Flexner Book Club Blog

2011 Mary Flexner Lecturer: Judith Butler

Every Marriage Is A Ménage à Trois

Over the past decade, since Judith Butler’s essay, “Competing Universalities,” civil rights for those who identify as gay and lesbian have expanded dramatically. Don’t Ask, Don’t Tell has been repealed, allowing tens of thousands of gay servicemen and servicewomen to serve openly in the military alongside their straight colleagues (though they are still prohibited from passing along their veterans’ benefits to their partners, due to federal prohibitions against recognizing gay partnerships). Marriage or civil union between two men or two women is now legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, as well as Washington, DC. (Though those partnerships are not recognized outside of those states, nor are those couples permitted to share federal benefits, nor is their union recognized when they pay federal taxes.) National polls show an overwhelming generational divide on the issue of gay marriage; the majority of people under the age of 40 believe that gay marriage should be legal at the state and federal levels, making it seem more and more likely that, in a few decades, this will be achieved.

Yet in the national conversation and debates about gay marriage the role of the state in recognizing, promoting, and rewarding a formalized union between two adults has been largely ignored. Every marriage is a ménage à trois, with two adults and the state bound together in matrimony. As I teach students in my medieval history classes, marriage in western culture has overwhelmingly been an institution to promote the orderly transfer of property from one family to another, and as a vehicle for legitimizing the offspring of a union between a man and a woman–for the purposes of inheritance. The US tax code and estate laws still largely enshrine this ideal, despite the fact that it is out of date. More children are born to single parents or out of wedlock, fewer couples are having children, fewer families find that there is any property to inherit, only debt (often due to the crushing expense of elder care alongside plummeting home values and stagnant wages), and more and more families are post-nuclear (divorces, remarriages, step-families, half-siblings, etc.). Furthermore, the industrial-bride complex is a multi-billion dollar industry (to say nothing of how much income “family law”–that is, divorce, pre-nuptial, and custodial law–generates) predicated on selling consumers on a romantic ideal of their “special day,” from which all mention of property and wealth is banished (save for the wealth generated by dressmakers, caterers, florists, and wedding planners).

Why? While I understand the historical reality that generated a controlling state-interest in marriage, it is clear that that historical moment is now over. People with assets can leave them to whomever they wish. Married couples without children–for whatever reason–and two incomes find themselves penalized in the tax code. The state operates on a definition of family, marriage, and sexuality that is out-of-date and impractical, yet in so doing, refuses to recognize millions of citizens *as* citizens, or even as humans.

I understand Butler’s position that to participate in those institutions, or to fight to be able to do so (marriage, the military) only strengthens them. Yet it seems to me that the two institutions are not parallel. Allowing gay warriors to serve openly in the military will strengthen the military in the best way: It will liberalize and diversify the military, strengthening our country as a whole. As for marriage, though, it seems like the state should get out of the wedding business altogether, allowing consenting adults to organize their private lives and households how they wish, and providing equal protection and opportunity to all.

2 Comments

  1. Like Butler, I’ve long been troubled by the apparently assimilationist goals of the campaigns for inclusion of sexual minorities in the institutions of state-sanctioned matrimony and military service, and I think it is critical that these not become the exclusive focus of LGBTQ political organizing. Nevertheless, I do think that the marriage-equality campaign has had a number of salutary effects, and I see the state’s interest in marriage as justifiable for several reasons.

    A key issue is the extent to which “certain kinds of rights and benefits are secured only through establishing marital status.” Butler’s examples include the right to adopt children (reserved to legally married persons at the time of her writing in France and in some U.S. states), the right to receive inheritance, and the right to executive medical decision-making. I agree that these and other rights, such as the legal standing to bring a wrongful-death action and the right to collect survivor benefits, should not be contingent upon marital status. Individuals should be able to assign these prerogatives to whomever they choose. As you have pointed out, in many cases, they can, through legal instruments such as wills, advance medical directives, and durable power-of-attorney letters.

    What marriage offers, to those whose relationships fit the criteria, is one-stop-shopping for all of these rights. If you have ever considered adding an unmarried partner as a beneficiary to a health-insurance policy provided by an employer who allows such, you know that establishing a qualifying domestic-partner relationship often requires considerably more documentation than a marriage certificate does. And satisfying those criteria may still not address many of the prerogatives granted automatically by marriage: you might, for instance, have named each other heirs in your wills and established a common residence and opened a joint banking account, but still later be denied admittance to your partner’s hospital room or be socked with a real-estate-transfer tax when she makes you a co-owner of her property. Negotiating each of these issues individually takes time and good legal advice and, generally speaking, the kind of cultural capital that is more accessible as one ascends the ladder of socieconomic class.

    Speaking of economic class, another important function of marriage law as it exists in the United States today is to protect the economic interests of the less-powerful partner. If one spouse subordinates his/her career and earning power to the other’s, community-property laws protect the lower-earning spouse from destitution in the event of the marriage’s dissolution. This attempt to balance unequal power is, in my view, a fine justification for state intervention into a relationship. A similar example is the landlord-tenant statutes enacted by many municipalities, which are very favorable to tenants. Unfortunately, the common practice is for landlords to require tenants to sign leases through which the tenants relinquish most of the rights granted to them by the city. This contravention of the standard protections for the economically less-powerful party is obviously possible in marriage, too. In prenuptial agreements, the less-powerful partner would usually be better served by the one-size-fits-all option.

    There remain, of course, the “1,138 rights and benefits.” This often-cited number, publicized by proponents of same-sex marriage, represents the General Accounting Office’s enumeration of federal statutory provisions relating to marital status as of 2004. Those legal references include regulations governing taxation, the disbursal of benefits, inheritance of tribal lands, immigration and naturalization, intellectual property, and conflicts of interest, among other topics. A few are probably better characterized as obligations than as rights or benefits.

    By the way, the marriage-equality movement’s appropriation of the “1,138 rights and benefits” is a delicious illustration of the way, as Butler says, “discursive practices not fully controlled by intention have disruptive and transformative effects”: This careful accounting of references to marital status in federal law was produced by the GAO at the behest of a senator who supported the federal Defense of Marriage Act.

    I haven’t examined each of these laws, but my general sense is that an ideal approach to this edifice of federal regulation would be not only to extend marriage to include single-sex partnerships, but also to expand these regulations, where possible, to recognize other kinds of kinship structures. The marriage-equality movement has laid important groundwork for any effort to expand these rights beyond the boundaries of marriage, simply by raising awareness of what’s at stake. A couple of years ago, it was difficult to walk a city street or browse through Facebook without encountering the number “1138” in a dramatic sans-serif typeface. Marriage-equality advocates have done a wonderful job of educating the public about the many benefits that are contingent upon marital status, and that, I think, is a necessary prelude to changing the contingent nature of those benefits.

    Nevertheless, while I oppose a situation in which marriage is the only route to securing those benefits, I think it should remain an option, for the reasons cited above. And there’s one more reason: I don’t agree that extending marriage to same-sex couples will simply strengthen, but not change or subvert, an oppressive institution.

    Friends of mine have sometimes rolled their eyes at the argument, often advanced by opponents of same-sex marriage, that opening marriage to single-sex couple will somehow alter the institution. I think it will. At the risk of running afoul of Butler’s objection to “levels,” the change single-sex marriage makes in the institution is more of a cultural than a legal one. Its effect is to ratify a legal change in marriage that has, in most parts of the United States, already taken place.

    Marriage in western culture has, as you point out, “overwhelmingly been an institution to promote the orderly transfer of property from one family to another, and as a vehicle for legitimizing the offspring of a union between a man and a woman–for the purposes of inheritance.” I’d add that–please note that I am not making an argument from any putatively universal essentials, but from legal history–that it has also overwhelmingly been the foundational unit of patriarchy, the primary instrument by which men controlled women and their fertility, the primary way male dominance was enforced at the ground level.

    Even within the United States, marriage laws are various, but at the time the United States was founded, the colonies all took their cue from English common law, which held that “By marriage, the husband and wife are one person in the law. The very being and legal existence of the woman is suspended during the marriage, or at least is incorporated into that of her husband under whose wing and protection she performs everything.” By 1900, all states had passed legislation granting married women some degree of control over their own property and earnings, but it wasn’t until 1981 that the U.S. Supreme Court invalidated state laws that gave husbands unilateral control over jointly owned community property. Married women were routinely denied the opportunity to apply for credit in their own names until the Equal Credit Opportunity Act was passed by Congress in 1974. Not until 1993 did all states outlaw marital rape (Nebraska was the first to do so, in 1976).

    In short, for most of the history of the United States, marriage has been a major constitutive component of legal male supremacy, with dominant and subordinate roles prescribed for men and women respectively. Many of the legal challenges and revisions that have recharacterized marriage as a partnership of equals
    (at least in theory) are quite recent. Fundamentalists who object to same-sex marriage on the grounds that it will change character of the institution do so because they still embrace the old model, in which only one partner could wear the pants. The spectacle of both partners–or neither partner–wearing the pants illustrates dramatically and concretely that we are not going back to a legal model of marriage in which roles, and power, are assigned automatically on the basis of sex. If there are two husbands, neither can be presumed to have unilateral control over community property by virtue of his maleness. If there are two wives, neither can be expected to yield control over her body and her fertility to the other because the “law of nature” demands that she do so.

    “Marriage Equality” as a campaign to include same-sex couples is, intentionally or not, also a standard-bearer for “marriage equality” within heteronormative relationships. I believe we can support that change without abandoning other alliances.

  2. and I think it is critical that these not become the exclusive focus of LGBTQ political organizing : what do you mean?
    looks like you watch Piano Briefs lol