’s overall good. Especially for women and children, this arrangement provides more certainty than contracts and helps manage the risks of parenting. But it helps all parties in the relationship to create the household and family life they want.

Marriage controversies aside, combining the institution’s symbolic and functional aspects, providing both a ceremony and access to the family law courts, has potential benefits in fostering relationship stability. Consistent with Metz’s point about ethical authority, marriage does seem to help relationships endure. The Household, Income and Labour Dynamics Australia (HILDA) survey, which tracks the same people over time, shows that married couples are two to three times more likely than de facto couples to persist with relationships over a five-year period despite expressing dissatisfaction with their partner. The danger in Metz’s proposal to separate marriage and state is that fewer people would bother with a ceremony drained of its legal and ethical authority. Less stable de facto relationships would become increasingly common.

Conclusion

Although I was unpersuaded by some arguments in Untying the Knot, Tamara Metz’s book is consistently interesting and stimulating. It raises important questions about how liberal states should treat long-term personal relationships, a topic that liberal thinkers have said surprisingly little about. Locke and Mill had important ideas about the nature of liberal marriage, but in such a different social context that updated theorising about the liberal state, marriage and relationships is needed.

In Australia, how the state deals with these relationships should be a live liberal issue. As Patrick Parkinson has argued, the blurring of de facto and de jure marriage is limiting the kinds of long-term legal relationships couples can have with each other. For gay couples, the situation is particularly anomalous. If they do want to get married they can’t, but if they don’t want to get married the law ignores this preference too and treats them as if a marriage existed. They are caught by injustices on both sides of the relationship recognition divide.

As much as permitting more equality, the state needs to permit more distinctions. Metz’s ICGU idea is interesting for its expansive treatment of the kinds of relationships that might benefit from improved legal definition. But like de facto law, it gives too little weight to the choices the parties want to make. The civil unions that some countries offer as a compromise between gay demands for relationship recognition and conservative resistance to gay marriage may, in the end, have some longer-term use. Straight or gay, civil unions could give couples a stronger legal relationship without taking on all the rights and responsibilities of marriage.

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