Is marriage a contract? What does this mean for marriage equality?

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.

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23 Comments.

  1. But if marriage is “a contract to transcend the point of contract” (Hegel), then isn’t it still a contract? Maybe I’m not following you.

  2. It’s a typically helpful Hegelian formulation, certainly! I suppose it has to be an agreement in that both parties have to agree to it, but not a contract as we generally understand that word, with terms, arrangements for breaching, and so on.

  3. Thank you for the article and welcome to the blog.

    Regarding marriage equality, I feel people make arguments to support a more primal or deep ingrained position regarding same sex marriage.

    When I married my wife, I did not think about contracts or legal terms or anything like that. There were very simple things; I loved her and I wanted to spend the rest of my life with her.

    In my mind that is the essence of marriage; I love a person and I chose to be with that person. Infidelity can be considered a breach or a change of mind regarding this decision.

    Society provides a set of legal rights and responsabilities that in my opinion are derived from that decision. Inheritance rights, property rights, siblings education, everything is derived from that decision.

    Since some people of the same sex experience this type of love and/or union, then they should be given the same rights and access to marriage.

  4. Liz Dizley:
    An attitude re same-sex marriage as against civil unions of – I’m for it, whatever it is – does not meet the standard of what is to be expected of a philosopher engaged in conceptual analysis. It is just a reaction position against what one takes to be rebarbative forces. My own assumption about this inchoate demand is that it is like those of the conventional couples who think that a marriage in church is a ‘real’ marriage even though they have no religious faith. For them their marriage is solemnized. In a theological sense a priest is only a witness to the inner commitment of the parties before God. This is of course conceptually prior to the customs and usages of society.

    Homosexual couples may be just wanting this aura of solemnization which even many heterosexual couples do not think attaches to the registry office. How that can be wrought via a form of words is beyond my powers.

  5. @Michael

    It is entirely appropriate for a philosopher to show how one of the common objections to some phenomenon (in this case, marriage equality) rests on a misunderstanding of the nature of the phenomenon, and therefore lacks force. This is the case even if it isn’t possible to get entirely clear about the nature of the phenomenon in question (precisely because many objections will rely on the positive claim that the phenomenon does have some particular nature).

    It is also entirely reasonable to think that it is necessary to have good reasons to discriminate against some group of people (in this case, gay people, to the extent that they are not able to get married), in which case an attitude of “I’m for it, whatever it is” might well be exactly the right attitude towards some particular phenomenon (in this case, same-sex marriage).

  6. Liz has a strong point here. A contract is an agreement which is legally enforceable because vaulable consideration is given in exchange for a promise. The positive obligations of marriage are not legally enforceable, and even in the case of adultery etc, the only legal remedy is the dissolution of the marriage, not an injunction not to have affairs.

    Our civil marriages, by contrast, are still based on the century-old definition from Hyde -v- Hyde and Woodmansee of marraige as “a voluntary union”. A union would seem distinct from an agreement in that while the partners evidently have obligations, they are obligations within the union rather than ones that can be strictly defined against each other. To put Hegal’s point in another way, therefore, a marriage is a legal form of partnership that, uniquely, takes the relationship between the partners beyond a mere legal one.

    I don’t therefore agree that the demand for marriage equality is “inchoate”. I think it’s based on an undersatnding of the distinction between a contract and a union, and a desire that everyone should be able to enjoy the latter. That there is no significant legal difference between marriage and civil partnership is therefore beside the point: marriage is primarily a moral rather than a legal matter.

  7. Jeremy:
    Liz, as far as I can make out, has not been able to make out the precise point of discrimination against same sex civil unions except the ruling out of adultery as a legal reason for dissolution. An ordinary registry office marriage and a civil union performed in the same location are virtually indistinguishable. Is a form of words a problem or is there something else? Could we agree to call all by the same name of union? Would that do it? Would a ‘bond of fealty’ do?

    Mike:
    Can you clarify how this ‘union’ aspect as against a ‘contract’ could be legally established?

  8. Thanks everyone for the comments!

    Michael: I think we could all agree to call marriages/partnerships “unions” (or whatever) if they were all established and performed in the same way. My point about adultery was that this, an important difference in terms if marriage is a contract, is not perceived as a particularly important difference between civil partnerships and marriage – precisely because marriage is not a contract. If it’s seen to be a contract – which doesn’t work for a number of reasons, including those Mike and JJM list – then we can always look at how we can adapt the contracts to make them legally equivalent. This will never work, because it misunderstands the nature of marriage.

  9. @Michael – But the point is she doesn’t need to make out the precise point of discrimination (not least, because it might be something very subtle to do with history, symbolism, etc, etc; or, indeed, to do merely with how people perceive these things, or how people think that these things tend to be perceived).

    It’s entirely reasonable to think that the burden falls in the other direction: in other words, given that civil marriage and civil partnership are not the same; and given that civil marriage isn’t available to same-sex partners; then if you think that this state of affairs should continue to obtain, and that it is not discriminatory, the burden of proof falls upon you to substantiate this view.

    Until that happens, it is not on the face of it implausible to think that “I’m for it, whatever it is” is exactly the attitude that we should be taking towards this issue.

    Of course, this isn’t to argue that there is no merit in the attempt to tease out the “precise point of discrimination”, or that we should not consider the possibility that actually there is no discrimination, it’s simply to argue that it is entirely reasonable to suppose that one’s default position should be to be in favor of opening up civil marriage (at least) to everybody.

  10. I concur with Jeremy on the default position.

    Perhaps it is more accurate to describe marriage as a union or partnership rather than a legal contract. However, it appears to be irrelevant whether marriage can be defined as contract or a partnership or a union. Whether marriage is or is not a legal contract is not determinative of whether any rights or freedoms are being infringed upon.

    If and when a law formally recognises a union such as marriage and limits its usage to certain groups then the State must objectively justify its prima facie discriminatory practice. The question isn’t “why should gays couples be allowed to marry?”, it is “why shouldn’t gays couples be allowed to marry if straight couples can?”.

    So I’m not arguing that individuals have a positive right to have their unions formally recognized by law. Rather I am arguing that individuals have a negative right not to be discriminated against without an objective justification.

    I would therefore accept civil unions for all as an alternative.

  11. Let’s leave things as they are but change the title. I suggested ‘bond of fealty’ but ‘companion of life’s highway’ or ‘faithful whatever’ (an opportunity to craft your own), ‘vow fellow’, ‘promise partner’. The spiritual and occult aspect of marriage can be left undefined as it is resistant to philosophical investigation, the important thing being that this mysterious essence be made available to everyone. How would you know that you had got it and not some ersatz not worth the paper it’s written on? You couldn’t, this is an example of ‘a beetle in a box’ pace Wittgenstein.

  12. @Michael – Why would we need to change the title? I’m not sure the spiritual aspect of marriage is resistant to philosophical investigation (I’m assuming you mean “spiritual” as in something aside from the legal framework but not bound up with the religious aspect of marriage that many people feel it has – this was something I didn’t deal with in my post), but I think you can say what something isn’t without having to define precisely what it is.

    @Dan – I think you’re right about the burden of justifying discrimination, whether or not more can be said about why the arguments against extending marriage to same-sex coples don’t work (and I think more can be said).

    It’s interesting that you talk about having unions formalized/recognized – I think, particularly now most couples have longstanding relationships before they marry, marriage could be defined in a civil context not as a contract but as the recognition of a non-contractual union that already exists.

  13. @ Liz Disley: Indeed and there could well be a valid argument against extending marriage to same-sex couples. I just have not yet encountered one :wink:

    Yes, I would argue that marriage has always been the social affirmation of a relationship and the spiritual and legal aspects are merely ancillary to that primary foundation i.e. we would have marriage even if the Church and the law gave no formal recognition to it.

  14. Liz:
    Besides a sentiment that fits nicely on a t-shirt – civil union is not marriage- nothing has been presented in the form of an argument that backs it up. Your:
    but I think you can say what something isn’t without having to define precisely what it is.
    is a dubious basis for a legal framework. eg. I can what theft isn’t without having to define precisely what it is. It isn’t mountain climbing.

  15. @Dan Indeed – I’ve also never heard such an argument!

    @Michael But why couldn’t a civil union be a marriage? In such a case, wouldn’t it purely be a question of nomenclature? I’m not sure what the point of disagreement is here!

    My post wasn’t trying to provide a legal framework for marriage (which I don’t think needs to be changed, apart from extending it to same-sex couples), but arguing against a particular philosophical conception of what marriage is. I think that can be done without a fully fleshed-out alternative philosophical conception, although I have my own ideas on that (perhaps one for another post?) To use your example, people don’t generally think theft is mountain climbing, so it isn’t philosophically or legally interesting – lots of people think marriage is a contract.

  16. Liz:
    It’s hard for you to keep track of everything but what I wrote at 8:33
    Jeremy:
    Liz, as far as I can make out, has not been able to make out the precise point of discrimination against same sex civil unions except the ruling out of adultery as a legal reason for dissolution. An ordinary registry office marriage and a civil union performed in the same location are virtually indistinguishable. Is a form of words a problem or is there something else? Could we agree to call all by the same name of civil union? 

    answers your:
    @Michael But why couldn’t a civil union be a marriage? In such a case, wouldn’t it purely be a question of nomenclature? I’m not sure what the point of disagreement is here!

    There is then no disagreement on that point. Call it a marriage if you wish. Ordinary usage I read runs ‘Jack and Jim are getting married’ or ‘Jane and Jill are getting married’.

    @Dan:
    at 5:39 I wrote In a theological sense a priest is only a witness to the inner commitment of the parties before God. This is of course conceptually prior to the customs and usages of society.

    I am glad to read that you agree with this at 6:07:
    Yes, I would argue that marriage has always been the social affirmation of a relationship and the spiritual and legal aspects are merely ancillary to that primary foundation i.e. we would have marriage even if the Church and the law gave no formal recognition to it.

    You would probably leave out ‘before God’ but the important thing for the marriage of any two people is that it is an open declaration before the community which is usually witnessed and celebrated. This could be the virtual declaration of what is called common law marriage. How then from your point of view is a civil union not marriage? People are already calling them marriages.

  17. @ Michael Reidy:
    “This could be the virtual declaration of what is called common law marriage. How then from your point of view is a civil union not marriage? People are already calling them marriages.”

    A civil union is distinct from legal marriage insofar as the law formally recognizes them as conceptually distinct. Whether that distinction is derived from any differences in content or not is besides the point.

    You’re correct that as far as the couple and society are concerned a civil union could be considered a marriage and there is no conceptual difficulty that I can discern. The problem is that marriage inherently carries with it the highest level of social affirmation and therefore relegating homosexual couples to civil unions is giving their union inferior legal recognition irrespective of the privileges which the law provides.

    As I stated above I would also have no problem limiting all legal recognition to civil unions and removing legal marriage. Individuals could still call their civil unions a marriage, holy matrimony or whatever they want.. as could their society. Churches would continue to be free to solemnize whichever civil unions they want as they are free to do right now. They have no duty to perform a marriage ceremony for anyone, heterosexual or homosexual.

  18. So Dan change the title and the respect will follow. Is that realistic? In general law tends to lag behind a change in attitude rather than creating a change in attitude.

  19. Michael, I agree it does not necessarily cause a change in societal attitude but at least the law would not be perpetuating a discriminatory practice.

    I guess the point is homosexual couples should have equal recognition of their unions unless there is a reason for them not to. Labels do make a huge difference especially when they perpetuate a social prejudice toward a particular group.

    For example one might argue that having separate schools for blacks and whites is not an issue provided they receive the same access to education and quality of education. Even if that were the case the labelling itself would perpetuate a social prejudice toward one racial group. Whether removing the label eliminates the prejudice is another matter but should the law be in that business of discriminating in the first place?

    Sorry for the ramble but it is sometimes difficult to articulate these things more succinctly.

  20. maybe someone can help me understand something, see i got married 4 months ago and a month ago my husband ex-girlfriend started talking to him and they talk for 5-8 hours a day 5 days out of the week and they tell each other how they love,miss each other but when i asked him he said that he loves her as a sister but sends her love songs, also i asked him to stop talking to her for so much and he got mad, i was wondering if i should break it off? he has told me that he wont sleep around cause we are married and thats not how he was brought up but i still think its cheating if you have to talk like that with another girl. Am i wrong? If anyone can help me please i am going crazy and have been thinking of ending my life cause of this.
    thanks katie

  21. Hi Katie

    I’m not sure anybody here would be willing to say that you should leave your husband – though I’m tempted to say it – but certainly the situation you describe is not in the least bit okay.

    I’m not entirely comfortable discussing this with you here (because it’s public).

    Is it okay to send you an email? (I have your email because I’m the blog owner, but I don’t want to email without your permission.)

  22. I honestly can say I don’t understand what gives anyone the right to decide who can and can’t get married, regardless of personal feelings from one person to the next. If someone one wants to marry the same sex partner so be it.

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