The Privatisation of Marriage

In his paper “What Lies Beyond Same Sex-Marriage” Andrew March argues for the privatisation of marriage (2010, Journal of Applied Philosophy, 27(1)). He argues marriage should become the preserve of organisations other than the state. He believes the state should only recognise civil partnerships. He suggests if this was done then religious and other organisations could sanction their own concepts of marriage. Accepting his suggestion might mean some of the issues concerning “gay marriages” might be bypassed and each organisation sanctioning a marriage could set out the conditions a couple must meet if it is to sanction their marriage. It might be thought that this is a radical proposal but in some ways it suggests a partial return to past practice. For instance in England and Wales prior to the marriage act of 1836 only marriages conducted by the Church of England or Quaker and Jewish marriages were recognised by the state. Prima facie March’s suggestion is attractive. However in the UK the Conservative party and David Cameron far from believing in the privatisation of marriage believe the state should actively encourage the institution. In this posting I will argue the state should both sanction and encourage marriage.

In my posting of 05/06/09 I pointed out the idea of marriage arose because it benefited both individuals and society. Historically the most important of these benefits were mutual support, sexual exclusivity to ensure the paternity of any children born and support in the raising these children. More recently society has conferred on married couples a raft of legal and material benefits. In his paper March argues that in a liberal society which accepts moral pluralism there is an obligation
“to justify public coercion and exclusion in terms accessible to all members of morally and culturally diverse society.” (Page, 40)
It follows from the above if some couples are to be excluded from some of the benefits of marriage it must be possible to justify this exclusion. In what follows I will firstly argue that not all unions, “marriages” are identical. Secondly I will argue the state is fully justified in differentiating between different types of “marriage” in terms accessible to all adult members of society. If my arguments are accepted then it appears that March’s suggestion that the state should only concern itself with civil unions for all is mistaken.

Some might argue the state should be unconcerned with people’s domestic relationships and as a result should not be concerned with either civil unions or marriage. March disagrees and believes the state should be only be concerned with civil unions. I also disagree and believe the state should be concerned with both civil unions and marriage. In order to understand why I believe March is wrong to suggest the state should only recognise civil unions. In order to understand why I believe March is wrong it is first necessary to understand why the state should be concerned with peoples’ personal relationships. Once this understanding is achieved it is then possible to argue that the state should recognise different types of unions. Let it be accepted any modern liberal state only exists to benefit, however imperfectly, its citizens. It might be argued in theory a state should be a minimal state and only benefit its citizens by protecting them from coercion and enforcing un-coerced contracts. However in practice most liberal states gives its citizens a wide range of benefits such as education, highways and healthcare. Prima facie it seems reasonable that a state should give certain couples certain benefits if these couples provide some benefits that would otherwise have to be provided by the state. All modern liberal states are concerned with the education of children. It follows a modern liberal state is concerned with the rearing of its children. If all its citizens behaved like Rousseau, by sending their children to foundling hospitals, the state would have to assume responsibility for these children. It therefore seems reasonable that the state should provide couples with children with certain benefits and that these benefits should be unavailable to those couples without children.

In practice most states give some benefits to all married couples regardless of whether they have children or not. For instance a widow has the right to inherit her late husband’s estate. In this posting I will not question whether such a policy is justified. However provided the state only provides such benefits to married couples March is correct to point out it must be possible to justify excluding other types of couples in terms accessible to all adult members of society. I find it difficult to see such any such a justification. It follows provided the state provides some benefits to all married couples that it should provide the same benefits to all long term partnerships regardless of the gender or sexual orientation of the partners involved. It further follows if the state is to benefit certain long term partnerships that it must officially recognise these partnerships in some way. If the state does not recognise and differentiate between partnerships then perhaps any relationship however transient, perhaps even a one night stand, might be a reason for the conferment of these benefits.

If the above is accepted then in practice, with certain exceptions such as incestuous partnerships, the state should be willing to recognise all long term partnerships. Such recognition should, as March suggests, take the form of civil partnerships. Let it also be accepted that the state should provide certain benefits only for couples with children. It would be completely compatible with the above for the state only to recognise civil unions and financially reward couples with children in some way, perhaps through tax breaks. If the above is accepted then March may well be correct in believing the state should privatise the recognition of marriage. However I would argue that the state is not just concerned with any child rearing but good child rearing and this means the state should be concerned with traditional marriage. Empirical evidence suggests that children from traditionally married couples are likely to be more confident and succeed better in life than the children of cohabiting couples for various reasons. Firstly it seems clear that children benefit from parental stability. According to Benson “unmarried parents are four times as likely to split up as married parents. By the child’s fifth birthday 9% of married couples have split up compared to 35% of unmarried couples.” See http://www.bcft.co.uk/2010%20Family%20policy,%20breakdown%20and%20structure.pdf
Secondly it would appear the children of parents who simply cohabit have significantly more mental health problems. See www.statistics.gov.uk/downloads/theme_health/summaryreport.pdf
In addition to the above there also appears to be some evidence that the children of traditionally married parents are less likely to offend and take drugs. Some may dispute some or all of these findings and suggest there is no difference in the way the children of traditionally married and cohabiting couples flourish. This dispute should be resolved by evidence and experiment not philosophy, see my previous posting concerning Trout. However, returning to philosophy, prima facie it might be concluded that provided the evidence shows the children of traditionally married couples enjoy certain benefits when compared to the children of cohabiting couples then the state should specifically recognise and encourage the idea of traditional marriage. I would argue if this conclusion is not to be accepted it is up to the opponents of the conclusion to justify their position in terms accessible to all adult members of a morally and culturally diverse society.

If the above is accepted then it might be suggested by some that for reasons of simplicity the state should not only recognise traditional marriage for heterosexual couples but extend this recognition to gay and lesbian pairings thereby dispensing with the need to recognise civil partnerships. I would reject such a suggestion. Moreover I believe my reasons for this exclusion satisfy March’s requirement that my reasons should be accessible to all adult members of morally and culturally diverse society. I would firstly argue if traditional marriage was to encompass gay and lesbian couples that these couples might believe they have a right to be helped to conceive or adopt children. I argued in my posting of 05/06/09 such couples should not have this right. In this posting I argued some loving relationships are distorted by bringing only loving being loved to a relationship rather than a genuine form of disinterested love. I further argued this distortion is particularity likely to apply to gay couples with relation to children. Such couples might be especially prone to loving having children rather than simply loving children. It might be objected to above such a distortion could equally apply to heterosexual couples. My response to this objection would be to point out that nature gives most natural parents a natural empathy with their children making it is more probable that they will love their children in a purely disinterested way. It therefore seems reasonable to conclude the state should only recognise traditional marriage for heterosexual couples but that it should in addition recognise civil partnerships.

However there is a major problem with my above account. What exactly is meant by a traditional marriage? Indeed someone might point out if it is impossible to define what is meant by a traditional marriage my argument that the state should recognise two forms of marriage is impractical. It might then be argued that March is correct to suggest the state should privatise the recognition of marriage and only recognise civil unions. One possible solution to this problem might be to define a traditional marriage as a religious marriage. In this way even if the state does not actually privatise the recognition of marriage it contracts out this recognition. Such a solution might have been possible in the past, in a more religiously homogenous state than our present multicultural one, but seems impractical now. For instance it is by no means clear religious polygamous marriages benefit children. It follows even if the state should recognise and encourage traditional marriages in addition to civil partnerships, because the former benefits children in some way, that the state has no reason to recognise polygamous marriages. I have argued above a child benefits from being loved for herself rather than being loved for being someone’s child. I further argued that this disinterested form of love comes more naturally from heterosexual parents. It would suggest a traditional marriage might be defined as one in which a heterosexual couple make some long standing commitments to each other. Accepting the above would means it is possible for the state to recognise traditional marriages in addition to civil unions.