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Get the State out of Marriage?

Daniel Cere

McGill University

(An edited version of this article appeared in Capital Xtra, a gay and lesbian magazine, April 5, 2022)

The debate over marriage began in earnest with the Ontario Superior Court decision in 2002. Halpern v. Canada concluded that the existing legal framework was discriminatory. However, it also recognized the complexity of the issues and urged public deliberation. It suggested three possible resolutions to remedy the situation: redefining marriage, creating a complementary category such as civil-unions, or the separation of marriage and the state.

The Liberals, NDP and the Bloc have aligned themselves with the “redefinition” option. The Conservatives opt for “civil unions.” The “disestablishment” option has not received serious attention from any political party.

Disestablishment does seem to be the most risqué option. No modern state has formally severed itself from the institution of marriage. However, disestablishment may eventually prove to be an attractive resolution for postmodern societies. The case for disestablishment can be made from radical, liberal and conservative sites on the political spectrum. This curious overlapping consensus merits some attention.

The disestablishment argument was originally cooked up on the left side of the political spectrum by radical social theorists such as Martha Fineman, Michael Warner, and Nancy Cott. They argue that the extension of marriage to gays and lesbians still leaves us trapped in the narrow tunnel of state-recognized “coupledom.” Instead of liberation, all relationships are now herded into the conjugal box. The marital norm not only governs straight relationships, but it also sets the norm for LGBT relationships. Gay liberation is domesticated into the well-heeled professional same-sex couple.

In this view, disestablishment frees the hot arena of sexuality from the cold constraining hands of the law. No preferred types of relational life are legally established or enforced. Formal constraints on the exuberant anarchy of relationships are finally removed. “Free at last, free at last…” so to speak.

The liberal case for disestablishment is somewhat more restrained and pragmatic. A liberal argument for disestablishment was put forward by the Law Commission of Canada in its 2001 report, Beyond Conjugality. This report argued that any “conjugal” framework fails on liberal grounds of justice, equality and inclusivity. Restricting legal recognition to “conjugal” relationships creates a sex-for-benefits regime that excludes a great number of adult close relationships that are as committed and interdependent as any marital alliance. Tagging a small number of gay and lesbian unions to the big heterosexual elephant does little to address the fact that this “reform” extends no benefits to the great number of adult close relationships that fall outside of the conjugal regime. Beyond Conjugality recommends the creation of legal “buddy” system that would offer legal protection for any citizen involved in interdependent adult relationships.

From a liberal perspective the disestablishment option also provides a nice way of dealing with the fact that the social consensus on marriage has broken down. Modern liberal states are now faced with deeply held and competing conceptions of the good of marriage. Some sectors of society identify with a close relationship conception of marriage as a union of consenting adults that embraces the diversity of conjugal relationships--straight, gay and lesbian. Others adhere to the historic conjugal conception of marriage as a sex-inclusive union that taps into the procreative ecology of opposite-sex bonding and creates a form of life that connects children with their natural parents. How does liberalism resolve this debate?

Some liberals take the high ground and argue that the state should adopt a stance of reserved neutrality in this highly charged arena, rather than attempting to enshrine a particular “doctrine” of marriage. The liberal state has backed off from any attempt to choose between competing conceptions of the good of religion. It has also backed off from direct control of the competitive market for economic goods. Perhaps the day has come for liberalism to back off from state control of competing conceptions of the good of marriage.

What about conservatives? Isn't disestablishment quite a stretch for these defenders of family values? Not really. Conservatism has always been a big fan of “civil society.” Civil society refers to the mediating institutions between the state and the individual. It consists of a diverse wealth of voluntary associations, religious communities, and cultural communities. Marriage, family and kinship groups are heart of civil society for conservative social theory.

Conservatives also harbour a steady suspicion of the modern state. They maintain that the modern state is one of the greatest threats to the soft-shelled fabric of civil society. Modern totalitarian regimes systematically destroy civil society institutions. However, civil society institutions can also be eroded by the constant political grooming and prodding of liberal regimes—Tocqueville's “soft despotism.” Conservatives believe that civil society institutions thrive best when the state gets off their back. These political instincts can give disestablishment a certain conservative appeal.

Does this overlapping consensus suggest grounds for a settlement? Should the state get out of marriage? Some will say, “No, we can't abolish marriage, it's too important an institution.” But disestablishment does not “abolish marriage,” it just gets the state out of the marriage business. Marriage will continue to flourish in civil society. Others say, “Conjugal bonds have a deep significance for human beings, we need the state to “valorize” these relationships.” Why? Religious affiliations also have a deep significance for many people, but we no longer expect the state to valorize these affiliations. Others say, “Close adult relationships inevitable involve complex forms of legal and economic interdependence.” True, but conjugality is an under-inclusive category that fails to address the variety of close adult relationships. Furthermore, the legal and economic rights and obligations can be dealt with either through private contract or an adult partnership regime.

Finally, others will say, “But what about the children?” Well, there's the rub. Children do get short changed in these heated debates over legal reconfigurations of adult intimacy. Advocates of disestablishment can argue that children and close adult relationships should be treated as two independent categories. Family law has already clearly separated the rights and obligations of parenthood from those of marriage. Martha Fineman argues that the law needs to take its attention off adult relationships and refocus on adult-child care-giving relationships. That may be so, but this deconstruction is also a symptom of problematic patterns of familial destabilization that have had a negative impact on the lives of children. Disestablishment works well in a world of free-standing sexuality and free-standing adult relationships. But the bedrooms of the nation still produce children and these little tykes do complicate adult relationships.

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