The debate over marriage equality, as it moves towards its happy legal conclusion in many territories (most recently Scotland) is generally framed in terms of rights and, more specifically, the right to form a particular kind of contract. More precisely, the right to marry is generally conceived as the right to form a particular kind of contract, which is recognised in a particular way, with the person one chooses. This characterisation of marriage leaves the way open for a number of arguments against extending marriage to same-sex couples. Supporters of same-sex marriage might suggest that the underlying conceptualisation of marriage as a contract one has the right to enter into does not capture what we actually mean by “marriage”, in legal or everyday terms.
Supporters of marriage equality can make the simple argument that the burden of demonstration or argument falls squarely on those who would restrict marriage, just as would be the case with any other kind of equality. People who want to marry someone of the other sex are free to choose their partner, so long as they fulfil certain eligibility requirements, which are broadly the same in most territories. Discussions about the meaning and purpose of marriage become redundant; it is for the opponent of marriage equality to demonstrate why it should be restricted (and of course there are restrictions, for which good reasons can be given, not related to the sex of those who want to marry – partners must be over a certain age, able to consent, and not within the prohibited degree of family relationships, for example). Arguments in favour of inequality might relate specifically to marrying within a particular religion or denomination, and are thus not relevant to a proposal to extend only civil marriage to same-sex couples (although there might of course be religious objections to legal changes affecting civil institutions).
This argument – that we need no detailed debate about the nature, purpose and meaning of marriage to know there should be no inequality – seems, on one level, convincing, and takes the wind out of the anti-equality camp’s sails. But can such a move be performed without at least a basic agreement on the sort of thing that marriage is? Opponents of marriage equality often claim that extending marriage to same-sex couples changes the nature of marriage, as if marriage is an action performed by participants who fit a particular definition, whilst proponents of marriage equality often talk of marriage as if it were an institution to which some are denied the right of entry. Thus, the discussion remains at cross-purposes. Which definition fits better with our legal and everyday understanding of marriage?
Describing marriage as an institution seems on one level to fit well with a conception of marriage as a right, but to characterise it thus is awkward for a number of reasons. First, there is some further explanatory work to be done to explain why the right to marry is a claim-right against the state (or whomever sanctions and recognises marriages) which can be brought by two people, since it does not function as a simple individual claim-right, and most advocates of marriage equality do not want to argue additionally for polyandrous or polygynous marriage. Secondly, if we want to argue that marriage is a right, it is incumbent on us to pick out what, precisely, that right consists in, unless we want to say that the right to get married is purely a simple function of the right not to be discriminated against in an arbitrary fashion (which we might). That approach would fit in well with the claim that we need not investigate the nature of marriage to know that it should not be arbitrarily restricted, but it prevents us accounting for the particular harm caused by forbidding a couple from marrying (and indeed, the harm done to gay people who do not, or do not immediately, want to marry).
The discussion about same-sex marriage in the UK has brought these issues into particularly sharp relief. Since 2004, same-sex couples have been able to register civil partnerships which, many argue, convey all the rights and privileges of marriage. Civil partners are treated exactly the same as spouses for the purposes of, for example, inheritance law, tax, benefits and welfare, and civil partnerships can be dissolved in a very similar process to married couples who divorce. There is one essential difference: whilst a member of a heterosexual married couple can file for divorce on the basis of adultery, the same cannot be used as a category for the dissolution of a civil partnership, since adultery, by legal definition, can only be between a man and a woman. Sexual fidelity is therefore built in to the definition of marriage – or perhaps the definition of divorce – in a way that it is not built into the concept of a civil partnership, or dissolution of that partnership (although being sexually unfaithful can form part of a petition for unreasonable behaviour).
It doesn’t seem, however, that what advocates of marriage equality in the UK are arguing for is the right of a member of a same-sex couple to divorce a spouse in cases of sexual infidelity. Nor, however, does the difference between civil partnerships and marriage seem to be perceived as a case of simple nomenclature. When opponents of same-sex marriage state that civil partnerships do all the “work”, in terms of rights and responsibilities, of marriages (the small detail about adultery notwithstanding), the underlying assumption is that marriage is a contract. The terms are the same in a marriage and in a civil partnership, the legal recognition is the same. The underlying assumption for those who oppose this view and argue for marriage equality is often that marriage is not a contract, which is why marriage also can’t be replaced by legal provisions for people to name their same-sex partners as beneficiaries of their estate, health insurance, and so on.
Those who assume that marriage is not a contract are correct, and this argument goes back to the late 18th and early 19th centuries (at least). Hegel’s claim that marriage is a contract to transcend the point of contract comes far closer to the way we actually understand marriage than Kant’s claim that marriage is a contract between people for the mutual use of each other’s goods and genitalia. If marriage is a contract, what are its terms? Can spouses sue for breach of them, as they might for other types of contract over and above applying to dissolve the original contract? Marriage does not fit the typical legal or empirical pattern of a contract. Even in cases where a marriage functions well, there will likely be an asymmetry in duties, with spouses performing different tasks and shouldering different aspects of practical and less-practical burdens in ways often unrelated to sex or gender. Of course, one can have contracts that stipulate asymmetrical duties, but the ways in which this might be required cannot generally be forseen when a marriage is ‘contracted’.
Whatever marriage is, it is a great conceptual and terminological strain to call it a contract which people should (or do) have the right to form. Getting rid of this underlying understanding means that many typical objections to marriage equality miss the mark entirely.