It’s a little before six in the morning and quite cold on the beach. It’s low tide, and the sand is wet and hard-packed and stony. This early on a Sunday, there are often only two people here, on the California coast just north of San Diego. Patricia Churchland is throwing a rubber ball into the ocean for her two dogs (Fergus and Maxwell, golden retrievers) to fetch. Her husband, Paul Churchland, is standing next to her. They are both wearing heavy sweaters. They are in their early sixties. They are tall—she is five feet eight, he is six feet five. They come here every Sunday at dawn.
Pat is constantly in motion, throwing the ball, stepping backward, rubbing her hands together, walking forward in a vigorous, twitchy way. She has pale eyes, a sharp chin, and the crisp, alert look of someone who likes being outside in the cold. (Even when it is sunny, she looks as though she were enjoying a bracing wind.) She seems younger than she is: she has the anxious vitality of a person driven to prove herself—the first to jump off a bridge into freezing water. Paul stands heavily, his hands in his pockets. He is still. He nudges at a stone with his foot. He looks up and smiles at his wife’s back. He has a thick beard. He looks like the sort of person who finds it soothing to chop his own wood (and in fact he is that sort of person).
Paul and Pat met when she was nineteen and he was twenty, and they have been married for almost forty years. They are both Canadian; she grew up on a farm in the Okanagan Valley, he, in Vancouver. They have two children and four grandchildren. They live in Solana Beach, in a nineteen-sixties house with a small pool and a hot tub and an herb garden. Each summer, they migrate north to a tiny island off the Vancouver coast. Both are professors of philosophy at the University of California at San Diego. They have been talking about philosophy together since they met, which is to say more or less since either of them encountered the subject. They test ideas on each other; they criticize each other’s work. At this point, they have shaped each other so profoundly and their ideas are so intertwined that it is impossible, even for them, to say where one ends and the other begins. Their work is so similar that they are sometimes discussed, in journals and books, as one person. Some of their theories are quite radical, and at the start of their careers the Churchlands were not always taken seriously: sometimes their ideas were thought silly, sometimes repugnant, verging on immoral. In those days, they formed a habit of thinking of themselves as isolates aligned against a hostile world, and although they are now both well established in their field, the habit lingers.
“For the first twenty-five years of our career, Pat and I wrote only one paper together,” Paul says, “partly because we wanted to avoid—”
“We wrote more than that,” Pat says.
“Together? I thought ‘Stalking the Wild Epistemic Engine’ was the first.”
“There was ‘Functionalism, Intentionality, and Whatnot.’ ”
“O.K., so there’s two. In the early stages, when Pat wrote her papers she said, ‘Paul, you really had a lot of input into this, should we put your name on it?’ I’d say, ‘No, I don’t want people saying Pat’s sailing on Paul’s coattails.’ ”
The guiding obsession of their professional lives is an ancient philosophical puzzle, the mind-body problem: the problem of how to understand the relationship between conscious experience and the brain. Are they different stuffs: the mind a kind of spirit, the brain, flesh? Or are they the same stuff, their seeming difference just a peculiarly intractable illusion? And if they are the same stuff, if the mind is the brain, how can we comprehend that fact? What can it possibly mean to say that my experience of seeing blue is the same thing as a clump of tissue and membrane and salty liquid?
Think of some evanescent emotion—apprehension mixed with conceit, say. Then think, That feeling and that mass of wet tissue—same thing. Or think of the way a door shutting sounds to you, which is private, inaccessible to anyone else, and couldn’t exist without you conscious and listening; that and the firing of cells in your brain, which any neuroscientist can readily detect without your coöperation—same thing. The terms don’t match, they don’t make sense together, any more than it makes sense to ask how many words you can fit in a truck. That is the problem.
In the past, it seemed obvious that mind and matter were not the same stuff; the only question was whether they were connected. Everyone was a dualist. In the seventeenth century, Leibniz thought that mind and body only appeared to interact because God had established a perfectly synchronized harmony between them (an ingenious theory impossible to refute). Descartes believed that the mind was composed of a strange substance that was not physical but that interacted with the material of the brain by means of the pineal gland. Nowadays, few people doubt that the mind somehow is the brain, but although that might seem like the end of the matter, all that’s necessary to be clear on the subject, it is not. It is not enough to imagine that the brain houses the mind (in some obscure cavity, perhaps tiny intracellular pockets), or gives rise to the mind (the way a television produces an image), or generates the mind (a generator producing current): to imagine any of those things is to retain the idea that the mind and the brain are distinct from each other. The problem is not one of knowledge; the problem is our obdurate, antediluvian minds that cannot grasp what we believe to be true.
Some philosophers think that we will never solve this problem—that our two thousand years of trying and failing indicate that it’s likely we are no more capable of doing so than a goat can do algebra. Others believe that someday a conceptual revolution will take place, on a par with those of Copernicus and Darwin, and then all at once it will be clear how matter and mind, brain and consciousness, are one thing. Paul and Pat Churchland believe that the mind-body problem will be solved not by philosophers but by neuroscientists, and that our present knowledge is so paltry that we would not understand the solution even if it were suddenly to present itself. “Suppose you’re a medieval physicist wondering about the burning of wood,” Pat likes to say in her classes. “You’re Albertus Magnus, let’s say. One night, a Martian comes down and whispers, ‘Hey, Albertus, the burning of wood is really rapid oxidation!’ What could he do? He knows no structural chemistry, he doesn’t know what oxygen is, he doesn’t know what an element is—he couldn’t make any sense of it. And if some fine night that same omniscient Martian came down and said, ‘Hey, Pat, consciousness is really blesjeakahgjfdl!’ I would be similarly confused, because neuroscience is just not far enough along.” Philosophers have always thought about what it means to be made of flesh, but the introduction into the discipline of a wet, messy, complex, and redundant collection of neuronal connections is relatively new. Nowadays, it seems obvious to many philosophers that if they are interested in the mind they should pay attention to neuroscience, but this was not at all obvious when Pat and Paul were starting out, and that it is so now is in some measure due to them.
The Churchlands like to try, as far as possible, not only to believe that they themselves are thoroughly physical creatures but also to feel it—to experience their thoughts as bodily sensations. They have never thought it a diminishment of humanness to think of their consciousness as flesh—quite the opposite. And they are monists in life as they are in philosophy: they wonder what sort of organism their marriage is, its body and its mental life, beginning when they were unformed and very young—all those years of sharing the same ideas and the same dinners. When they met, Paul and Pat were quite different, from each other and from what they are now: he knew about astronomy and electromagnetic theory, she about biology and novels. But as time went on they taught each other what they knew, and the things they didn’t share fell away. Their family unity was such that their two children—now in their thirties—grew up, professionally speaking, almost identical: both obtained Ph.D.s in neuroscience and now study monkeys. Paul sometimes thinks of Pat and himself as two hemispheres of the same brain—differentiated in certain functions but bound together by tissue and neuronal pathways worn in unique directions by shared incidents and habit. This is not a fantasy of transparency between them: even one’s own mind is not transparent to oneself, Paul believes, so to imagine his wife’s brain joined to his is merely to exaggerate what is actually the case—two organisms evolving into one in a shared shell.
“It’s funny the way your life is your life and you don’t know any other life,” Pat says. “I don’t know what it would have been like if I’d been married to—”
“A patent lawyer?”
“Something like that. It’s hard for me to imagine.”
“I think the two of us have been, jointly, several orders of magnitude more successful than at least I would have been on my own,” Paul says. “I’d like to understand that better than I do; I presume it’s got something to do with the brain. You could say, well, we exchanged a lot of oxytocin, but that’s probably one per cent of the story.” (Oxytocin is a peptide produced in the body during orgasm and breast-feeding; when it is sprayed into the noses of experimental subjects, they become more trusting and coöperative.) “To what extent has Pat shaped my conceptual framework and hence my perceptions of the world, and to what extent have I done that for her? I think the answer is, an enormous extent. But I don’t know how to unwind it.”
“We’ve been married thirty-six years, and I guess we’ve known each other for forty-two or something like that. That’s a long time.”
“Thirty-seven years. Weren’t we married in ’69? Almost thirty-eight.”
“That is a long time.”
The tide is coming in. A few more people have arrived at the beach—there are now a couple of cars parked next to the Churchlands’ white Toyota Sequoia. Pat and Paul walk up toward the road. The dogs come running out of the sea, wet and barking.
Pat Churchland grew up in rural British Columbia. Her parents owned an orchard—in the summer the Okanagan Valley is hot enough for peaches. “We used to regale people with stories of life on the farm because they thought it was from the nineteenth century,” Pat says.
“You had chickens, you had a cow,” Paul says.
“We didn’t have an indoor toilet until I was seven. We had a two-holer, and people actually did sit in the loo together. I know it seems hilarious now.”
When Pat was a teen-ager, she worked in a fruit-packing plant. Neither of her parents was formally educated past the sixth grade. In her understanding of herself, this kind of childhood is very important. To her, growing up on a farm in the middle of nowhere means that you have no patience for verbiage, you are interested only in whether a thing works or not. And if it doesn’t work you had better figure out how to fix it yourself, because no one is going to do it for you.
When Pat went to college, she decided that she wanted to learn about the mind: what is intelligence, what it is to reason, what it is to have emotions. She found that these questions were not being addressed in the first place she looked, psychology—many psychologists then were behaviorists—but they were discussed somewhat in philosophy, so she started taking philosophy courses. She met Paul in a Plato class, her sophomore year. She soon discovered that the sort of philosophy she was being taught was not what she was looking for. At the time, in the nineteen-sixties, Anglo-American philosophy was preoccupied with language—many philosophers felt that their task was to untangle the confusions and incoherence in the way people spoke, in the belief that disagreements were often misunderstandings, and that if our concepts were better sorted out then our thinking would also be clearer. This held no great appeal for Pat, but one thing led to another, and she found herself in philosophy graduate school at the University of Pittsburgh. The department was strong in philosophy of science, and to her relief Pat found people there who agreed that ordinary language philosophy was a bit sterile. At Pittsburgh, she read W. V. O. Quine’s book “Word and Object,” which had been published a few years earlier, and she learned, to her delight, that it was possible to question the distinction between empirical and conceptual truth: not only could philosophy concern itself with science; it could even be a kind of science.
After a year, she moved to Oxford to do a B.Phil. Philosophy at Oxford at the time was very far from Pittsburgh—quite conservative, not at all empirically oriented. Nobody seemed to be interested in what she was interested in, and when she tried to do what she was supposed to she was bad at it. It was all very discouraging. She was beginning to feel that philosophy was just a lot of blather. “The idea seemed to be that, if you analyzed your concepts, somehow that led you to the truth of the nature of things,” she says. “It was just garbage.” She was about to move back to Canada and do something else entirely, maybe go into business, but meanwhile Paul Churchland had broken up with the girlfriend he’d had when they were undergraduates and had determined to pursue her. He came over to Oxford for the summer, and they rented a little house together on Iffley Road. Paul had started thinking about how you might use philosophy of science to think about the mind, and he wooed Pat with his theories.
At Pittsburgh, where he had also gone for graduate school, he had learned to be suspicious of the intuitively plausible idea that you could see the world directly and form theories about it afterward—that you could rely on your basic perceptions (seeing, hearing, touching) being as straightforwardly physical and free from bias as they appeared to be. He concluded that we cannot help perceiving the world through the medium of our ideas about it. It’s not just a matter of what we pay attention to—a farmer’s interest might be aroused by different things in a landscape than a poet’s—but of what we actually see. In the course of that summer, Pat came to look at philosophy quite differently. “I stayed in the field because of Paul,” she says. “Gradually, I could see all kinds of things to do, and I could see what counted as progress.” Philosophy could actually change your experience of the world, she realized. And if it could change your experience of the world then it had the potential to do important work, as important as that of science, because coming to see something in a wholly different way was like discovering a new thing.
Paul didn’t grow up on a farm, but he was raised in a family with a practical bent: his father started a boat-works company in Vancouver, then taught science in a local high school. His mother took in sewing.
“I guess I have long known that there was only the brain,” Pat says.
“When you were six years old?” Paul says.
“Well, no, of course not.”
“I remember deciding at about age eleven or twelve, after a discussion with my friends about the universe and did God exist and was there a soul and so forth,” Paul says. “I’d been skeptical about God. My parents weren’t religious. I would ask myself, What do you think thinking is? And I’d say, I guess it’s just electricity.”
Paul as a boy was obsessed with science fiction, particularly books by Robert Heinlein. He vividly remembers “Orphans of the Sky,” the story of a young man named Hugh Hoyland. Hugh lives in a world called the Ship, which is run by scientists—all except for the upper decks, where it is dangerous to venture because of the mutants, or “muties,” who live there. One day, Hugh is captured by an intelligent two-headed mutie named Joe-Jim, who takes him up to the control room of the Ship and shows him the sky and the stars. All at once, Hugh realizes that what he had been told were inscrutable religious metaphors were in fact true: the Ship is not the whole universe after all but merely a thing inside it, and it is actually making some sort of journey. He tries to explain this to the scientists, but they tell him he is talking nonsense. How could the Ship move when the Ship is all there is? “Orphans of the Sky” is a classic philosophical fable, a variant of Plato’s story about prisoners in a cave who mistake shadows cast on the wall for reality. Its moral is not very useful for day-to-day work, in philosophy or anything else—what are you supposed to do with it?—but it has retained a hold on Paul’s imagination: he always remembers that, however certain he may be about something, however airtight an argument appears or however fundamental an intuition, there is always a chance that both are completely wrong, and that reality lies in some other place that he hasn’t looked because he doesn’t know it’s there.
Paul’s father had a woodworking and metal shop in the basement, and Paul was always building things. He planned eventually to build flying saucers, and decided that he was going to be an aerodynamical engineer. He stuck with this plan when he got to college, taking courses in math and physics. But the summer after his first year he found himself hanging around with a group of friends who could make sophisticated arguments about the existence of God. Paul was at a disadvantage not knowing what the ontological argument was, and he determined to take some philosophy classes when he went back to school. Although he was trained, as Pat was, in ordinary language philosophy, by the time he graduated he also was beginning to feel that that sort of philosophy was not for him. When he got to Pittsburgh, Wilfrid Sellars became his dissertation adviser. In the mid-nineteen-fifties, a few years before Paul became his student, Sellars had proposed that the sort of basic psychological understanding that we take for granted as virtually instinctive—if someone is hungry, he will try to find something to eat; if he believes a situation to be dangerous, he will try to get away—was not. Concepts like “beliefs” and “desires” do not come to us naturally; they have to be learned. Nor were they simply descriptive: we do not see beliefs, after all—we conjecture that they are there based on how a person is behaving. No, this kind of ordinary psychological understanding was something like a theory, a more or less coherent collection of assumptions and hypotheses, built up over time, that we used to explain and predict other people’s behavior.
In writing his dissertation, Paul started with Sellars’s idea that ordinary or “folk” psychology was a theory and took it a step further. If folk psychology was a theory, Paul reasoned, it could turn out to be wrong. It had happened many times, after all, that understandings that felt as fundamental and unshakable as instincts turned out to be wrong. Our folk geology—the evidence of our eyes and common sense—told us that the earth was flat, and while it still might look that way we accepted that it was an illusion. Our folk biology told us that if we slammed a hand in a door we would feel pain at the point of contact—and, while we still felt pain in the hand, we now knew that the pain signal had to travel away from the hand to the brain before we experienced it. Folk psychology, too, had suffered corrections; it was now widely agreed, for instance, that we might have repressed motives and memories that we did not, for the moment, perceive. Surely it was likely that, with progress in neuroscience, many more counterintuitive results would come to light. How probable was it, after all, that, in probing the brain, scientists would come across little clusters of “belief” neurons? It wasn’t that beliefs didn’t exist; it was just that it seemed highly improbable that the first speakers of the English language, many hundreds of years ago, should miraculously have chanced upon the categories that, as the saying goes, carved nature at its joints. It might turn out, for instance, that it would make more sense, brain-wise, to group “beliefs about cheese” with “fear of cheese” and “craving for dairy” rather than with “beliefs about life after death.”
Mental life was something we knew very little about, and when something was imperfectly understood it was quite likely that we would define its structure imperfectly, too. It was only rarely that, in science, you started with a perfectly delimited thing and set out to investigate it; more often, your definition of what it was that you were looking at would change as you discovered more about it. (“Consider the medieval physicists who wondered what fire could be,” Pat says. “They identified a range of things that they thought were instances of fire: burning wood, the sun, comets, lightning, fireflies, northern lights. They couldn’t give a definition, but they could give examples that they agreed upon. Jump now to the twentieth century. The category of fire, as defined by what seemed to be intuitively obvious members of the category, has become completely unstuck. Turns out that burning wood is actually oxidation; what happens on the sun has nothing to do with that, it’s nuclear fusion; lightning is thermal emission; fireflies are biophosphorescence; northern lights are spectral emission.”)
Why, Paul reasoned, should we assume that our everyday psychological notions are any more accurate than our uninformed notions about the world? Why should we suppose introspection to be infallible when our perception is so clearly fallible in every other way? Paul speculated that it might, someday, turn out that a materialist science, mapping the structure and functions of the brain, would eliminate much of folk psychology altogether. Some folk categories would probably survive—visual perception was a likely candidate, he thought. Attention, perhaps. Representation. But not much more than that.
Pat and Paul married in 1969 and found jobs together at the University of Manitoba, in Winnipeg.
“Winnipeg was basically like Cleveland in the fifties,” Pat says. “Very innocent, very free. The kids look back on those years in Winnipeg as being . . .”
“A great bonus?”
“Yes. Despite the weather. You’d just go out on your front steps and holler when it was dinnertime. You’d have no idea where they were.”
“There wasn’t much traffic. The kids were like a flock of pigeons that flew back and forth from one lawn to another.”
The University of Manitoba was not the sort of place to keep close track of a person’s publications, and, for the first time, Pat and Paul felt that they could pursue whatever they liked. Pat decided that if she was ever going to really get at the questions she was interested in she had to know more about the brain, so she presented herself to the medical school and asked permission to study neuroanatomy and neurophysiology with the medical students.
While she was at Oxford, she had started dipping into science magazines, and had read about some astonishing experiments that had been performed in California on patients whose corpus callosum—the nerve tissue connecting the two cerebral hemispheres—had been severed, producing a “split brain.” This operation had been performed for some years, as a last-resort means of halting epileptic seizures, but, oddly, it had had no noticeable mental side effects. Then someone had come up with the idea of stimulating the hemispheres independently, and it had been discovered that the severing did indeed produce some rather strange results. If the word “hat,” for instance, was shown only to the right side of the visual field (controlled by the verbally oriented left hemisphere), the patient had no trouble saying what it was, but if it was shown to the left (controlled by the almost nonverbal right hemisphere), he could not—indeed, he would claim not to have seen a word at all—but he could select a hat from a group of objects with his left hand.
“It was amazing that you could physically separate the hemispheres and in some sense or other you were also separating consciousness,” Pat says. “In one way, it shouldn’t be a surprise, I suppose, if you think that the mind is the brain. On the other hand, the fact that you can separate a sense of self—that was tremendously important. People had done split brains before, but they didn’t notice anything. They thought, What’s this bunch of tissue doing here—holding the hemispheres together? But you don’t need that, because they’re not going to go anywhere, so what is it? You had to really know the physiology and the anatomy in order to ask the questions in the right way.”
“There were cases when a split-brain patient would be reading a newspaper, and, since it’s only the left brain that processes language, the right brain gets bored as hell, and since the right brain controls the left arm the person would find that his left hand would suddenly grab the newspaper and throw it to the ground!” Paul says.
“Well, it wasn’t quite like that. It wasn’t like he was surprised. It just kind of happened.”
Some of the experiments sounded uncannily like cases of spiritual possession. One patient had a pipe placed in his left hand that he could feel but not see; then he was asked to write with his left hand what it was that he had felt. His left hand began very slowly to form the letters “P” and “I”; but then, as though taken over by a ghost, the hand suddenly began writing quickly and fluently, crossed out the “I” and completed the word “PENCIL.” Then, as though the ghost had been pushed aside again, the hand crossed out “PENCIL” and drew a picture of a pipe. It seemed, the experimenters concluded, that the left hemisphere, impatient with the left hand’s slow writing, had seized control of the hand and had produced the word “PENCIL” as a guess, based on the letter “P,” but then the right hemisphere had taken over once again and corrected it. There appeared to be two distinct consciousnesses inside a person’s head that somehow became one when the brain was properly joined. Or one self torn in two.
At the medical school in Winnipeg, Pat was assigned a brain of her own, which she kept in the lab in a Tupperware pot filled with formaldehyde. Later, she observed neurosurgeries, asking the surgeon’s permission to peer in through the hole in the scalp to catch a glimpse of living tissue, a little patch of a brain as it was still doing its mysterious work. She attended neurology rounds. The first neurological patient she saw was himself a neurosurgeon who suffered from a strange condition, owing to a lesion in his brain stem, that caused him to burst into tears at the slightest provocation. He would sob and shake but at the same time insist that he was not feeling in the least bit sad. This made an impression on her, partly because she realized how it would have flummoxed a behaviorist to see this complete detachment of behavior and inward feeling and partly because none of the neurologists on the rounds were surprised. The condition, it appeared, was not all that uncommon. She encountered patients who were blind but didn’t know it. “That really kicked the slats out of the idea that you can learn very much about the nature of the mind or the nature of the brain by asking what’s imaginable,” she says. “It’s not imaginable to me that I could be blind and not know it, but it actually happens. So its being unimaginable doesn’t tell me shit!”
Each evening, after the children were in bed, she would teach Paul everything she had learned that day, and they would talk about what it meant for philosophy. They later discovered, for instance, that the brain didn’t store different sorts of knowledge in particular places—there was no such thing as a memory organ. Even dedicated areas like the visual cortex could be surprisingly plastic: blind people, and people who could see but had been blindfolded for a few days, used the visual cortex to read Braille, even though that would seem to be a thoroughly tactile activity. All this boded well for Paul’s theory that folk-psychological terms would gradually disappear—if concepts like “memory” or “belief” had no distinct correlates in the brain, then those categories seemed bound, sooner or later, to fall apart.
Gradually, Pat and Paul arrived at various shared notions about what philosophy was and what it ought to be. They agreed that it should not keep itself pure: a philosophy that confined itself to logical truths, seeing itself as a kind of mathematics of language, had sealed itself inside a futile, circular system of self-reference. Why shouldn’t philosophy concern itself with facts? Why shouldn’t it get involved with the uncertain conjectures of science? Who cared whether the abstract concepts of action or freedom made sense or not? Surely it was more interesting to think about what caused us to act, and what made us less or more free to do so? Yes, those sounded more like scientific questions than like philosophical ones, but that was only because, over the years, philosophy had ceded so much of the interesting territory to science. Why shouldn’t philosophy be in the business of getting at the truth of things?
They were confident that they had history on their side. In the classical era, there had been no separation between philosophy and science, and most of the men whom people now thought of as philosophers were scientists, too. They were thought of as philosophers now only because their scientific theories (like Aristotle’s ideas on astronomy or physics, for instance) had proved to be, in almost all cases, hopelessly wrong. Over the years, different groups of ideas had hived off the mother sun of natural philosophy and become proper experimental disciplines—first astronomy, then physics, then chemistry, then biology, psychology, and, most recently, neuroscience. Becoming an experimental discipline meant devising methods that allowed propositions to be tested that had previously been mere speculation. But it did not mean that a discipline had no further need of metaphysics—what, after all, would be the use of empirical methods without propositions to test in the first place? Philosophy could still play a role in science: it could examine the concepts that scientists were working with, testing them for coherence, and it could serve as science’s speculative branch, imagining hypotheses that were too outlandish or too provisional for a working scientist to bother with but which might, in the future, yield unexpected fruit.
In 1974, when Pat was studying the brain in Winnipeg and Paul was working on his first book, Thomas Nagel, a philosopher at Princeton who practiced just the sort of philosophy that they were trying to define themselves against, published an essay called “What Is It Like to Be a Bat?” Imagine being a bat, Nagel suggested. You are small and covered with thin fur; you have long, thin arms attached to your middle with webbing; you are nearly blind. During the day, you hang upside down, asleep, your feet gripping a branch or a beam; at dusk you wake up and fly about, looking for insects to eat, finding your way with little high-pitched shrieks from whose echoes you deduce the shape of your surroundings. “Insofar as I can imagine this (which is not very far),” he wrote, “it tells me only what it would be like for me to behave as a bat behaves. But that is not the question. I want to know what it is like for a bat to be a bat.”
The purpose of this exercise, Nagel explained, was to demonstrate that, however impossible it might be for humans to imagine, it was very likely that there was something it was like to be a bat, and that thing, that set of facts—the bat’s intimate experience, its point of view, its consciousness—could not be translated into the sort of objective language that another creature could understand. Humans might eventually understand pretty much everything else about bats: the microchemistry of their brains, the structure of their muscles, why they sleep upside down—all those things were a matter of analyzing the physical body of the bat and observing how it functioned, which was, however difficult, just part of ordinary science. But what it is like to be a bat was permanently out of the reach of human concepts.
This shouldn’t be surprising, Nagel pointed out: to be a realist is to believe that there is no special, magical relationship between the world and the human mind, and that there are therefore likely to be many things about the world that humans are not capable of grasping, just as there are many things about the world that are beyond the comprehension of goats. But if the bat’s consciousness—the what-it-is-like-to-be-a-bat—is not graspable by human concepts, while the bat’s physical makeup is, then it is very difficult to imagine how humans could come to understand the relationship between them. To describe physical matter is to use objective, third-person language, but the experience of the bat is irreducibly subjective. There is a missing conceptual link between the two—what later came to be called an “explanatory gap.” To argue, as some had, that linking consciousness to brain was simply a matter of declaring an identity between them—the mind just is the brain, and that’s all there is to it, the way that water just is H2O—was to miss the point.
Nagel’s was the sort of argument that represented everything Pat couldn’t stand about philosophy. “Various philosophers today think that science is never going to be able to understand consciousness,” she said in her lectures, “and one of their most appealing arguments—I don’t know why it’s appealing, but it seems to be—is ‘I can’t imagine how you could get pain out of meat, I can’t imagine how you could get seeing the color blue out of neurons firing.’ Now, whether you can or can’t imagine certain developments in neuroscience is not an interesting metaphysical fact about the world—it’s a not very interesting psychological fact about you.” But when she mocked her colleagues for examining their intuitions and concepts rather than looking to neuroscience she rarely acknowledged that, for many of them, intuitions and concepts were precisely what the problem of consciousness was about. Those were the data. Most of them were materialists: they were convinced that consciousness somehow is the brain, but they doubted whether humans would ever be able to make sense of that.
Part of the problem was that Pat was by temperament a scientist, and, as the philosopher Daniel Dennett has pointed out, in science a counterintuitive result is prized more than an expected one, whereas in philosophy, if an argument runs counter to intuition, it may be rejected on that ground alone. “Given a knockdown argument for an intuitively unacceptable conclusion, one should assume there is probably something wrong with the argument that one cannot detect,” Nagel wrote in 1979. “To create understanding, philosophy must convince. That means it must produce or destroy belief, rather than merely provide us with a consistent set of things to say. And belief, unlike utterance, should not be under the control of the will, however motivated. It should be involuntary.” The divide between those who, when forced to choose, will trust their instincts and those who will trust an argument that convinces them is at least as deep as the divide between mind-body agnostics and committed physicalists, and lines up roughly the same way.
When Pat first started going around to philosophy conferences and talking about the brain, she felt that everyone was laughing at her. Even thoroughgoing materialists, even scientifically minded ones, simply couldn’t see why a philosopher needed to know about neurons. Part of the problem was that, at the time, during the first thrilling decades of artificial intelligence, it seemed possible that computers would soon be able to do everything that minds could do, using silicon chips instead of brains. So if minds could run on chips as well as on neurons, the reasoning went, why bother about neurons? If the mind was, in effect, software, and if the mind was what you were interested in, then for philosophical purposes surely the brain—the hardware—could be regarded as just plumbing. Nobody thought it was necessary to study circuit boards in order to talk about Microsoft Word. A philosopher of mind ought to concern himself with what the mind did, not how it did it. Moreover, neuroscience was working at the wrong level: tiny neuronal structures were just too distant, conceptually, from the macroscopic components of thought, things like emotions and beliefs.
As far as Pat was concerned, though, to imagine that the stuff of the brain was irrelevant to the study of the mind was no more than a new, more sophisticated form of dualism. Software and hardware, immaterial spirits and pineal glands—it was Descartes all over again, she would fume to Paul when she got home. This was what happened when a bunch of math and logic types started talking about the mind, she thought—they got all caught up in abstractions and forgot that humans were animals. The mind wasn’t some sort of computer program but a biological thing that had been cobbled together, higgledy-piggledy, in the course of a circuitous, wasteful, and particular evolution. Yes, of course neuroscience felt pretty distant from philosophy at this point, but that was only—why couldn’t people see this?—because the discipline was in its infancy. The connections hadn’t been filled in yet. What she objected to was the notion that neuroscience would never be relevant to philosophical concerns. That seemed to her just plain stupid.
1. Defining Marriage
‘Marriage’ can refer to a legal contract and civil status, a religious rite, and a social practice, all of which vary by legal jurisdiction, religious doctrine, and culture. History shows considerable variation in marital practices: polygyny has been widely practiced, some societies have approved of extra-marital sex and, arguably, recognized same-sex marriages, and religious or civil officiation has not always been the norm (Boswell 1994; Mohr 2005, 62; Coontz 2006). More fundamentally, while the contemporary Western ideal of marriage involves a relationship of love, friendship, or companionship, marriage historically functioned primarily as an economic and political unit used to create kinship bonds, control inheritance, and share resources and labor. Indeed, some ancients and medievals discouraged ‘excessive’ love in marriage. The ‘love revolution’ in marriage dates popularly to the 18th century (Coontz 2006, Part 3).
Ethical and political questions regarding marriage are sometimes answered by appeal to the definition of marriage. But the historical and cultural variation in marital practices has prompted some philosophers to argue that marriage is a ‘family resemblance’ concept, with no essential purpose or structure (Wasserstrom 1974). If marriage has no essential features, then one cannot appeal to definition to justify particular legal or moral obligations. For instance, if monogamy is not an essential feature of marriage, then one cannot appeal to the definition of marriage to justify a requirement that legal marriage be monogamous. To a certain extent, the point that actual legal or social definitions cannot settle the question of what features marriage should have is just. First, past applications of a term need not yield necessary and sufficient criteria for applying it: ‘marriage’ (like ‘citizen’) may be extended to new cases without thereby changing its meaning (Mercier 2001). Second, appeal to definition may be uninformative: for example, legal definitions are sometimes circular, defining marriage in terms of spouses and spouses in terms of marriage (Mohr 2005, 57). Third, appeal to an existing definition in the context of debate over what the law of marriage, or its moral obligations, should be risks begging the question: in debate over same-sex marriage, for example, appeal to the current legal definition begs the normative question of what the law should be. However, this point also tells against the argument for the family resemblance view of marriage, as the variation of marital forms in practice does not preclude the existence of a normatively ideal form. Thus, philosophers who defend an essentialist definition of marriage offer normative definitions, which appeal to fundamental ethical or political principles. Defining marriage must depend on, rather than precede, ethical and political inquiry.
2. Understanding Marriage: Historical Orientation
Setting the agenda for contemporary debate, ancient and medieval philosophers raised recurring themes in the philosophy of marriage: the relation between marriage and the state, the role of sex and procreation in marriage, and the gendered nature of spousal roles. Their works reflect evolving, and overlapping, ideas of marriage as an economic or procreative unit, a religious sacrament, a contractual association, and a relationship of mutual support.
In his depiction of the ideal state, Plato (427–347 BCE) described a form of marriage contrasting greatly with actual marriage practices of his time. He argued that, just as male and female watchdogs perform the same duties, men and women should work together, and, among Guardians, ‘wives and children [should be held] in common’ (The Republic, ca. 375–370 BCE, 423e–424a). To orchestrate eugenic breeding, temporary marriages would be made at festivals, where matches, apparently chosen by lot, would be secretly arranged by the Rulers. Resulting offspring would be taken from biological parents and reared anonymously in nurseries. Plato's reason for this radical restructuring of marriage was to extend family sympathies from the nuclear family to the state itself: the abolition of the private family was intended to discourage private interests at odds with the common good and the strength of the state (ibid., 449a-466d; in Plato's Laws, ca. 355–47 BCE, private marriage is retained but still designed for public benefit).
Aristotle (384–322 BCE) sharply criticized this proposal as unworkable. On his view, Plato errs in assuming that the natural love for one's own family can be transferred to all fellow-citizens. The state arises from component parts, beginning with the natural procreative union of male and female. It is thus a state of families rather than a family state, and its dependence on the functioning of individual households makes marriage essential to political theory (Politics, 1264b). The Aristotelian idea that the stability of society depends on the marital family influenced Hegel, Rawls, and Sandel, among others. Aristotle also disagreed with Plato on gender roles in marriage, and these views too would prove influential. Marriage, he argued, is properly structured by gender: the husband, “fitter for command,” rules. The sexes express their excellences differently: “the courage of a man is shown in commanding, of a woman in obeying,” a complementarity which promotes the marital good (Politics, ca. 330 BCE, 1253b, 1259b, 1260a; Nicomachean Ethics, ca. 325 BCE, 1160–62).
In contrast to the ancients, whose philosophical discussion of sex and sexual love was not confined to marriage, Christian philosophers introduced a new focus on marriage as the sole permissible context for sex, marking a shift from viewing marriage as primarily a political and economic unit. St. Augustine (354–430), following St. Paul, condemns sex outside marriage and lust within it. “[A]bstinence from all sexual union is better even than marital intercourse performed for the sake of procreating,” and the unmarried state is best of all (The Excellence of Marriage, ca. 401, §6, 13/15). But marriage is justified by its goods: “children, fidelity [between spouses], and sacrament.” Although procreation is the purpose of marriage, marriage does not morally rehabilitate lust. Instead, the reason for the individual marital sexual act determines its permissibility. Sex for the sake of procreation is not sinful, and sex within marriage solely to satisfy lust is a pardonable (venial) sin. As marital sex is preferable to “fornication” (extra-marital sex), spouses owe the “marriage debt” (sex) to protect against temptation, thereby sustaining mutual fidelity (Marriage and Desire, Book I, ca. 418–19, §7, 8, 17/19, 14/16).
St. Thomas Aquinas (ca. 1225–1274) grounded concurring judgments about sexual morality in natural law, explicating marriage in terms of basic human goods, including procreation and fidelity between spouses (Finnis 1997). Monogamous marriage, as the arrangement fit for the rearing of children, “belong[s] to the natural law.” Monogamous marriage secures paternal guidance, which a child needs; fornication is thus a mortal sin because it “tends to injure the life of the offspring.” (Aquinas rejects polygamy on similar grounds while, like Augustine, arguing that it was once permitted to populate the earth.) Marital sex employs the body for its purpose of preserving the species, and pleasure may be a divinely ordained part of this. Even within marriage, sex is morally troubling because it involves “a loss of reason,” but this is compensated by the goods of marriage (Summa Theologiae, unfinished at Aquinas' death, II-II, 153, 2; 154, 2). Among these goods, Aquinas emphasizes the mutual fidelity of the spouses, including payment of the “marriage debt” and “partnership of a common life”—a step towards ideas of companionate marriage (Summa Theologiae, Supp. 49, 1).
Indeed, we see indications of discontent with the economic model of marriage a century earlier in the letters of Héloïse (ca. 1100–1163) to Abelard (1079–1142). Héloïse attacks marriage, understood as an economic transaction, arguing that a woman marrying for money or position deserves “wages, not gratitude” and would “prostitute herself to a richer man, if she could.” In place of this economic relation she praises love, understood on a Ciceronian model of friendship: the “name of wife may seem more sacred or more binding, but sweeter for me will always be the word friend (amica), or, if you will permit me, that of concubine or whore” (Abelard and Héloïse, Letters, ca. 1133–1138, 51–2). The relation between love and marriage will continue to preoccupy later philosophers. Do marital obligations and economic incentives threaten love, as Héloïse suggested? (Cave 2003, Card 1996) As Søren Kierkegaard (1813–1855) dramatically suggests in The Seducer's Diary, are the obligations of marriage incompatible with romantic and erotic love? Or, instead, does marital commitment uniquely enable spousal love, as Aquinas suggested? (Finnis 1997; cf. Kierkegaard's Judge William's defense of marriage [Either/Or, 1843, vol. 2].)
Questions of the relation between love and marriage emerge from changing understandings of the role of marriage; in the early modern era, further fault lines appear as new understandings of human society conflict with the traditional structure of marriage. For Aristotle, Augustine, and Aquinas, marriage was unproblematically structured by sexual difference, and its distinctive features explained by nature or sacrament. But in the early modern era, as doctrines of equal rights and contract appeared, a new ideal of relationships between adults as free choices between equals appeared. In this light, the unequal and unchosen content of the marriage relationship raised philosophical problems. Thomas Hobbes (1588–1679) acknowledged that his arguments for rough equality among humans apply to women: “whereas some have attributed the dominion [over children] to the man only, as being of the more excellent sex; they misreckon in it. For there is not always that difference of strength, or prudence between the man and the woman, as that the right can be determined without war.” Nonetheless, Hobbes admits that men dominate in marriage, which he explains (inadequately) thus: “for the most part commonwealths have been erected by the fathers, not by the mothers of families” (Leviathan, 1651, Ch. 20; Okin 1979, 198–199, Pateman 1988, 44–50).
Likewise, defending marital hierarchy posed a problem for John Locke (1632–1704). Locke ties his rejection of political patriarchy to a rejection of the patriarchal family, arguing that marriage, like the state, rests on consent, not natural hierarchy; marriage is a “voluntary compact.” But Locke fails to follow this reasoning consistently, for Lockean marriage remains hierarchical: in cases of conflict, “the rule … naturally falls to the man's as the abler and stronger.” Ceding decision-making power to one party on the basis of a presumed natural hierarchy creates an internal tension in Locke's views (The Second Treatise of Government, 1690, §77, 81, 82; Okin 1979, 199–200). This inconsistency prompted Mary Astell's (1666–1731) response: “If all Men are born free, how is it that all women are born slaves? as they must be if the being subjected to the inconstant, uncertain, unknown, arbitrary Will of Men, be the perfect Condition of Slavery?” (“Reflections upon Marriage,” 1700, 18) Similar tensions arise for Jean-Jacques Rousseau (1712–1778), whose treatise on education, Émile, describes the unequal status of Émile's wife, Sophie. Her education, a template for all women's, prepares her only to please and serve her husband and rear children. Mary Wollstonecraft (1759–1798) attacked Rousseau's views on women's nature, education, and marital inequality in A Vindication of the Rights of Woman (see also Okin 1979, Chapter 6).
The contractual understanding of marriage prompts the question as to why marital obligations should be fixed other than by spousal agreement. Immanuel Kant (1724–1804) combined a contractual account of marriage with an Augustinian preoccupation with sexual morality to argue that the distinctive content of the marriage contract was required to make sex permissible. In Kant's view, sex involves morally problematic objectification, or treatment of oneself and other as a mere means. The marriage right, a “right to a person akin to a right to a thing,” gives spouses “lifelong possession of each other's sexual attributes,” a transaction supposed to render sex compatible with respect for humanity: “while one person is acquired by the other as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality.” But while these rights, according to Kant, make sex compatible with justice, married sex is not clearly virtuous unless procreation is a possibility (Metaphysics of Morals, 1797–98, Ak 6:277–79, 6:424–427). Kant's account of sexual objectification has had wide influence—from feminists to new natural lawyers. More surprisingly, given his views on gender inequality and the wrongness of same-sex sexual activity, Kant's account of marriage has been sympathetically reconstructed by feminists and defenders of same-sex marriage drawn by Kant's focus on equality, reciprocity, and the moral rehabilitation of sex within marriage (Herman 1993, Altman 2010, Papadaki 2010). Kant interestingly suggests that morally problematic relationships can be reconstructed through equal juridical rights, but the way in which such reconstruction occurs is puzzling (Herman 1993, Brake 2005).
Characteristically, G. W. F. Hegel's (1770–1831) account of marriage synthesizes the preceding themes. Hegel returns to Aristotle's understanding of (nuclear) marriage as the foundation of a healthy state, while explicating its contribution in terms of spousal love. Hegel criticized Kant's reduction of marriage to contract as “disgraceful” because spouses begin “from the point of view of contract—i.e. that of individual personality as a self-sufficient unit—in order to supersede it.” They “consent to constitute a single person and to give up their natural and individual personalities within this union.” The essence of marriage is ethical love, “the consciousness of this union as a substantial end, and hence in love, trust, and the sharing of the whole of individual existence.” Ethical love is not, like sexual love, contingent: “Marriage should not be disrupted by passion, for the latter is subordinate to it” (Elements of the Philosophy of Right, 1821, §162–63, 163A).
Like his predecessors, Hegel must justify the distinctive features of marriage, and in particular, why, if it is the ethical love relationship which is ethically significant, formal marriage is necessary. Hegel's contemporary Friedrich von Schlegel had argued that love can exist outside marriage—a point which Hegel denounced as the argument of a seducer! For Hegel, ethical love depends on publicly assuming spousal roles which define individuals as members in a larger unit. Such unselfish membership links marriage and the state. Marriage plays an important role in Hegel's system of right, which culminates in ethical life, the customs and institutions of society: family, civil society, and the state. The role of marriage is to prepare men to relate to other citizens as sharers in a common enterprise. In taking family relationships as conditions for good citizenship, Hegel follows Aristotle and influences Rawls and Sandel; it is also notable that he takes marriage as a microcosm of the state.
Kant and Hegel attempted to show that the distinctive features of marriage could be explained and justified by guiding normative principles. In contrast, early feminists argued that marital hierarchy was simply an unjust remnant of a pre-modern era. John Stuart Mill (1806–1873) argued that women's subordination within marriage originated in physical force—an anomalous holdover of the ‘law of the strongest’. Like Wollstonecraft in her 1792 A Vindication of the Rights of Woman, Mill compared marriage and slavery: under coverture wives had no legal rights, little remedy for abuse, and, worse, were required to live in intimacy with their ‘masters’. This example of an inequality based on force had persisted so long, Mill argued, because all men had an interest in retaining it. Mill challenged the contractual view that entry into marriage was fully voluntary for women, pointing out that their options were so limited that marriage was “only Hobson's choice, ‘that or none’” (The Subjection of Women, 1869, 29). He also challenged the view that women's nature justified marital inequality: in light of different socialization of girls and boys, there was no way to tell what woman's nature really was. Like Wollstonecraft, Mill described the ideal marital relationship as one of equal friendship (Abbey and Den Uyl, 2001). Such marriages would be “schools of justice” for children, teaching them to treat others as equals. But marital inequality was a school of injustice, teaching boys unearned privilege and corrupting future citizens. The comparison of marriage with slavery has been taken up by contemporary feminists (Cronan 1973), as has the argument that marital injustice creates unjust citizens (Okin 1994).
Marxists also saw marriage as originating in ancient exercises of force and as continuing to contribute to the exploitation of women. Friedrich Engels (1820–1895) argued that monogamous marriage issued from a “world historical defeat of the female sex” (Engels 1884, 120). Exclusive monogamy “was not in any way the fruit of individual sex love, with which it had nothing whatever to do … [but was based on] economic conditions—on the victory of private property over primitive, natural communal property” (ibid., 128). Monogamy allowed men to control women and reproduction, thereby facilitating the intergenerational transfer of private property by producing undisputed heirs. Karl Marx (1818–83) argued that abolishing the private family would liberate women from male ownership, ending their status “as mere instruments of production” (The Communist Manifesto, Marx 1848, 173). The Marxist linking of patriarchy and capitalism, in particular its understanding of marriage as an ownership relation ideologically underpinning the capitalist order, has been especially influential in feminist thought (Pateman 1988, cf. McMurtry 1972).
3. Marriage and Morals
The idea that marriage has a special moral status and entails fixed moral obligations is widespread—and philosophically controversial. Marriage is a legal contract, although an anomalous one (see 4.1); as the idea of it as a contract has taken hold, questions have arisen as to how far its obligations should be subject to individual choice. The contractual view of marriage implies that spouses can choose marital obligations to suit their interests. However, to some, the value of marriage consists precisely in the limitations it sets on individual choice in the service of a greater good: thus, Hegel commented that arranged marriage is the most ethical form of marriage because it subordinates personal choice to the institution. The institutional view holds that the purpose of the institution defines its obligations, taking precedence over spouses' desires, either, in the two most prominent forms, in the service of a procreative union, or to protect spousal love. These theories have implications for the moral status of extra-marital sex and divorce, as well as the point and purpose of marriage.
3.1 Contractual Views
On the contractual view, the moral terms and obligations of marriage are taken as a set of promises between spouses. Their content is supplied by surrounding social and legal practices, but their promissory nature implies that parties to the promise can negotiate the terms and release each other from marital obligations.
One rationale for treating marital obligations as such promises might be thought to be the voluntaristic account of obligation. On this view, all special obligations (as opposed to general duties) are the result of voluntary undertakings; promises are then the paradigm of special obligations (see entry on Special Obligations). Thus, whatever special obligations spouses have to one another must originate in voluntary agreement, best understood as promise. We will return to this below. A second rationale is the assumption that existing marriage practices are morally arbitrary, in the sense that there is no special moral reason for their structure. Further, there are diverse social understandings of marriage. If the choice between them is morally arbitrary, there is no moral reason for spouses to adopt one specific set of marital obligations; it is left up to spouses to choose their terms. Thus, the contractual account depends upon the assumption that there is no decisive moral reason for a particular marital structure.
On the contractual account, not just any contracts count as marriages. The default content of marital promises is supplied by social and legal practice: sexual exclusivity, staying married, and so on. But it entails that spouses may release one another from these moral obligations. For example, extra-marital sex has often been construed as morally wrong by virtue of promise-breaking: if spouses promise sexual exclusivity, extra-marital sex breaks a promise and is thereby prima facie wrong. However, if marital obligations are simply promises between the spouses, then the parties can release one another, making consensual extra-marital sex permissible (Wasserstrom 1974). Marriage is also sometimes taken to involve a promise to stay married. This seems to make unilateral divorce morally problematic, as promisors cannot release themselves from promissory obligations (Morse 2006). But standard conditions for overriding promissory obligations, such as conflict with more stringent moral duties, inability to perform, or default by the other party to a reciprocal promise would permit at least some unilateral divorces (Houlgate 2005, Chapter 12). Some theorists of marriage have suggested that marital promises are conditional on enduring love or fulfilling sex (Marquis 2005, Moller 2003). But this assumption is at odds with the normal assumption that promissory conditions are to be stated explicitly.
Release from the marriage promise is not the only condition for permissible divorce on the contractual view. Spouses may not be obligated to one another to stay married—but they may have parental duties to do so: if divorce causes avoidable harm to children, it is prima facie wrong (Houlgate 2005, Chapter 12, Russell 1929, Chapter 16). However, in some cases divorce will benefit the child—as when it is the means to escape abuse. A vast empirical literature disputes the likely effects of divorce on children (Galston 1991, 283–288, Young 1995). What is notable here, philosophically, is that this moral reason against divorce is not conceived as a spousal, but a parental, duty.
Marriage is widely taken to have an amatory core, suggesting that a further marital promise is a promise to love, as expressed in wedding vows ‘to love and cherish’. But such alleged promises have met with skepticism. If one cannot control whether one loves, the maxim that ‘ought implies can’ entails that one cannot promise to love. One line of response has been to suggest that marriage involves a promise not to feel but to behave a certain way—to act in ways likely to sustain the relationship. But such reinterpretations of the marital promise face a problem: promises depend on what promisors intend to promise—and presumably most spouses do not intend to promise mere behavior (Martin 1993, Landau 2004, Wilson 1989, Mendus 1984, Brake 2012, Chapter 1; see also Kronqvist 2011). However, developing neuroenhancement technology promises to bring love under control through a “love drug” which would produce bonding hormones such as oxytocin. While the use of neuroenhancement to keep one's vows raises questions of authenticity and the nature of love (as well as concerns regarding its use in abusive relationships), it is difficult to see how such technology morally differs from other love-sustaining devices such as romantic dinners—except that it is more likely to be effective (Savulescu and Sandberg 2008).
One objection to the contractual account is that, without appeal to the purpose of the institution, there is no reason why not just any set of promises count as marriage (Finnis 2008). The objection continues that the contractual account cannot explain the point of marriage. Some marriage contractualists accept this implication. According to the “bachelor's argument,” marriage is irrational: chances of a strongly dis-preferred outcome (a loveless marriage) are too high (Moller 2003). Defenders of the rationality of marriage have replied that marital obligations are rational because they help agents to secure their long-term interests in the face of passing desires (Landau 2004). From the institutional perspective, evaluating the rationality of marriage thus, in terms of fulfilling subjective preferences, clashes with the tradition of viewing it as uniquely enabling certain objective human goods; however, a positive case must be made for the latter view.
Another objection to the contractual view concerns voluntarism. Critics of the voluntarist approach to the family deny that family morality is exhausted by voluntary obligations (Sommers 1989). Voluntarist conceptions of the family conflict with common-sense intuitions that there are unchosen special duties between family members, such as filial duties. However, even if voluntarism is false, this does not suffice to establish special spousal duties. On the other hand, voluntarism alone does not entail the contractual view, for it does not entail that spouses can negotiate the obligations of marriage or that the obligations be subject to release, only that spouses must agree to them. Voluntarism, in other words, need not extend to the choice of marital obligations and hence need not entail the contractual account. The contractual account depends on denying that there is decisive moral reason for marriage to incorporate certain fixed obligations. Let us turn to the case that there is such reason.
3.2 Institutional Views
The main theoretical alternatives to the contractual view hold that marital obligations are defined by the purpose of the institution, and that spouses cannot alter these institutional obligations (much like the professional moral obligations of a doctor; to become a doctor, one must voluntarily accept the role and its obligations, but one cannot negotiate the content of these obligations). The challenge for institutional views is to defend such a view of marriage, explaining why spouses may not jointly agree to alter obligations associated with marriage. Kant confronted this question, arguing that special marital rights were morally necessary for permissible sex. His account of sexual objectification has influenced a prominent contemporary rival to the contractual view—the new natural law view, which takes procreation as essential to marriage. A second widespread approach focuses solely on love as the defining purpose of marriage.
3.2.1 New Natural Law: Marriage as Procreative Union
Like Kant, the new natural law account of marriage focuses on the permissible exercise of sexual attributes; following Aquinas, it emphasizes the goods of marriage, which new natural lawyers, notably John Finnis (cf. George 2000, Grisez 1993, Lee 2008), identify as reproduction and fides—roughly, marital friendship (see entry on The Natural Law Tradition in Ethics). Marriage is here taken to be the institution uniquely apt for conceiving and rearing children by securing the participation of both parents in an ongoing union. The thought is that there is a distinctive marital good related to sexual capacities, consisting in procreation and fides, and realizable only in marriage. Within marriage, sex may be engaged in for the sake of the marital good. Marital sex need not result in conception to be permissible; it is enough that it is open towards procreation and expresses fides. The view does not entail that it is wrong to take pleasure in sex, for this can be part of the marital good.
However, sex outside marriage (as defined here) cannot be orientated toward the marital good. Furthermore, sexual activity not orientated toward this good—including same-sex activity, masturbation, contracepted sex, sex without marital commitment (even within legal marriage)—is valueless; it does not instantiate any basic good. Furthermore, such activity is impermissible because it violates the basic good of marriage. Marital sex is thought to instantiate the good of marriage. By contrast, non-marital sex is thought to treat sexual capacities instrumentally—using them merely for pleasure. (It is here that the account is influenced by Kant.) Non-marital sex violates the good of marriage by treating sexual capacities in a way contrary to that good. Furthermore, for an agent merely to condone non-marital sex damages his or her relation to the marital good, for even a hypothetical willingness to treat sex instrumentally precludes proper marital commitment (Finnis 1997, 120).
As Finnis emphasizes, one feature of the new natural law account of marriage is that the structure of marriage can be fully explained by its purpose. Marriage is between one man and one woman because this is the unit able to procreate without third-party assistance; permanence is required to give children a lifelong family. Finnis charges, as noted above, that accounts which do not ground marriage in this purpose have no theoretical reason to resist the extension of marriage to polygamy, incest, and bestiality (Finnis 1995). As all non-marital sex fails to instantiate basic goods, there is no way morally to distinguish these different relations.
A further point concerns law: to guide citizens' judgments and choices towards the relationship in which they can uniquely achieve the marital good, the state should endorse marriage, as understood on this view, and not recognize same-sex relationships as marriages. However, it might be asked whether this is an effective way to guide choice, and whether state resources might be better spent promoting other basic human goods. Moreover, as the argument equally implies a state interest in discouraging contraception, divorce, and extra-marital sex, the focus on same-sex marriage appears arbitrary (Garrett 2008, Macedo 1995). This objection is a specific instance of a more general objection: this account treats sex and the marital good differently than it does the other basic human goods. Not only is less attention paid to promoting those goods legally (and discouraging behavior contrary to them), but the moral principle forbidding action contrary to basic human goods is not consistently applied elsewhere—for example, to eating unhealthily (Garrett 2008).
A second objection attacks the claim that non-marital sex cannot instantiate any basic human goods. This implausibly consigns all non-marital sex (including all contracepted sex) to the same value as anonymous sex, prostitution, or masturbation (Macedo 1995, 282). Plausibly, non-marital sex can instantiate goods such as “pleasure, communication, emotional growth, personal stability, long-term fulfillment” (Corvino 2005, 512), or other basic human goods identified by the new natural law account, such as knowledge, play, and friendship (Garrett 2008).
A third objection is related. The view seems to involve a double standard in permitting infertile opposite-sex couples to marry (Corvino 2005; Macedo 1995). The new natural lawyers have responded that penile-vaginal sex is reproductive in type, even if not in effect, while same-sex activity can never be reproductive in type (Finnis 1997, cf. George 2000, Lee 2008). Reproductive-type sex can be oriented towards procreation even if not procreative in effect. But it is unclear how individuals who know themselves to be infertile can have sex for the reason of procreation (Macedo 1995, Buccola 2005). Ultimately, to differentiate infertile heterosexual couples from same-sex couples, new natural lawyers invoke complementarity between men and women as partners and parents. Thus, the defense of this account of marriage turns on a controversial view of the nature and importance of sexual difference (Finnis 1997, Lee 2008).
A related, influential argument focuses on the definition of marriage. This argues that marriage is necessarily between one man and one woman because it involves a comprehensive union between spouses, a unity of lives, minds, and bodies. Organic bodily union requires being united for a biological purpose, in a procreative-type act (Girgis, et al., 2010). Like the new natural law arguments, this has raised questions as to why only, and all, different-sex couples, even infertile ones, can partake in procreative-type acts, and why bodily union has special significance (Arroyo forthcoming, Johnson 2013).
While much discussion of new natural law accounts of marriage oscillates between attacking and defending the basis in biological sex difference, some theorists sympathetic to new natural law attempt to avoid the Scylla of rigid biological restrictions and the Charybdis of liberal “plasticity” regarding marriage (Goldstein 2011). Goldstein, for one, offers an account of marriage as a project generated by the basic good of friendship; while this project includes procreation as a core feature, the institution of marriage has, on this account, a compensatory power, meaning that the institution itself can compensate for failures such as inability to procreate. Such an account grounds marriage in the new natural law account of flourishing, but it also allows the extension to same-sex marriage without, according to Goldstein, permitting other forms such as polygamy.
3.2.2 Marriage as Protecting Love
A second widespread (though less unified) institutional approach to marriage appeals to the ideal marital love relationship to define the structure of marriage. This approach, in the work of different philosophers, yields a variety of specific prescriptions, on, for example, whether marital love (or committed romantic love in general) requires sexual difference or sexual exclusivity (Scruton 1986, 305–311, Chapter 11, Halwani 2003, 226–242, Chartier 2016). Some, but not all, proponents explicitly argue that the marital love relationship is an objective good (Scruton 1986, Chapter 11, 356–361, Martin 1993). These views, however, all take the essential feature, and purpose, of marriage to be protecting a sexual love relationship. The thought is that marriage helps to maintain and support a relationship either in itself valuable, or at least valued by the parties to it.
On this approach, the structure of marriage derives from the behavior needed to maintain such a relationship. Thus marriage involves a commitment to act for the relationship as well as to exclude incompatible options—although there is controversy over what specific policies these general commitments entail. To take an uncontroversial example, marriage creates obligations to perform acts which sustain love, such as focusing on the beloved's good qualities (Landau 2004). More controversially, some philosophers argue that sustaining a love relationship requires sexual exclusivity. The thought is that sexual activity generates intimacy and affection, and that objects of affection and intimacy will likely come into competition, threatening the marital relationship. Another version focuses on the emotional harm, and consequent damage to the relationship, caused by sexual jealousy. Thus, due to the psychological conditions required to maintain romantic love, marriage, as a love-protecting institution, generates obligations to sexual exclusivity (Martin 1993, Martin 1994, Scruton 1986, Chapter 11, 356–361, Steinbock 1986). However, philosophers dispute the psychological conditions needed to maintain romantic love. Some argue that casual extra-marital sex need not create competing relationships or trigger jealousy (Halwani 2003, 235; Wasserstrom 1974). Indeed, some have even argued that extra-marital sex, or greater social tolerance thereof, could strengthen otherwise difficult marriages (Russell 1929, Chapter 16), and some polyamorists (those who engage in multiple sex or love relationships) claim that polyamory allows greater honesty and openness than exclusivity (Emens 2004). Other philosophers have treated sexual fidelity as something of a red herring, shifting focus to other qualities of an ideal relationship such as attentiveness, warmth, and honesty, or a commitment to justice in the relationship (Martin 1993, Kleingeld 1998).
Views understanding marriage as protecting love generate diverse conclusions regarding its obligations. But such views share two crucial assumptions: that marriage has a role to play in creating a commitment to a love relationship, and that such commitments may be efficacious in protecting love (Cave 2003, Landau 2004, Martin 1993, Martin 1994, Mendus 1984, Scruton 1986, 356–361). However, both of these assumptions may be questioned. First, even if commitment can protect a love relationship, why must such a commitment be made through a formal marriage? If it is possible to maintain a long-term romantic relationship outside marriage, the question as to the point of marriage re-emerges: do we really need marriage for love? May not the legal and social supports of marriage, indeed, trap individuals in a loveless marriage or themselves corrode love by associating it with obligation? (Card 1996, Cave 2003; see also Gheaus 2016) Second, can commitment, within or without marriage, really protect romantic love? High divorce rates would seem to suggest not. Of course, even if, as discussed in 3.1, agents cannot control whether they love, they can make a commitment to act in ways protective of love (Landau 2004, Mendus 1984). But this returns us the difficulty, suggested by the preceding paragraph, of knowing how to protect love!
Reflecting the difficulty of generating specific rules to protect love, many such views have understood the ethical content of marriage in terms of virtues (Steinbock 1991, Scruton 1986, Chapter 11, 356–361). The virtue approach analyzes marriage in terms of the dispositions it cultivates, an approach which, by its reference to emotional states, promises to explain the relevance of marriage to love. However, such approaches must explain how marriage fosters virtues (Brake 2012). Some virtue accounts cite the effects of its social status: marriage triggers social reactions which secure spousal privacy and ward off the disruptive attention of outsiders (Scruton 1986, 356–361). Its legal obligations, too, can be understood as Ulysses contracts: they protect relationships when spontaneous affection wavers, securing agents' long-term commitments against passing desires. Whether or not such explanations ultimately show that marital status and obligations can play a role in protecting love, the general focus on ideal marital love relationships may be characterized as overly idealistic when contrasted with problems in actual marriages, such as spousal abuse (Card 1996). This last point suggests that moral analysis of marriage cannot be entirely separated from political and social inquiry.
4. The Politics of Marriage
In political philosophy, discussions of marriage law invoke diverse considerations, reflecting the various theoretical orientations of contributors to the debate. The ensuing discussion will set forth the main considerations brought to bear in arguments concerning the legal structure of marriage.
4.1 Marriage and Legal Contract
Marriage is a legal contract, but it has long been recognized to be an anomalous one. Until the 1970s in the U.S., marriage law restricted divorce and defined the terms of marriage on the basis of gender. Marking a shift towards greater alignment of marriage with contractual principles of individualization, marriage law no longer imposes gender-specific obligations, it allows pre-nuptial property agreements, and it permits easier exit through no-fault divorce. But marriage remains (at least in U.S. federal law) an anomalous contract: “there is no written document, each party gives up its right to self-protection, the terms of the contract cannot be re-negotiated, neither party need understand its terms, it must be between two and only two people, and [until 2013] these two people must be one man and one woman” (Kymlicka 1991, 88).
Proponents of the contractualization, or privatization, of marriage have argued that marriage should be brought further into line with the contractual paradigm. A default assumption for some liberals, as for libertarians, is that competent adults should be legally permitted to choose the terms of their interaction. In a society characterized by freedom of contract, restrictions on entry to or exit from marriage, or the content of its legal obligations, appear to be an illiberal anomaly. Full contractualization would imply that there should be no law of marriage at all—marriage officiation would be left to religions or private organizations, with the state enforcing whatever private contracts individuals make and otherwise not interfering (Vanderheiden 1999, Sunstein and Thaler 2008, Chartier 2016; for a critique of contractualization, see Chambers 2016). The many legal implications of marriage for benefit entitlements, inheritance, taxation, and so on, can also be seen as a form of state interference in private choice. By conferring these benefits, as well as merely recognizing marriage as a legal status, the state encourages the relationships thereby formalized (Waldron 1988–89, 1149–1152).
Marriage is the basis for legal discrimination in a number of contexts; such discrimination requires justification, as does the resource allocation involved in providing marital benefits (Cave 2004, Vanderheiden 1999). In the absence of such justification, providing benefits through marriage may treat the unmarried unjustly, as their exclusion from such benefits would then be arbitrary (Card 1996). Thus, there is an onus to provide a rationale justifying such resource allocations and legal discrimination on the basis of marriage, as well as for restricting marriage in ways that other contracts are not restricted.
Before exploring some common rationales, it is worth noting that critics of the social contract model of the state and of freedom of contract have used the example of marriage against contractual principles. First, Marxists have argued that freedom of contract is compatible with exploitation and oppression—and Marxist feminists have taken marriage as a special example, arguing against contractualizing it on these grounds (Pateman 1988, 162–188). Such points, as we will see, suggest the need for rules governing property division on divorce. Second, communitarians have argued that contractual relations are inferior to those characterized by trust and affection—again, using marriage as a special example (Sandel 1982, 31–35, cf. Hegel 1821, §75, §161A). This objection applies not only to contractualizing marriage, but more generally, to treating it as a case for application of principles of justice: the concern is that a rights-based perspective will undermine the morally superior affection between family members, importing considerations of individual desert which alienate family members from their previous unselfish identification with the whole (Sandel 1982, 31–35). However, although marriages are not merely an exchange of rights, spousal rights protect spouses' interests when affection fails; given the existence of abuse and economic inequality within marriage, these rights are especially important for protecting individuals within, and after, marriage (Kleingeld 1998, Shanley 2004, 3–30, Waldron 1988).
4.2 The Rationale of Marriage Law
As noted, a rationale must be given for marriage law which explains the restrictions placed on entry and exit, the allocation of resources to marriage, and legal discrimination on the basis of it. The next section will examine gender restrictions on entry; this section will examine reasons for recognizing marriage in law at all, allocating resources to it, and constraining property division on divorce.
A first reason for recognizing marriage should be set aside. This is that the monogamous heterosexual family unit is a natural, pre-political structure which the state must respect in the form in which it finds it (Morse 2006; cf. new natural lawyers, Girgis et al. 2010). But, whatever the natural reproductive unit may be, marriage law, as legislation, is constrained by principles of justice constraining legislation. Within most contemporary political philosophy, the naturalness of a given practice is irrelevant; indeed, in no area other than the family is it proposed that law should follow nature (with the possible exception of laws regarding suicide). Finally, such objections must answer to feminist concerns that excluding the family unit from principles of justice, allowing natural affection to regulate it, has facilitated inequality and abuse within it (see section 5).
Let us then begin with the question of why marriage should be recognized in law at all. One answer is that legal recognition conveys the state's endorsement, guiding individuals into a valuable form of life (George 2000). A second is that legal recognition is necessary to maintain and protect social support for the institution, a valuable form of life which would otherwise erode (Raz 1986, 162, 392–3; Scruton 1986, 356–361; see discussion in Waldron 1988–89). But this prompts the question as to why this form of life is valuable.
It is sometimes argued that traditions, having stood the test of time, have proved their value. Not only is marriage itself such a tradition, but through its child-rearing role it can pass on other traditions (Sommers 1989, Scruton 1986, 356–361, cf. Devlin 1965, Chapter 4). But many marital traditions—coverture, gender-structured legal duties, marital rape exemptions, inter-racial marriage bans—have been unjust. Tradition provides at best a prima facie reason for legislation which may be overridden by considerations of justice. Further, in a diverse society, there are many competing traditions, amongst which this rationale fails to choose (Garrett 2008).
An account of the value of a particular form of marriage itself (and not just qua tradition) is needed. One thought is that monogamous marriage encourages the sexual self-control needed for health and happiness; another is that it encourages the goods of love and intimacy found in committed relationships. State support for monogamous marriage, by providing incentives to enter marital commitments, thus helps people lead better lives (e.g. Macedo 1995, 286). However, this approach faces objections. First, the explanation in terms of emotional goods underdetermines the institution to be supported: other relationships, such as friendships, embody emotional goods. Second, claims about the value of sexual self-control are controversial; objectors might argue that polygamy, polyamory, or promiscuity are equally good options (see 5.2). There is a further problem with this justification, which speaks to a division within liberal thought. Some liberals embrace neutrality, the view that the state should not base law on controversial judgments about what constitutes valuable living. To such neutral liberals, this class of rationales, which appeal to controversial value judgments about sex and love, must be excluded (Rawls 1997, 779). Some theorists have sought to develop rationales consistent with political liberalism, arguing, for instance, that the intimate dyadic marital relationship protects autonomy (Bennett 2003), or that marriage could be justified by its role in protecting caring relationships (Brake 2012), caregivers and children (Hartley and Watson 2012; see also May 2016, Wedgwood 2016).
It is widely accepted that the state should protect children. If two-parent families benefit children, incentives to marry may be justified as promoting two-parent families and hence children's welfare. One benefit of two-parent families is economic: there is a correlation between single motherhood and poverty. The second benefit is emotional: children appear to benefit from having two parents (Galston 1991, 283–288). (Moreover, some argue that gender complementarity in parenting benefits children; but empirical evidence does not seem to support this [Lee 2008, Nussbaum 1999, 205].) One objection is that marriage is an ineffective child anti-poverty plan. For one thing, this account assumes that incentives to marry will lead a significant number of parents who would not otherwise have married to marry. But marriage and child-rearing have increasingly diverged despite incentives to marry. Second, this approach does not address the many children outside marriages and in poor two-parent families. Child poverty could be addressed more efficiently through direct anti-child-poverty programs rather than the indirect strategy of marriage (Cave 2004; Vanderheiden 1999; Young 1995). Moreover, there is controversy over the psychological effects of single parenthood, particularly over the causality underlying certain correlations: for instance, are children of divorce unhappier due to divorce itself, or to the high-conflict marriage preceding it? (Young 1995) Indeed, some authors have recently argued that children might be better protected by legally separating marriage from parenting: freestanding parenting frameworks would be more durable than marriage (which can end in divorce), would protect children outside of marriages, and would accommodate new family forms such as three-parent families (Brennan and Cameron 2016, Shrage forthcoming; see also Chan and Cutas 2012).
A related, but distinct, line of thought invokes the alleged psychological effects of two-parent families to argue that marriage benefits society by promoting good citizenship and state stability (Galston 1991, 283–288). This depends on the empirical case (as we have seen, a contested one) that children of single parents face psychological and economic hurdles which threaten their capacity to acquire the virtues of citizenship. Moreover, if economic dependence produces power inequality within marriage, then Mill's ‘school of injustice’ objection applies—an institution teaching injustice is likely to undermine the virtues of citizenship (Okin 1994, Young 1995).
Finally, a rationale for restricting the terms of exit from marriage (but not for supporting it as a form of life) is the protection of women and children following divorce. Women in gender-structured marriages, particularly if they have children, tend to become economically vulnerable. Statistically, married women are more likely than their husbands to work in less well-paid part-time work, or to give up paid work entirely, especially to meet the demands of child-rearing. Thus, following divorce, women are likely to have a reduced standard of living, even to enter poverty. Because these patterns of choice within marriages lead to inequalities between men and women, property division on divorce is a matter of equality or equal opportunity, and so a just law of divorce is essential to gender justice (Okin 1989, Chapters 7 and 8; Rawls 1997, 787–794; Shanley 2004, 3–30; Waldron 1988, and see 5.1). However, it can still be asked why a law recognizing marriage as such should be necessary, as opposed to default rules governing property distribution when such gender-structured relationships end (Sunstein and Thaler 2008). Indeed, placing these restrictions only on marriage, as opposed to enacting general default rules, may make marriage less attractive, especially to men, and hence be counter-productive, leaving women more vulnerable.
The preceding two rationales are both weakened by the diminished social role of marriage; changing legal and social norms undermine its effectiveness as a policy tool. In the 20th century, marriage was beset by a “perfect storm”: the expectation that it should be emotionally fulfilling, women's liberation, and effective contraception (Coontz 2006, Chapter 16). Legally, exit from marriage has become relatively easy since the ‘no-fault divorce revolution’ of the 1970's. Moreover, cohabitation and child-rearing increasingly take place outside marriage. This reflects the end of laws against unmarried cohabitation and legal discrimination against children on grounds of ‘illegitimacy’, as well as diminishing social stigmas against such behavior. Given such significant changes, marriage is at best an indirect strategy for achieving goals such as protecting women or children (Cave 2004, Sunstein and Thaler 2008, Vanderheiden 1999).
Some theorists have argued, in the absence of a compelling rationale for marriage law, for abolishing marriage altogether, replacing it with civil unions or domestic partnerships. This line of thought will be taken up in 4.4, after an examination of the debate over same-sex marriage.
4.3 Same-Sex Marriage
The proposal to replace marriage entirely with civil unions or domestic partnerships differs from the ‘compromise’ proposal of a two-tier marriage law: marriage for opposite-sex couples only, and civil unions or domestic partnerships for same-sex and, if they choose, opposite-sex couples. The compromise proposal grants some of the benefits of marriage without ceding the title (or indeed, as usually proposed, all the benefits) of marriage to same-sex couples. This position does not fully answer arguments for same-sex marriage.
Many arguments for same-sex marriage invoke liberal principles of justice such as equal treatment, equal opportunity, and neutrality. Marriage provides benefits which are denied to same-sex couples on the basis of their orientation; if the function of marriage is the legal recognition of loving, or “voluntary intimate,” relationships, the exclusion of same-sex relationships appears arbitrary and unjustly discriminatory (Wellington 1995, 13). Same-sex relationships are relevantly similar to heterosexual relationships recognized as marriages, yet the state denies gays and lesbians access to the benefits of marriage, hence treating them unequally (Mohr 2005, Rajczi 2008, Williams 2011). Further, arguments in support of such discrimination seem to depend on controversial moral claims regarding homosexuality of the sort excluded by neutrality (Wellington 1995, Schaff 2004, Wedgwood 1999).
To see why a two-tier solution fails to address these arguments, we must consider what benefits marriage provides. There are tangible benefits such as eligibility for health insurance and pensions, privacy rights, immigration eligibility, and hospital visiting rights (see Mohr 2005, Chapter 3). Crucially, however, there is also an important benefit of legal, and indirectly social, recognition of a relationship as marriage. The status of marriage itself confers legitimacy and invokes social support. The two-tier system does not provide equal treatment because it does not confer on same-sex relationships the status associated with marriage.
In addition, some philosophers have argued that excluding gays and lesbians from marriage is central to gay and lesbian oppression, making them ‘second-class citizens’ and underlying social discrimination against them. Marriage is central to concepts of good citizenship, and so exclusion from it displaces gays and lesbians from full and equal citizenship: “being fit for marriage is intimately bound up with our cultural conception of what it means to be a citizen … because marriage is culturally conceived as playing a uniquely foundational role in sustaining civil society” (Calhoun 2000, 108). From this perspective, the ‘separate-but-equal’ category of civil unions retains the harmful legal symbol of inferiority (Card 2007, Mohr 2005, 89, Calhoun 2000, Chapter 5; cf. Stivers and Valls 2007; for a comprehensive survey of these issues, see Macedo 2015).
However, if marriage is essentially heterosexual, excluding same-sex couples is not unequal treatment; same-sex relationships simply do not qualify as marriages. One case for the essential heterosexuality of marriage invokes linguistic definition: marriage is by definition heterosexual, just as a bachelor is by definition an unmarried man (Stainton, cited in Mercier 2001). But this confuses meaning and reference. Past applications of a term need not yield necessary and sufficient criteria for applying it: ‘marriage’, like ‘citizen’, may be extended to new cases without thereby changing its meaning (Mercier 2001). As noted above, appeal to past definition begs the question of what the legal definition should be (Stivers and Valls 2007).
A normative argument for the essential heterosexuality of marriage appeals to its purpose: reproduction in a naturally procreative unit (see 3.2.a). But marriage does not require that spouses be able to procreate naturally, or that they intend to do so at all. Further, married couples adopt and reproduce using donated gametes, rather than procreating ‘naturally’. Nor do proponents of this objection to same-sex marriage generally suggest that entry to marriage should be restricted by excluding those unable to procreate without third-party assistance, or not intending to do so.
Indeed, as the existence of intentionally childless married couples suggests, marriage has purposes other than child-rearing—notably, fostering a committed relationship (Mohr 2005, Wellington 1995, Wedgwood 1999). This point suggests a second defense of same-sex marriage: exclusive marital commitments are goods which the state should promote amongst same-sex as well as opposite-sex couples (Macedo 1995). As noted above, such rationales come into tension with liberal neutrality; further controversy regarding them will be discussed below (5.2).
Some arguments against same-sex marriage invoke a precautionary principle urging that changes which might affect child welfare be made with extreme caution. But in light of the data available, Murphy argues that the precautionary principle has been met with regard to harm to children. On his view, parenting is a basic civil right, the restriction of which requires the threat of a certain amount of harm. But social science literature shows that children are neither typically nor catastrophically harmed by same-sex parenting. Even if two biological parents statistically provide the optimal parenting situation, optimality is too high a standard for permitting parenting. This can be seen if an optimality condition is imagined for other factors, such as education or wealth (Murphy 2011).
A third objection made to same-sex marriage is that its proponents have no principled reason to oppose legally recognizing polygamy (e.g. Finnis 1997; see Corvino 2005). One response differentiates the two by citing harmful effects and unequal status for women found in male-headed polygyny, but not in same-sex marriage (e.g. Wedgwood 1999, Crookston 2014, de Marneffe 2016, Macedo 2015). Another response is to bite the bullet: a liberal state should not choose amongst the various ways (compatible with justice) individuals wish to organize sex and intimacy. Thus, the state should recognize a diversity of marital relationships—including polygamy (Calhoun 2005, Mahoney 2008) or else privatize marriage, relegating it to private contract without special legal recognition or definition (Baltzly 2012).
Finally, some arguments against same-sex marriage rely on judgments that same-sex sexual activity is impermissible. As noted above, the soundness of these arguments aside, neutrality and political liberalism exclude appeal to such contested moral views in justifying law in important matters (Rawls 1997, 779, Schaff 2004, Wedgwood 1999). However, some arguments against same-sex marriage have invoked neutrality, on the grounds that legalizing same-sex marriage would force some citizens to tolerate what they find morally abhorrent (Jordan 1995, and see Beckwith 2013). But this reasoning seems to imply, absurdly, that mixed-race marriage, where that is the subject of controversy, should not be legalized. A rights claim to equal treatment (if such a claim can support same-sex marriage) trumps offense caused to those who disagree; the state is not required to be neutral in matters of justice (Beyer 2002; Boonin 1999; Schaff 2004; see also Barry 2011, Walker 2015).
4.4 Arguments for Marriage Reform
A number of theorists have argued for the abolition or restructuring of marriage. While same-sex marriage became legally recognized throughout the United States following the Supreme Court decision in Obergefell v Hodges 576 U.S. _ (2015), some philosophers contend that justice requires further reform. Some have proposed that temporary marriage contracts be made available (Nolan 2016, Shrage 2013) and that legal frameworks for marriage and parenting be separated (Brennan and Cameron 2016, Shrage forthcoming). A more sweeping view, to be discussed in Section 5, is that marriage is in itself oppressive and unjust, and hence ought to be abolished (Card 1996, Fineman 2004, Chambers 2013). A second argument for disestablishing or privatizing legal marriage holds that, in the absence of a pressing rationale for marriage law (as discussed in 4.2), the religious or ethical associations of marriage law give reason for abolishing marriage as a legal category. Marriage has religious associations in part responsible for public controversy over same-sex marriage. If marriage is essentially defined by a religious or ethical view of the good, then legal recognition of it arguably violates state neutrality or even religious freedom (Metz 2010, but see Macedo 2015, May 2016, Wedgwood 2016).
There are several reform proposals compatible with the ‘disestablishment’ of marriage. One proposal is full contractualization or privatization, leaving marriage to churches and private organizations. “Marital contractualism” (MC) would relegate spousal agreements to existing contract law, eradicating any special legal marital status or rights. Garrett has defended MC as the default position, arguing that state regulation of contracts between spouses and state expenditures on marriage administration and promotion need justification. On his view, efficiency, equality, diversity, and informed consent favor MC; there is no adequate justification for the costly redistribution of taxpayer funds to the married, or for sustaining social stigma against the unmarried through legal marriage (Garrett 2009, see also Chartier 2016).
But marriage confers rights not available through private contract and which arguably should not be eliminated—such as evidentiary privilege or special eligibility for immigration. A second proposal would retain such rights while abolishing marriage; on this proposal, the state ought to replace civil marriage entirely with a secular status such as civil union or domestic partnership, which could serve the purpose of identifying significant others for benefit entitlements, visiting rights, and so on (March 2010, 2011). This would allow equal treatment of same-sex relationships while reducing controversy, avoiding non-neutrality, and respecting the autonomy of religious organizations by not compelling them to recognize same-sex marriage (Sunstein and Thaler 2008). However, neither solution resolves the conflict between religious autonomy and equality for same-sex relationships. Privatization does not solve this conflict so long as religious organizations are involved in civil society—for example, as employers or benefit providers. The question is whether religious autonomy would allow them, in such roles, to exclude same-sex civil unions from benefits. Such exclusion could be defended as a matter of religious autonomy; but it could also be objected to as unjust discrimination—as it would be if, for example, equal treatment were denied to inter-racial marriages.
Another issue raised by such a reform proposal is how to delimit the relationships entitled to such recognition. Recall the new natural law charge that liberalism entails an objectionable “plasticicty” regarding marriage (3.2.1). One question is whether recognition should be extended to polygamous or polyamorous relationships. Some defenders of same-sex marriage hold that their arguments do not entail recognizing polygamy, due to its oppressive effects on women (Wedgwood 1999). However, some monogamous marriages are also oppressive (March 2011), and egalitarian polygamous or polyamorous relationships, such as a group of three women or three men, exist (Emens, 2004). Thus, oppressiveness does not cleanly distinguish monogamous from polygamous relationships. Brooks has sought to show that polygamy is distinctively structurally inegalitarian as one party (usually the husband) can determine who will join the marriage, whereas wives cannot (Brooks 2009). However, this overlooks various possible configurations—if a polygamous “sister wife,” for instance, has the legal right to marry outside the existing marriage, there is no structural inequality (Strauss 2012). Most fundamentally, some authors have urged that a politically liberal state should not prescribe the arrangements in which its competent adult members seek love, sex, and intimacy, so long as they are compatible with justice (Calhoun 2005, March 2011). Some philosophers have argued that polygamists and polyamorous people are unjustly excluded from the benefits of marriage, and that legal recognition of plural marriage - or small groups of friends – can preserve equality (Brake 2014, Den Otter 2015, Shrage 2016). Finally, the history of racialized stigmatization of polygamy gives reason to consider whether anti-polygamous intuitions rest on just foundations (Denike 2010).
Conservatives also charge that the liberal approach cannot rule out incestuous marriage. While this topic has sparked less debate than polygamy, one defender of the civil-unions-for-all proposal has pointed out that civil union status, as justified on politically liberal grounds, would not connote sexual or romantic involvement. Thus, eligibility of adult family members for this status would not convey state endorsement of incest; whether the state should prohibit or discourage this is an independent question (March 2010).
A further problem arises with the proposal to replace marriage with civil unions on neutrality grounds. Civil unions, if they carry legal benefits similar to marriage, would still involve legal discrimination (between members of civil unions and those who were not members) requiring justification (for a specific example of this problem in the area of immigration law, see Ferracioli 2016). Depending on how restrictive the entry criteria for civil unions were (for example, whether more than two parties, blood relations, and those not romantically involved could enter) and how extensive the entitlements conferred by such unions were, the state would need to provide reason for this discrimination. In the absence of compelling neutral reasons for such differential treatment, liberty considerations suggest the state should cease providing any special benefits to members of civil unions (or intimate relationships) (Vanderheiden 1999, cf. Sunstein and Thaler 2008). As noted in 4.2, some political liberals have sought to provide rationales showing why a liberal state should support certain relationships; these rationales generate corresponding reform proposals. One approach focuses on protecting economically dependent caregivers; Metz proposes replacing civil marriage with “intimate care-giving unions” which would protect the rights of dependent caregivers (Metz 2010; cf. Hartley and Watson 2012). Another approach holds that caring relationships themselves - whether friendships or romantic relationships - should be recognized as valuable by the politically liberal state, and it should, accordingly, distribute rights supporting them equally; the corresponding reform proposal, “minimal marriage,” would provide rights directly supporting relationships, but not economic benefits, without restriction as to sex or number of parties (Brake 2012).
Many of the views discussed to this point imply that current marriage law is unjust due to arbitrarily excluding some groups from benefits; it follows, on such views, that marrying is to avail oneself of privileges unjustly extended. This seems to give reason for boycotting the institution, so long as some class of persons are unjustly excluded (Parsons 2008).
Finally, reform to accommodate marriages involving at least one transsexual person (“trans-marriages”) poses conceptual questions regarding law and gender. Currently, U.S. law is in patchwork concerning such marriages; as a transsexual person travels from state to state, both her legal sex and her marital status may change (Cannon 2009, 85). While there are reasons of efficiency and justice to recognize trans-marriages (such as ensuring inheritance rights), Robson suggests that the underlying rationale of such legislation will be problematic from a feminist standpoint critical of the gender/sex system. For instance, legislation affirming such marriages has done so due to the possibility of penile-vaginal intercourse, reaffirming heterosexual norms (Robson 2007). But to other theorists, the possibility of trans-marriage itself suggests the instability or incoherence of legal gender categories and gendered restrictions on marriage (Cannon 2009, Almeida 2012).
5. Marriage and Oppression
Marriage historically played a central role in women's oppression, meaning economic and political disempowerment and limitation of opportunities. Until the late 19th century, the doctrine of coverture (in English and U.S. law) suspended a wife's legal personality on marriage, ‘covering’ it with that of her husband, removing her rights to own property, make a will, earn her own money, make contracts, or leave her husband, and giving her little recourse against physical abuse. Well into the 20th century, legislatures continued to impose gendered legal roles within marriage (known as ‘head and master laws’), to exempt rape within marriage from criminal prosecution, and to allow—or impose—professional bars on married women (Coontz 2006, 238; Cronan 1973; Kleingeld 1998). John Stuart Mill compared wives' condition under coverture to slavery (see section 1); while the late 20th century U.S. saw gender-neutrality in legal marital responsibilities and an end to the marital rape exemption, criticisms of marriage as oppressive persist. Contemporary feminist attention to marriage is focused on spousal abuse—indeed, some U.S. states still exempt spouses from sexual battery charges (Posner and Silbaugh 1996)—, the gendered division of labor in marriage, and the effects of marriage on women's economic opportunities and power.
While Mill and Engels saw the establishment of monogamous marriage as an ancient defeat of the female sex, Aquinas, Kant, and many others have seen monogamy as a victory for women, securing for them faithful partners, protection, and material support. So Kant writes that “skepticism on this topic [marriage] is bound to have bad consequences for the whole feminine sex, because this sex would be degraded to a mere means for satisfying the desire of the other sex, which, however, can easily result in boredom and unfaithfulness.—Woman becomes free by marriage; man loses his freedom by it” (Kant 1798, 210–211, ). However, as a historical thesis about the origin of marriage, the idea that monogamy provided women with needed material support has been debunked. In early hunting-gathering societies, female foraging likely provided more than male hunting, child-care was arranged communally, and, rather than a single male providing for his female partner, survival required a much larger group (Coontz 2006, 37–38). As a thesis about the protection of women by their male partners, the incidence of rape and violence by male partners themselves must be taken into account (e.g., in the contemporary U.S. context, Tjaden and Thoennes 2000). And as a thesis about sex difference, evolutionary ‘just-so’ stories purporting to show that women are naturally more monogamous have been challenged by feminist philosophers of biology (Tuana 2004).
Marriage law has also been a tool of racial oppression. The majority of American states at one time prohibited inter-racial marriage; the Supreme Court struck down such laws in 1967 (Wallenstein 2002, 253–254). Anti-miscegenation law did not prevent actual miscegenation, but it excluded women of color and their children from the benefits of marriage. It was also a potent symbol of alleged racial difference. Furthermore, African-American marriage patterns were shaped by slavery. Enslaved persons could not legally marry, and slave couples and their children were frequently separated (Cott 2000). Contemporary philosophers of race argue that marriage is still implicated in systemic racism (Collins 1998). For example, historical conditions have led to practices of shared child-rearing in African-American communities. Some theories of marriage imply that such child-rearing practices are inferior to the marital family. Theorists of racial oppression argue that such practices should be recognized as a valuable alternative, and, moreover, that law which excludes such practices from benefits accorded to marriage may be racially unjust (Vanderheiden 1999; cf. Collins 1998, Card 1996).
Recent work has also highlighted the contemporary marriage gap in the U.S.: wealthier people are more likely to marry (McClain 2013). This suggests a different kind of link between marriage and oppression: one effect of socioeconomic inequality may be to deprive the worse-off of access to marriage (perhaps because poverty impedes the formation of stable relationships), and the further legal benefits marriage can bring. There is arguably a tension, among egalitarian approaches, between criticizing marriage as inherently oppressive and criticizing barriers to accessing it (Chambers 2013).
5.1 Feminist Approaches
A major theme in feminist political philosophy has been the exclusion of the marital family from justice. Political philosophy has tended to relegate the inner workings of the family to natural hierarchy or affection (Okin 1979, 1989). Historically, this meant that the private sphere of marriage, to which women were confined, was also the zone of state non-interference, so that what happened to women there was not subject to norms of justice. Gradually, law and political philosophy have come to recognize that equal rights and liberties should be upheld within the private sphere as without, but many political philosophers still resist applying principles of justice directly within the private sphere. However, feminists argue that today gender-structured marriage contributes to, or is even the mainstay of, women's economic inequality and disempowerment, and that justice must therefore regulate its terms—even, perhaps, to the point of interfering with voluntary marital relations.
As noted above, one persistent rationale for excluding the family from norms of justice is that its natural relations of affection and trust are superior to merely just relations and likely to be threatened by construing the family in terms of justice (Hegel 1821, §75, §161A; Sandel 1982, 31–35). But abuse within marriage and inequality on dissolution are significant problems, the gravity of which should, according to critics, outweigh these finer virtues; rights within marriage protect spouses when affection fails (Waldron 1988). Moreover, it is not clear that affection and justice must conflict; a commitment to treating one's spouse justly could be part of marital love (Kleingeld 1998). Finally, marriage is part of the basic structure of society, and thus, at least within Rawlsian liberalism, is subject to principles of justice. This does not determine, however, how principles of justice should constrain marriage; the default liberal presumption is that marriage, as a voluntary association, should be ordered as spouses choose—so long as these choices do not lead to injustice (Rawls 1997, 792). We will return to this below.
Marriage is a focus of feminist concern due to its effects on women's life chances. Continuing disadvantage accruing to women in marriage has been widely documented, and in some feminist analyses, undergirds gender inequality (rival accounts place greater emphasis on sexual objectification or workplace discrimination). Wives, even those who work full-time outside the home, perform more housework than husbands—this ‘second shift’ affecting their workplace competitiveness. The social assignment of primary responsibility for childcare to women, combined with the difficulty of combining childcare with paid work, also undermine the workplace competitiveness of women with children (Maushart 2001, Okin 1989, Chapter 7). The gendered division of labor and the fact that ‘women's work’ is less well-paid than men's together make it more likely that married women, rather than their husbands, will downgrade their careers, choose part-time work, or stay home to facilitate child-rearing or when the spouses' careers conflict. These choices make women “vulnerable by marriage”: economic dependence, and dependence on marriage for benefits such as health insurance, fosters power inequality and makes exit difficult, in turn facilitating abuse (Okin 1989, Chapter 7, Card 1996, Brake 2016, Ferguson 2016).
As discussed in 4.2, rationales of equality or equal opportunity are given for addressing economic inequalities arising within marriage through divorce law (Okin 1989, Chapters 7 and 8; Shanley 2004, 3–30, Rawls 1997, 787–794). However, divorce law does not address non-economic sources of power imbalances (such as gender role socialization) within on-going marriages, nor does it address the systemic way in which such inequalities arise. Equal opportunity seems to require changing social norms related to marriage in ways which divorce law does not. First, the gendered division of labor within ongoing marriages is costly for women (Kleingeld 1998, Maushart 2001). Second, power imbalances within marriage limit girls' expectations and teach children to accept gendered inequality (Okin 1989, Chapter 7, Okin 1994). Third, anticipation of marriage affects women's investment in their earning ability before marriage (Okin 1989, Chapter 7). (But for an argument that some hierarchy and inequality in marriage is just, see Landau 2012.)
Such social norms could be addressed through education or through media campaigns promoting the equitable division of housework. Legal measures such as requiring all marital income to be held equally could encourage power equality within marriage (Okin 1989, Chapter 8). However, state interference in on-going marriages arguably conflicts with spouses' liberties (Rawls 1997, 787–794). This seems to raise a theoretical problem for liberal feminism. Recent liberal feminist approaches to marriage focus on how a just law of marriage can protect women's interests, as well as how background measures such as education can address social gender inequality (Brake 2012, Chapter 7; Hartley and Watson 2012).
While many feminists have focused on the reform of marriage, others have argued for its abolition (Chambers 2013). It is sometimes claimed that marriage is inherently structured, socially, by sexist norms, precluding the possibility of true feminist reform. On such views, abolishing marriage is necessary to reshape social expectations and change patterns of choice accompanying it. For example, legal marriage may encourage women's economic dependence by enabling and providing incentives for it. Thus, the legal structure of marriage, in combination with social norms, is taken to encourage choices which disempower women relative to men. Moreover, legal recognition of marriage itself endorses an ideal of a central, exclusive love relationship which, on the views of some feminists, encourages women to make disadvantageous choices by inculcating an exaggerated valuation of such relationships—at the expense of women's other aspirations. Thus, in The Second Sex, feminist philosopher Simone de Beauvoir (1908–86) identified the expectations surrounding marriage as one of the primary means by which women are socialized into a femininity which, in her view, was limiting: marriage “is the destiny traditionally offered to women by society” (de Beauvoir 1949 , 425), leading women to focus on their attractiveness as mates—and not on study, career, or other ambitions. For this reason, some feminists have rejected ideals of romantic, exclusive love relationships, arguing that women should choose non-monogamy or lesbian separatism (Firestone 1970). The idea that marriage is essentially tied to such an ideal of romantic love will require further examination in the next section.
5.2 The Queer Critique
Just as some feminists argue that marriage is inherently sexist, so some philosophers of gay, lesbian, bisexual, and transgender oppression argue that it is essentially heterosexist. (Some of these philosophers refer to themselves as queer theorists in an effort to help reclaim the word “queer” from its earlier, pejorative usage.) Queer theorists have sought to demonstrate that a wide range of social institutions display heteronormativity, that is, the assumption of heterosexuality and of the gender difference that defines it, as a norm. Because queer theorists resist the normativity of gender as well as of heterosexuality, there is an overlap between their critiques of marriage and those of some feminists, especially lesbian feminists. For these critics of heteronormativity, same-sex marriage is undesirable because it would assimilate same-sex relationships to an essentially heterosexual marital ideal: “Queer theorists worry that pursuing marriage rights is assimilationist, because it rests on the view that it would be better for gay and lesbian relationships to be as much like traditional heterosexual intimate relationships as possible” (Calhoun 2000, 113). On this view, extending marriage to same-sex marriage will undermine, rather than achieve, gay and lesbian liberation.
Recall that some arguments for same-sex marriage claim that central, exclusive relationships are valuable, and that same-sex marriage would benefit gays and lesbians by encouraging them to enter such relationships (e.g. Macedo 2005; see 3.3). But critics of heteronormativity, drawing on gay and lesbian experience, have argued that the central, exclusive relationship ideal is a heterosexual paradigm. Such critics note that gays and lesbians often choose relationships which are less possessive and more flexible than monogamous marriage. Instead of recognizing the diverse relationships found in the gay and lesbian community, same-sex marriage would assimilate lesbian and gay relationships into the heterosexual model. While some advocates of same-sex marriage argue that marital status would confer legitimacy on same-sex relationships, these critics argue that the state should not confer legitimacy (and hence, implicitly, illegitimacy) on consensual adult relationships, any more than it should so discriminate between children born in or out of wedlock. Such conferrals of legitimacy are thought to discourage diversity. Moreover, same-sex marriage would expose gays and lesbians to the disadvantages, even evils, of marriage: economic incentives to stay in loveless marriages and reduced exit options which facilitate abuse and violence (Card 1996, 2007, Ettelbrick 1989).
Other philosophers of gay and lesbian oppression have responded in defense of same-sex marriage that it not only serves gay liberation, it is essential to it. Excluding gays and lesbians from marriage marks them as inferior, and so same-sex marriage would decrease stigmas against homosexuality. Further, the costs of same-sex marriage must be weighed with benefits such as healthcare, custody and inheritance rights, and tax and immigration status (Calhoun 2000, Chapter 5, Ferguson 2007, Mayo and Gunderson 2000). Finally, in response to worries about gay and lesbian assimilation, defenders of same-sex marriage have argued that marriage can incorporate diversity, rather than suppressing it. Marriage need not entail monogamy; indeed, it is argued that same-sex marriage could perform the liberatory function of teaching heterosexuals that neither gender roles nor monogamy are essential to love and marriage (Mohr 2005, 69–9, cf. Halwani 2003, Chapter 3).
The feminist and queer critiques of marriage as essentially sexist, or essentially heterosexist, face the same objection as do other claims about the essence of marriage. Just because marriage has in the past possessed certain features does not entail that they are inherent to it. Thus, rather than reproducing sexist and heterosexist patterns, same-sex marriage could serve women's and gay liberation by transforming marriage, even, perhaps, opening the door to recognition of a still wider variety of family forms (Ferguson 2007, Mayo and Gunderson 2000, Calhoun 2005).
- Abbey, Ruth, and Den Uyl, Douglas, 2001, “The Chief Inducement? The Idea of Marriage As Friendship,” Journal of Applied Philosophy, 18(1): 37–52.
- Almeida, Luís Duarte d', forthcoming 2012, “Legal Sex,” Oxford Studies in Philosophy of Law (Volume 2), Oxford: Oxford University Press.
- Altman, Matthew C., 2010, “Kant on Sex and Marriage: The Implications for the Same-Sex Marriage Debate,” Kant-Studien, 101(3): 309–330.
- Arneson, Richard, 2005, “The Meaning of Marriage: State Efforts to Facilitate Friendship, Love, and Childrearing,” San Diego Law Review, 42: 979–1001.
- Arroyo, Christopher, forthcoming, “Is the Same-sex Marriage Debate Really Just about Marriage?,” Journal of Applied Philosophy, online December 2015, doi:10.1111/japp.12161
- Baltzly, Vaughn Bryan, 2012, “Same-Sex Marriage, Polygamy, and Disestablishment,” Social Theory and Practice, 38(2): 333–362.
- Barry, Peter Brian, 2011, “Same-Sex Marriage and the Charge of Illiberality,” Social Theory and Practice, 37(2): 333–357.
- Beckwith, Francis J., 2013, “Justificatory Liberalism and Same-Sex Marriage,” Ratio Juris, 26(4): 487–509.
- Bennett, Christopher, 2003, “Liberalism, Autonomy, and Conjugal Love,” Res Publica, 9: 285–301.
- Beyer, Jason A., 2002, “Public Dilemmas and Gay Marriage: Contra Jordan,” Journal of Social Philosophy, 33(1): 9–16.
- Boonin, David, 1999, “Same-Sex Marriage and the Argument from Public Disagreement,” Journal of Social Philosophy, 30(2): 251–259.
- Boswell, John, 1994, The Marriage of Likeness: Same-Sex Unions in Pre-Modern Europe, London: HarperCollins.
- Brake, Elizabeth, 2005, “Justice and Virtue in Kant's Account of Marriage,” Kantian Review, 9: 58–94.
- –––, 2012, Minimizing Marriage: Marriage, Morality, and the Law, New York: Oxford University Press.
- –––, 2014, “Recognizing Care: The Case for Friendship and Polyamory,” Syracuse Law and Civic Engagement Journal, 1, [available online].
- –––, 2016, “Equality and Non-Hierarchy in Marriage: What Do Feminists Really Want?,” in After Marriage: Rethinking Marital Relationships, E. Brake (ed.), New York: Oxford University Press, pp. 100–124.
- Brennan, Samantha, and Bill Cameron, 2016, “Is Marriage Bad for Children? Rethinking the Connection between Having Children, Romantic Love, and Marriage,” in After Marriage: Rethinking Marital Relationships, E. Brake (ed.), New York: Oxford University Press, pp. 84–99.
- Brooks, Thom, 2009, “The Problem with Polygamy,” Philosophical Topics, 37(2): 109–22.
- Buccola, Nicholas, 2005, “Finding Room for Same-Sex Marriage: Toward a More Inclusive Understanding of a Cultural Institution,” Journal of Social Philosophy, 36(3): 331–343.
- Calhoun, Cheshire, 2000, Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement, Oxford: Oxford University Press.
- –––, 2005, “Who's Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy,” San Diego Law Review, 42: 1023–1042.
- Cannon, Loren, 2009, “Trans-Marriage and the Unacceptability of Same-Sex Marriage Restrictions,” Social Philosophy Today, 25: 75–89.
- Card, Claudia, 1996, “Against Marriage and Motherhood,” Hypatia, 11(3): 1–23.
- Card, Claudia, 2007, “Gay Divorce: Thoughts on the Legal Regulation of Marriage,” Hypatia, 22(1): 24–38.
- Cave, Eric M., 2003, “Marital Pluralism: Making Marriage Safer for Love,” Journal of Social Philosophy, 34(3): 331–347.
- –––, 2004, “Harm Prevention and the Benefits of Marriage,” Journal of Social Philosophy, 35(2): 233–243.
- Chambers, Clare, 2013, “The Marriage-Free State,” Proceedings of the Aristotelian Society, 113 (2): 123–143.
- –––, 2016, “The Limitations of Contract: Regulating Personal Relationships in a Marriage-Free State,” in After Marriage: Rethinking Marital Relationships