JUST MARRIAGE: Mary Lyndon Shanley

...A third line of response, then, would preserve the idea that a married couple is something more than its separate members, and that spouses can make claims in the name of their relationship that are not identical to claims that each could make as individuals. But it would also open up marriage so that both women and men, regardless of race, class, or sexual orientation, can, as equals, assume the responsibilities and reap the rewards of family life. I will call this the equal status view. Its defining aspiration is to preserve the idea that marriage is a special bond and public status while rejecting--as incompatible with liberty and equality--important elements of the traditional view of the purpose and proper ordering of marriage.

Can marriage be reformed to serve as a public status that promotes equality and liberty? Is the happy combination of justice and committed intimacy and love suggested by the equal status view a real possibility? ...

The individualism and emphasis on rational bargaining that are at the heart of contracts rest on misleading models of the person and of the marriage relationship. Marriage partners are not only autonomous decision-makers; they are fundamentally social beings who will inevitably experience need, change, and dependency in the course of their lives. The prenuptial agreements that set forth how economic assets each partner brings to the marriage are to be held and distributed recognize the individuality of the partners, although they strike some people as unromantic. But the question of who should have a claim to property obtained by either spouse during the course of the marriage is more problematic, because when people marry they become part of an entity that is not always reducible to its individual components. Some states hold all such property to be held in common (community property), reflecting the notion that marriage creates a single entity and a shared fate (and hence shared resources) for marriage partners. Other states give title to the person who earned or otherwise obtained the property, but allow title to be overridden in the interests of a fair distribution at the time of divorce, reflecting a belief that marriage creates claims growing out of a shared life. The relational entity is also reflected in common language when spouses say they are doing something "for the sake of the marriage," such as choosing a place to live that would be neither partner's first choice if single. It is reflected in legal practice when one spouse is prohibited from testifying against the other in certain proceedings because the law wants to express the notion that the marriage relationship itself should be protected.

Married life is not only deeply relational, but it is also unpredictable. Not all of what spouses may properly expect of one another can be stipulated in advance. Contracts are useful devices for facilitating communication about each partner's expectations and aspirations. But contracts create obligations by volition and agreement; they do not account well for the obligations that may arise from unforeseen circumstances, including illness or disability of an aging parent, a spouse, or a child.

Finally, contract suggests that each marriage is a particular agreement between individuals, not a relationship in which the public has a legitimate interest. But the public does have an interest in the terms of marriage. It has, as the equal status view argues, an interest in promoting equality of husband and wife, both as spouses and as citizens, and in securing what Martha Nussbaum calls the social bases of liberty and self-respect for all family members. And it has an interest in sustaining marital and other family relationships in the face of poverty or illness. ...

Despite this dismal history, the notion that marriage creates an entity that is not reducible to the individual spouses captures a truth about significant human relationships and could be used to reshape social and economic institutions in desirable ways. This understanding of the marriage relationship as something distinct from the individuals could be used in the future not to subordinate women but to press for marriage partners' rights to social and economic supports that sustain family relationships and enable spouses to provide care to one another. Such a right to provide care to and receive care from a spouse is not the same as an individual's right to health care or social services. Nor does public protection and support for associational and affective ties need to be limited to marriage partners and parents and children. Rather, recognition of the inevitability of dependency and the importance of caregiving should lead people to ask what other relationships deserve public support.

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posted by Eve at 5:32 PM | link

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