Marriage

Historically marriage could be roughly described as a stable relationship between a man and a women lasting beyond the propagation and raising of children. Furthermore this relationship was recognised by society of the time in some way. More recently recognition by the state has been added to that of society. State recognition is essential to marriage. Couples may live together, but regardless of how they view their relationship, they are not married unless their relationship is recognised by the state. The state regulates the major conditions governing a marriage. Most importantly these regulations lay down who can marry and what conditions must be meet before a marriage can be dissolved. In the last few decades these state sanctioned conditions have been subject to change. For instance some countries including Holland and some states in the USA have recognised same sex marriages, sometimes called gay marriages. This change might be considered to be a broadening of the domain of marriage. It is important to note gay marriage is not yet possible in the UK even though the courts recognise civil partnerships which give the partners involved the same rights as a married couple. A further change has occurred with the gradual easing of the conditions needed to dissolve a marriage. In this posting I will examine whether the broadening of the domain of marriage together with the easement of marriage conditions weaken the concept of marriage. I will argue that the broadening of the domain of marriage does not erode the concept of marriage but that it does abuse the concept. I will further that argue the gradual easement of marriage conditions does erode the concept of marriage. In what follows the conditions of a marriage will refer exclusively to state sanctioned conditions unless stated otherwise. My examination will involve considering civil partnerships, pre nuptial agreements and covenant marriages which are currently available in some American States.

The state may sanction marriage but the concept of marriage arose because it benefited both individuals and society. It might be argued recent changes to the conditions of marriage have increased the number of people who might benefit from the institution whilst at the same time reducing some of the burdens associated with the traditional concept of marriage. For instance, if the conditions of marriage are changed to permit gay and lesbian couples to marry this might be seen as extending the benefits of marriage. Likewise making divorce easier and more equitable might be seen as easing of some of the burdens a traditional marriage places on women by a mostly patriarchal society. However these changes to the conditions of marriage will only add benefit provided they don’t damage the benefits which the concept of marriage originally delivered. Moreover it might be questioned if these original benefits are eroded or lost whether the concept of marriage remains meaningful. What then are the things that originally made marriage beneficial? Firstly any meaningful marriage must include long standing sexual exclusivity. This condition may have originally only been useful to men in ensuring the paternity of their children but never the less any concept of marriage would be meaningless without it. Secondly marriage is beneficial in the raising of children. These two conditions, for sexual exclusivity and mutual support in order to raise children, might be seen as some sort of implicit contract between individuals concerned. In this scenario an arranged marriage seems to be a perfectly acceptable marriage. It may of course not be a loving relationship, see my previous posting. However it seems to me that any meaningful concept of marriage, at least in the western world since the middle ages, would be incomplete without the inclusion of an exclusive affective element. People don’t normally marry strangers in order to obtain the benefits of marriage. We have a period of courtship to see if we care about our future partners. If ones cares about one’s spouse and children it is not possible to care about one’s spouse and another adult in the same way if the marriage is to be regarded as meaningful. It follows the type of affection involved in marriage should also be exclusive. To summarise the things that made a traditional marriage beneficial were firstly both persistent sexual exclusivity and affection and secondly mutual assistance in the raising of children.

Would the broadening of the domain of marriage so as to include gay and lesbian couples be beneficial? Intuitively extending the benefits of marriage to gay and lesbian couples would appear to be a good thing to do. Certainly on a consequentialist account of morality this extension would appear to be the correct thing to do. What benefits does a gay couple seek from marriage? They seek equal treatment in a wide range of legal matters with married couples and as I have argued above persistent sexual exclusivity and affection. In the UK since 2004 it is possible for gay and lesbian couples to enter into a civil partnership. A civil partnership confers on the partners all the material benefits of marriage and is often referred to as a gay marriage. The only real differences between a civil partnership and a traditional marriage are that the former is purely a civil affair whilst the latter may be a religious one and that a civil partnership is completed by the partners signing rather than by a verbal declaration. It might then be argued all the benefits a gay couple seek from marriage may be obtained from a civil partnership. Accepting this of course does not mean a gay couple should be unable to marry. Indeed it might be argued a gay couple have a right to be recognised as a married couple in exactly the same way a heterosexual couple are except for their sexual orientation. The question I now wish to address is this. Would the broadening of the domain of marriage to include gay and lesbian couples erode the concept of marriage?

All couples, gay or heterosexual, are interested in any material benefits marriage brings. I have argued above the things that originally made marriage beneficial were firstly persistent sexual exclusivity and affection and secondly mutual assistance in the raising of children. However in practice most gay couples are only interested in sexual exclusivity and affection. It follows there is a real difference between the things most gay and a heterosexual couples seek from a marriage. It might then be concluded that because of this difference gay and lesbian couples might have a different concept of the benefits of marriage and perhaps the concept of marriage itself. It might be argued this conclusion is mistaken as some gay couples, even if the numbers are very small, want to raise children of their own.

Gay couples are incapable of having children who are directly biologically related to both partners. It follows the question as to whether there should be any difference between the implicit contracts made in civil partnerships, gay marriage, and marriage might depend on the question as to whether gay couples should be able to use egg donation, AID, or adoption to help them conceive and raise a child of their own? I will now argue they should not. I will argue gay couples are more likely to see children as a means to an end rather than as ends in themselves. Let it be accepted gay people should be treated with equality. However it often appears that gay couples desire, to have children in order to seen as the same as heterosexuals, seems greater than their simple desire to have children as such. Being treated equally means treating similar people in a similar way. It follows wanting to be treated equally does not imply someone should automatically be treated equally. If by having children a gay couple seeks to be treated in the same way as a heterosexual couple it follows their children are being used more as a means rather than as an end. Any couple adopting children or being aided by artificial means to conceive children should be capable of having a genuine loving relationship with any children they adopt or conceive. In my previous posting concerning loving relationships I expressed the concern that some loving relationships are distorted by bringing only loving being loved to a relationship rather than genuine disinterested love. This concern seems to apply particularity to gay couples who might love having children rather than simply loving children. If this is so once again children are being used as a means rather than an end. It might be objected there is no evidence to support my assertion that gay couples are any more likely to love having children rather than simply loving children than heterosexual couples. If this is true then my argument discriminates unfairly against gay couples. It is of course unfortunately true that, some heterosexual couples love having children rather than simply loving their children disinterestedly. None the less nature gives most biological parents a natural empathy with their children meaning it is more probable they will love their children in a purely disinterested way. For the above reasons it seems to me that gay couples should not be permitted to adopt or assisted in conceiving children. If it is accepted, that heterosexual couples should be able to adopt and assisted in conceiving children, then it follows there significant differences between the legitimate aims of gay and heterosexual couples.

Does accepting my argument that gay couples should not be assisted to conceive or adopt children mean gay couples to not be able rear children? It seems clear to me a gay couple should be able to rear any existing children who are the biological offspring of one of the partners. Consider a heterosexual couple with a child. Let it be assumed the father dies. The mother then enters into a lesbian relationship. It would seem to me the mother would usually have more natural empathy with the child than any others. It follows it would usually be in the child’s best interests that the lesbian couple should rear him. Let it be assumed instead of the father dying the couple separate. Once again the child’s best interests must be considered. This case is not so clear cut. However due to women’s greater natural empathy it is entirely possible that once again the lesbian couple should rear him. All of the above applies to a relationship between gay men though to a lesser degree due to most men’s lesser natural empathy with children. Finally I wish to consider whether a lesbian couple in which one of the partners conceives a child by natural means should be able to rear the resultant child. Clearly any attempt to stop lesbian couples conceiving a child in this way is an unacceptable limit on their freedom. It seems clear, due to reasons dependent on natural empathy outlined above, that this couple should normally be permitted to rear the child.

Even if some gay couples should be able to rear children there is usually a difference between the attitude of gay and lesbian couples towards children from that of heterosexual couples. Does this difference mean any extension of the concept of marriage so as to include gay couples would damage the concept of marriage itself? Both gay and heterosexual couples seek persistent sexual exclusivity and love from a marriage. It follows both gay and heterosexual couples seek some of the same benefits from a marriage. I will now argue if gay couples have the right to marry that this right does not of necessity erode the concept of marriage. I will further argue if gay couples have the same rights as heterosexual couples regarding children that these rights abuse the concept of marriage. Prima facie simply giving gay couples the right to marry does not damage the benefits of marriage for heterosexual couples. It follows giving gay couples the right to marry does not damage the benefits of marriage. It might then be suggested provided the benefits of marriage are not damaged that the concept of marriage is not eroded in any meaningful manner. However I have argued gay couples should not have the right to adopt or to be assisted in conceiving children. If marriage gives gay couples these rights then marriage gives these couples illegitimate rights. It follows in this situation even though the concept of marriage remains undamaged for most couples these illegitimate rights extend the concept too far. The concept of marriage is being abused. It further follows the traditional concept of marriage should not be broadened to include gay marriage. None of the above of course means gay couples should not be able to ‘marry’ by entering into civil partnerships. It still further follows that there should be clear differences between civil partnerships, gay marriage, and traditional marriage.

How can traditional marriage be differentiated from civil partnerships? One way this might be attempted would be to ease the conditions involving civil partnerships. Such an easement would render civil partnerships virtually meaningless. Almond points out that if marriage is regarded as a contract it is an extremely weak contract (Almond B, The Fragmenting Family, Oxford University Press, 2006). It might of course be objected marriage is not a contract. Regardless of whether marriage is some sort of contract it must at the very least be viewed as an agreement between the parties involved. If this were not so the entire concept of marriage would become meaningless. Almond points out if someone takes out a bank loan she agrees to pay the money back. She doesn’t agree to pay the money back only if she doesn’t change her mind. If this hypothetical situation applied in practice then the whole idea of bank loans would become meaningless and cease to exist. Prima facie it might be assumed this should also apply to any marriage agreement. Because currently when someone marries, the marriage agreement, mean in practice she only agrees to stay married provided she doesn’t change her mind. The above suggests marriage serves no useful purpose even if the institution continues to exist in some hollow way. It might be further suggested there are no meaningful differences between a couple living together and a married couple. Marriage brings certain tax and material benefits to the couple involved and it also sets out the conditions applicable if the marriage is to be dissolved. It follows being married is useful and that there are differences between living together and being married. It follows the above suggestions are not completely sound. Never the less if these are the only differences between being married and living together marriage seems to have become a somewhat hollow concept.

I have argued that the benefits of marriage are persistent sexual exclusivity and affection together with assistance in the raising of children. I have further argued marriage must at the very least be viewed as an agreement between the parties involved. In the past and in some non western cultures the constraint of sexual exclusivity applied mostly to women. However this is not now true in the western world and sexual exclusivity involving both partners is central to any marriage agreement. I will assume the same exclusivity applies to affection or love without argument. I have also demonstrated that marriage may currently be viewed as some sort of agreement between the partners involved to remain married until one of them decides not to. To love each other until one partner decides not to. Such a view of marriage is incompatible with genuine love. Love is one of the benefits marriage is supposed to encourage. It is a constant theme of mine that love must have some persistence, see my previous postings. If you love someone it therefore seems illogical to make an agreement to love her only until you decide not to do so. It is of course possible for love of someone to slowly fade. It might be suggested ‘gay marriage’ differs from more conventional marriage in the different ways the couples involved love each other. However I believe there is only one way of loving and that love cannot be short term and must have some persistence. Love of course may be expressed in different ways. Gay ‘lovers’, in particular gay men, often have many short term relationships. It follows any ‘love’ involved in such transitory relationships is not genuine love. Never the less I believe when gay people love in a disinterested way they love in an identical way to heterosexuals. It further follows there is no meaningful difference between gay and heterosexual love. Gay lovers entering into a civil partnership have just as much desire that their agreement persists as any heterosexual couple entering into a marriage. It follows as far loving one’s partner is concerned there is no difference between those entering into civil partnerships, gay marriage, and marriage.

I have argued one of the benefits of marriage involves assistance in the raising of children. Good child-raising involves love and as I have argued above genuine love because it needs persistence is incompatible with the current concept of marriage. Children’s interests are damaged by the parents divorcing. Genuine parental love means if the children’s interests are damaged then so are the interests of the parents. It might be because of this reason some parents, whose love has faded and who genuinely love their children, agree to remain married until till the children grow up. It follows heterosexual couples have an additional reason based on love to remain together which gay couples do not. Two objections might be raised to this conclusion. Firstly it might be pointed out not all parents love their children. This objection is supported by the sad cases of Baby Peter and Sharon Mathews. It is not enough for parents to simply say, however sincerely they say it, that they love their children. Whether parents love their children depends on their actions. Secondly a parent whose love for his partner has faded and who genuinely loves his children may love someone else. In such a case it might be argued the parent also has a reason based on love not to remain with his partner. However if a parent genuinely loves his children it might be questioned whether such an additional love could grow. Indeed it seems possible in our self indulgent times all that has grown in this scenario is a degenerate form of love, love of being loved

Most parents genuinely love their children. It follows most married couples with children have an additional reason to stay together when compared to gay couples. There are no meaningful differences between civil contracts and traditional marriage. There is a meaningful difference between the goals of traditional and gay marriage. It follows there should be a difference between civil contracts and traditional marriage. Any easement in civil partnerships would render them meaningless and would run counter to the desires of gay couples entering into such partnerships. It further follows that traditional marriage should be harder to dissolve. It still further follows that the gradual easement in the conditions necessary for dissolving a marriage agreement over the years have damaged one of the major benefits a traditional marriage delivers. It can now be concluded that because of the easing in the conditions which need to be meet in order to dissolve a marriage have damaged the benefits marriage delivers this that this easement has eroded the concept of marriage. It might be objected to the above if my conclusions were implemented this would return us back to the bad old days when couples could become trapped in a loveless marriage unable to flourish. Indeed by suggesting that some couples should stay together, when their love has faded, because they love their children it might seem I am actually advocating such a return. Such an objection fails because our culture has changed. Firstly our culture has changed by allowing women more opportunities outside the home to flourish. Secondly our culture has changed so any stigma formerly attached to living together without being married has all but vanished. This second change together with the introduction of civil partnerships means marriage has genuinely become an agreement which is freely entered into. Lastly if a couple stay together, because they love their children, some love still exists in the marriage and even if their love for each other has faded their love for their children should permit them to continue a fairly harmonious relationship allowing each partner to flourish separately. Lastly I am not suggesting of course no divorce in marriage. I am only suggesting that it should become harder to dissolve a marriage.

In what ways should it be made harder to dissolve a marriage? Firstly it should not be made harder to dissolve a violent or abusive marriage. Violence or abuse should be grounds for the immediate dissolving of a marriage on safety grounds. However there are no safety grounds for the immediate dissolving of a marriage due to the gradual fading of love by one partner or his love of another. Love does not immediately cease at the flick of a switch and because one of the benefits marriage seeks is love nor should marriage. It seems to me that it should only be possible to dissolve a marriage after a reasonable amount of time or after counselling. It seems if a couple agree to love and support each other in marriage that this agreement was meaningless if after six months they decide to part. I accept promising to love is different to agreeing to pay back a bank loan. The conditions of a bank loan are simple but because love in some ways resembles something organic the conditions of love are far from simple. Never the less if a married couple agree to love and support each other this agreement should have some persistence. Perhaps such a couple should not be able to dissolve their marriage for two to four years. Most married couples have some difficulties in their relationships. This is only natural in any newly formed relationship. These difficulties can often be resolved by time and this supports my argument that any marriage agreement should have some persistence. Sometimes these difficulties may seem irresolvable to the couple involved but might be resolved by counselling. If a married couple seek counselling and their problems remain irresolvable then I believe this fact alone should be sufficient grounds for dissolving the marriage.

I have argued the gradual easement in the conditions needed to dissolve a marriage have damaged some of the benefits marriage delivers. For this reason I have argued it should become harder to dissolve a marriage and suggested ways this might be done. I now want to consider two alternatives to making it harder to dissolve a marriage. Firstly it might be argued that there are better solutions to the current problems associated with marriage than those I have suggested. It might be argued that pre-nuptial agreements or covenant marriage offer better solutions without the need to make marriage in general harder to dissolve. Pre-nuptial agreements will be considered in any divorce but are not legally binding in the UK. More over pre-nuptial agreements are primarily concerned with the division of assets on the dissolution of a marriage. Such agreements do not seem to address marriage’s current problems. None the less it might be argued that pre-nuptial agreements should be made legally binding and extended to cover more than how assets are to be divided if a marriage ends. If this was done then pre-nuptial agreements would become similar to covenant marriages which are encouraged by evangelical Christians and recognised by some states in the USA, Arizona, Arkansas and Louisiana. However there is a very low uptake of covenant marriages even in the states in which these are offered. More over three types of marriage, civil partnerships, normal, and covenant marriage seem to offer too may options. For these reasons it seems to me neither pre-nuptial agreements nor covenant marriage offer solutions to marriage’s current problems. Secondly it might be objected marriage’s problems are really problems about love and we should seek to encourage the conditions in which love can flourish rather than tinker around with the conditions of marriage. I myself have some sympathy for this position. I would point out however that marriage encourages love. It seems both of these alternatives to making marriage harder to dissolve ultimately fail. I therefore conclude marriage should be made harder to dissolve and that heterosexual couples who do not wish to accept these more stringent conditions should enter into civil partnerships which give them all the material protection of marriage. Marriage should only be dissolved in the case of violence, after a period of two to four years or after unsuccessful counselling.