The State and the Marriage Business

Russell Blackford

Here in Australia, as in many other parts of the world, there is an ongoing public debate about proposals to extend marriage to same-sex couples. As marriage falls within the federal jurisdiction under the Australian Constitution, this has led to public consultation processes involving the federal houses of Parliament (the House of Representatives and the Senate, not unlike the structure of the U.S. Congress). Predictably, religious organizations have been active in opposing any extension of the concept of marriage to same-sex partnerships, but they do not appear to have popular sentiment on their side.

During this debate, I have consistently argued in favor of same-sex marriage, as, indeed, I do in my new book, Freedom of Religion and the Secular State. Under current circumstances, the issue of same-sex marriage is an obvious and urgent focus for political attention. In the American context, the urgency is even greater than in Australia, since many important legal rights hinge on the presence of a valid marriage. Industrially advanced countries other than the United States—Australia among them—have been quicker to extend the same legal rights to de facto opposite-sex and same-sex couples. This takes some of the sting from political leaders’ unwillingness to recognize same-sex partnerships as marriages, but still, something smells bad about having a double standard even if all legal rights end up being the same.

Thus, I support moves for liberal democracies to recognize same-sex marriages for those who want them. In our current historical circumstances, the case seems very strong.

At the same time, the current debates have been raising more general questions about the role of the state in the area of marriage and family. Even as I write this, some news coverage is being given to a submission to the Australian Senate by Rebecca and James Dominguez, supposedly the “power couple” of the polyamory community in Australia. They argue for state recognition of same-sex marriage but also, in the longer term (perhaps over a period of decades), for increasing social and perhaps legal recognition of relationships involving multiple parties.

Even before we get to this possibility, there is a lurking question about traditional polygynous marriages, such as those permitted by Islam or those originally authorized by nineteenth-century Mormons (and still by some breakaway Mormon groups). Should these marital arrangements be recognized by the state? Not obviously, to say the least. One powerful reason for recognizing same-sex marriages is that they are likely to resemble the kinds of heterosexual partnerships that are celebrated in the contemporary practice of marriage. Given what marriage has become in recent centuries—largely a matter of intimacy and companionship—it is now difficult to make a rational distinction based on purely secular reasoning. The equation changes when we start to talk about polygyny.

The state should be very wary about recognizing relationships that tend to involve arranged relationships and patriarchal notions of authority, with little emphasis on romantic love or intimacy or the sort of long-term one-to-one companionship that many of us hope for when we marry. While I don’t argue that polygynous arrangements in themselves, as opposed to the more obvious abuses that are often associated with them (child brides, coercion, and outright rape), should be illegal, there is an important distinction between mere legality and official recognition. After all, same-sex partnerships are not actually illegal in countries such as Australia and the United States (in the latter, this would actually be unconstitutional); nor, however, are they usually recognized as marriages. While we have reached a point where it is anomalous for the state to give its recognition and (secular) blessing to opposite-sex couples who want it but not to same-sex couples, there is no such anomaly in refusing to recognize arrangements that go beyond couples to involve three or more people. Indeed, the state has every reason to be suspicious that women are pressured into polygynous arrangements by families and communities. Public policy should lean toward the protection of women from abuses and unconscionable pressures.

Still, do Rebecca and James Dominguez have a point? Apparently this couple is actually part of a happy and stable group of four or five people (I’m not sure I understand, from the media reports, exactly how it works!), confirming, perhaps, that one size does not fit all when it comes to intimate relationships. Should this happy gang be able to gain state recognition as a marriage? Well, I have no objection to their arrangement. There is no suggestion that it is patriarchal, involves any kind of coercion, or is in any other way undesirable from a viewpoint grounded in secular values. Apparently it suits the desires of the parties involved, so good luck to them.

All the same, I can’t see the state entering this field, even over a period of decades. There is no easy way to establish a legal template for what is potentially a bewildering variety of intimate arrangements. Nor are the parties involved in the Dominguez household seeking state recognition—and this will surely be typical. People involved in such nontraditional relationships are not likely to press for the same sort of legal recognition as is sought by many same-sex couples. It might, admittedly, be troublesome for them to make the exact legal arrangements they want, but that is an almost inevitable outcome of entering into non-standard and uncommon arrangements that don’t fit a particular template.

In the longer term, perhaps the state could recognize a wider range of relationships. Or perhaps not! Perhaps the best approach, long-term, is for the state to withdraw from the marriage business altogether. Surely we can agree that the governments of modern pluralistic democracies ought not to try to enforce a religious morality or to determine the one true way to lead a good life. So why are they still so active in the marriage business, giving a special imprimatur to one way of life over others?

The meaning, importance, and prestige of marriage have changed over time and will probably keep changing. Even now, marriage has ceased functioning as a means of allocating who may legally have sex with whom—most modern countries make no attempt to maintain or enforce laws relating to fornication and adultery. I expect that modern societies could function quite smoothly if a time came, down the track, when nobody at all opts for a formal, legally recognized marriage.

As I’ve stated elsewhere, I don’t argue for the state’s full withdrawal from the marriage business—not as a priority, and, indeed, not at this point in history. That would not be a realistic policy for any political party while marriage remains a socially glorified institution. Very well—as long as that continues, I see no good secular ground to deny recognition as marriage to any loving, intimate relationship between two people, irrespective of their sex.

All that said, will it be so bad if a time comes one day when marriage no longer seems needed as a legal institution? Here in Australia, Senator Eric Abetz has complained that the provision of same-sex marriage will lead to “the complete deconstruction of the institution that is marriage.” But why should it? I would have thought that it might even help shore up the institution if same-sex couples, or many of them, value it so much and start to take part in it.

But if, probably for quite other reasons, a time does come when the institution of marriage no longer seems needed, and when many combinations of people can join in workable and socially valued relationships, why shouldn’t we welcome it?

Russell Blackford

Russell Blackford is a conjoint senior lecturer in philosophy at the University of Newcastle (Australia) and a regular columnist for Free Inquiry. His latest book, The Tyranny of Opinion: Conformity and the Future of Liberalism (2019), is published by Bloomsbury Academic.

Here in Australia, as in many other parts of the world, there is an ongoing public debate about proposals to extend marriage to same-sex couples. As marriage falls within the federal jurisdiction under the Australian Constitution, this has led to public consultation processes involving the federal houses of Parliament (the House of Representatives and the …

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