Commentary on Wedlocked: the Perils of Marriage Equality

Commentary on Wedlocked: The Perils of Marriage Equality

By Katherine Franke

 

Wedlocked is undeniably illuminating, thoughtful and provocative. Katherine Franke recovers the post-bellum history of freed slaves’ experience of marriage, a little explored story that stands as a counterpoint to more typical, celebratory accounts of marriage.  The book leverages the 19th century experience of African Americans to raise questions about the 21st century experience of marriage by gays and lesbians and, by extension, everyone else.

While sympathetic to people’s desire to marry, this book is a critique of marriage. It usefully cautions against expecting too much of marriage. Marriage is neither the single key to happiness, nor the means of alleviating economic inequalities or addressing other social problems.  Franke shows how  access marriage and the granting of entry to the institution functions as a clandestine means of social control. The relationship that seems, or promises, to set us free might instead subject us to yet new forms of social control.

In the history that Franke recounts, the freed slaves’ supposed freedom to marry was a mixed blessing.  As Franke notes, “the freedom to marry can quickly collapse into the compulsion to marry.” And so it did for the freed slaves.  Marriage may have undermined freedom as much as it enabled it.  Once freed slaves married, the men became liable for economic support of their women partners; the women became subject to the will of the men.  Far from freedom, marriage in the 19th century meant obligation; marriage subjected husbands to the power of the state, and wives to the power of their husbands.  This history is one of which we should remain mindful.

Of the many issues that this rich book implicates, I raise two. First, the link between past and present .  While Franke repeatedly  (and understandably) disclaims any desire to draw a strong analogy between the 19th century experiences of freed slaves and the 21st century  experiences of gays and lesbians, the book is unavoidably premised on a connection between past and present.  Its very structure poses the question: what can we learn about the present based on what happened in the past? The clear import of the history, in Franke’s view, is to “be careful what you wish for.”

In formulating a stance toward marriage today though, the history is less instructive than one might hope.  What’s most striking is how much marriage has changed between the 19th century and now.  The name, of course, remains the same.  But the legal regulation and cultural understandings of marriage have shifted dramatically. Marriage now entails fewer legal entitlements than ever.  In the 19th century, marriage was the central means of structuring sexual and familial relationships. Sex outside of marriage was criminal. Paternal relationships outside of marriage were unrecognized. And when people did marry, as Franke notes, the law rigidly structured their relationship, with husbands accorded one set of rights and obligations and wives another. The ability to leave a marriage was difficult as both a practical and legal matter.

Now, that 19th century architecture of marriage has fallen away.  The law recognizes and allows that sexual relations will occur outside of marriage.  Prohibitions of adultery and fornication are still on the books yet they are either typically not enforced or are likely unconstitutional. Throughout the nation, couples lives together and have sex without any fear of prosecution. Marriage also is no longer the sole means of establishing a parent-child relationship. One no longer has to be married to be recognized as a father.

Even within marriage, the partners are more treated as autonomous individuals that ever. Premarital agreements are no longer anathema.  Negotiation of the terms of a divorce is commonplace, and indeed is promoted in most jurisdictions.  Too, the legal structure of marriage is less gendered than ever.  Nearly all of the overtly gender based allocations of rights and responsibilities have been wiped away, a casualty of the constitutional prohibition of state sponsored sex discrimination.

Given the demise of the legal rules that channeled people into marriage, being married today is a more a choice and less an obligation.  The significance of marriage now is more cultural than legal. Marriage is more a cultural ideal than a legal institution.  People value marriage even as it’s legal benefits have diminished.

This brings me to my second issue:  What are we to make of the continuing appeal of marriage to most people? Notwithstanding frequent references  to the supposed economic benefits of marriage (including in Franke’s book), the reality is that for the highly educated two earner couples who are most likely to marry, those supposed economic benefits are either slight or non-existent.  Affluent, married two earner couples almost certainly pay more in federal and state income taxes than if they were unmarried. I suspect that for most highly educated, two earner couples that marriage penalty is not offset by other economic benefits.

The paradox of the quest for marriage then is that people desire marriage even as it, quite literally, costs them money, and offers comparatively few of the non-monetary legal rights that it did a century ago. Marriage functions now as a cultural ideal.  What people get from marriage is not legal entitlements so much as cultural cachet, social approval, recognition as having achieved the most admired of family forms.

I wonder then:  is the desire for marriage a form of false consciousness?  One might ask this question of everyone; is the fact that most Americans want to marry (and that some do so repeatedly) a misguided effort , a giving over of oneself to an ideology that is more constraining than liberating, that undermines rather than enables human flourishing?  More pointedly, has the movement for gay and lesbian liberation wrongly succumbed to a domesticated vision of life? Are the gains of the supposed stability of marriage outweighed by the loss of sexual freedom and by the eclipse of alternative forms of family?

When I raise these question with students when I teach Family Law, I am often struck not simply by their rejection of the gay liberation ethos, but instead by how utterly foreign and incomprehensible the questions seem to them.  My students can see a benefit of being young and unmarried but nearly all of them imagine themselves, at some point, as married.  They so take marriage for granted that the idea that a social movement would actively oppose or reject marriage seems to them nonsensical.  As it would to many people outside of law schools. And so, the question: Should  the message to these people, most Americans in fact, be that they are laboring under a form of false consciousness that they would do better to shed?

As fundamental as this question is, Franke seems equivocal about it.  As many of us are.

 

By Ralph Richard Banks

Jackson Eli Reynolds Professor of Law

Stanford Law School

rbanks@stanford.edu

 

 

 

 

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2 Responses

  1. False consciousness is a helpful phrase as we query whether we who support marriage — and having it provide more rights and duties than other relationships — will be sorry to get what we thought we wanted. Millennials who have come of age when marriage equality was a no-brainer come with different assumptions. As their personal lives develop in ways that either match marriage’s structure or fit better within marriage a la carte forms like Domestic Partnership and Reciprocal Beneficiaries, it may be that those alternatives get updated to fit those needs.

  2. Rick, thank you so much for reading and engaging “Wedlocked”. I appreciated the arguments you made in your book: “Is Marriage for White People?” You surely have thought hard about the relationship between marriage, respectability, and the collectively conjured notion/fantasy of a good life at stake in the cultural value we place on marriage.

    I suppose I would be less sanguine about the ways in which marriage has become a more egalitarian institution (“the legal structure of marriage is less gendered than ever” and “Throughout the nation, couples lives together and have sex without any fear of prosecution. Marriage also is no longer the sole means of establishing a parent-child relationship. One no longer has to be married to be recognized as a father.”) Just last month a bill was introduced into the Illinois legislature that would condition the issuance of a birth certificate to a child whose mother is unmarried on the mother naming the child’s father. Specifically, HB 6064 would establish that “if the unmarried mother cannot or refuses to name the child’s father, either a father must be conclusively established by DNA evidence or, within 30 days after birth, another family member who will financially provide for the child must be named, in court, on the birth certificate. Provides that absent DNA evidence or a family member’s name, a birth certificate will not be issued and the mother will be ineligible for financial aid from the State for support of the child.”

    This bill – a proposal that has a good chance of being enacted – renders legally invisible a child born to a woman who does not have a husband or some other man who will stand up and claim economic responsibility for the child, treats marriage as the only institutional structure for legitimate childbearing, and reinforces the notion that dependency must be privatized into the nuclear family – since the absence of a birth certificate renders the child and the mother ineligible for public benefits.

    So while same-sex couples celebrate the modernization of marriage as an institution that is finally divested of a heteronormative premise, we witness a resurgence of punitive measures brought against low income, largely women of color, whose sexual and reproductive lives are unlikely to satisfy this expectation. As I argue in the book, the win in the Obergefell case was tragically accomplished by redistributing shame from same-sex couples (whose decency is now manifest) to the domain of marital failure represented by the “unwed poor mother of color.” I wouldn’t suggest that this redistribution of shame was a conscious strategy pursued by the advocates of marriage equality, but rather it was a predicable effect of this campaign that we bear a responsibility to account for.

    Let’s talk more about this – I appreciate how difficult these issues are, and your book takes them up in a thoughtful and complex way. I am grateful that you have engaged Wedlocked so thoughtfully and look forward to the synergies that our two approaches produce.