Symposium Introduction

Stephen Macedo’s book Just Married: Same-Sex Couples, Monogamy, and the Future of Marriage (Princeton University Press) came out in 2015, just prior to the US Supreme Court’s decision in Obergefell v. Hodges recognizing that same-sex couples have a constitutional right to marry. The first part of the book in effect provides a philosophical justification for the court’s decision. Macedo considers and responds to a number of conservative arguments against same-sex marriage, including New Natural Law arguments that same-sex marriage is a conceptual impossibility and consequentialist arguments that recognizing same-sex marriage will harm heterosexual married couples, the institution of marriage, and children. Macedo treats these conservative arguments with respect, but he ultimately concludes that none of them provide adequate public reasons to deny civil marriage to same-sex couples. Despite Obergefell, however, the debate between supporters of same-sex marriage and their conservative opponents continues. In this symposium, Patrick Lee reprises the New Natural Law against same-sex marriage, and Amy Wax raises questions about how confident we should be that same-sex marriage will not have negative effects on children. Both challenge Macedo to revisit and defend the arguments he makes in support of same-sex marriage.

While most people are by now familiar with conservative objections to same-sex marriage, it is less well known that same-sex marriage also has critics on the left. Some left-leaning critics share their conservative counterparts’ assumption that, as Shannon Gilreath puts it, marriage is a “thoroughly heterosexual institution.” The difference is that, for these critics, a strong association with heterosexuality is a reason for gays and lesbians to be skeptical of the institution of marriage rather than a praiseworthy feature of it. In his contribution to this symposium, Gilreath challenges Macedo to take a more critical perspective on the ways marriage promotes forms of gender inequality and hierarchy that gays and lesbians should be loath to perpetuate.

In the second part of his book, Macedo turns to a different set of concerns, namely whether civil marriage should continue to be a legally recognized as a “status relation” in American law. Critics from across the ideological spectrum have argued that marriage should be “disestablished” and left to private institutions in a way that mirrors the disestablishment of religion. While these critics often appeal to the idea that the state should be neutral between competing conceptions of the good life, Tamara Metz, in her contribution to this symposium, raises slightly different concerns. Metz argues that we shouldn’t allow the state to serve as an ethical authority with the power to determine or influence how we conduct our intimate lives. Marriage, she suggests, is too “special” to be placed in the hands of the state. In addition, Metz claims that the institution of civil marriage has a host of negative consequences such as promoting the idea that caring for the vulnerable should take place in the “gendered, privatized and sentimentalized family” rather than being a matter of public concern. She challenges Macedo to defend his claim that there are good liberal public reasons to retain the privileged status of marriage in the law.

The final part of Macedo’s book considers a topic that is now at the forefront of political and legal discussions after Obergefell: whether legal recognition of same-sex marriage should also lead to the legal recognition of polygamy or plural marriage. The fear that there is a slippery slope leading from same-sex marriage to polygamy has been a staple of conservative arguments for some time. What is new are the growing number of liberal and progressive thinkers who share the conservative view that same-sex marriage inevitably leads to recognizing plural marriage, but who welcome this result. Macedo, however, argues that the cases of same-sex marriage and polygamy are importantly different. While there are good public reasons for legally recognizing the former, these reasons do not extend to the latter. In addition, there is good evidence that polygamy, at least in the forms it most commonly assumes, has negative effects on the well-being of women, children, and society more generally. Therefore, there is no slippery slope from same-sex marriage to polygamy.

In her contribution to this symposium, Laurie Shrage questions these arguments, suggesting that just as there are better and worse forms of monogamous marriage, there are better and worse forms of plural marriage. Traditional polygamy may foster women’s inequality and produce other harmful effects, but there are new forms of “ethical polyamory” that lack these negative qualities and may deserve legal recognition. Amy Wax likewise questions whether Macedo has succeeded in justifying his firm opposition to legally recognizing polygamous unions, suggesting that he fails to distinguish between negative effects that are “inherent” in plural marriage and those that are only contingently associated with its current practice. More generally, she argues that while few Americans are likely to choose plural marriage, a successful case against it needs to invoke a more robust conception of the nature of marriage (of the kind provided by conservative moralists) than Macedo provides. Shrage and Wax thus challenge Macedo to give further defense to his claim that “the values of equal freedom that undergird gay rights support a wide variety of well-founded worries about polygamy as a social system” (148).

For those interested in contemporary debates over the future of marriage, Macedo’s Just Married is an essential starting point. He provides a comprehensive overview of all of the main debates and defends his own positions with arguments that eschew philosophical abstraction and are informed by a wealth of empirical data. Whether or not one agrees with him, the book rewards serious engagement, as this symposium will more than amply demonstrate.

Laurie Shrage

Response

Just Two

Macedo and Marriage Equality

In Just Married, Stephen Macedo eloquently articulates and defends a liberal conception of marriage: an institution based on equality and individual autonomy, but limited by important state purposes and widely shared values. On this view, restricting civil marriage to couples of different gender infringes equality and freedom, while serving no legitimate governmental end. Alternatively, he argues that restricting civil marriage to unions of two does serve legitimate state aims, and does not unjustly constrict our liberty. In addition, Macedo resists proposals from libertarians on the right and left to end the state’s regulation of marriage, and replace it with either a system of private contracts or a new civil status (e.g., “civil union”). He argues that state-regulated marriage does not unduly limit religious freedom, as religious marriage is distinct from civil marriage, and different faith groups have the authority to define and limit access to marriage in their community (123–24). Nor does state-regulated marriage involve improper state intrusion into the private sphere, given that couples can modify some of the standard obligations or privileges with a prenuptial agreement (87–88), and given that the general expectations and obligations of marriage leave considerable room for spouses to define their roles and relationship. Moreover, Macedo contends that the gains of renaming marriage are questionable, while the losses are substantial. Macedo writes, “What I disagree with are proposals to eliminate marriage in favor of some newly minted form of relationship invented by theorists, or to radically remake marriage into something unrecognizable. We should build on the success of marriage” (133). Macedo believes both that marriage has many benefits for individuals and society and that it may not be suitable for everyone, and therefore he does not endorse discrimination against those with less conventional living arrangements (unmarried couples, triples, etc.). Instead, he thinks that the state can support different types of intimate care relationships without radically changing or abandoning civil marriage, for example by having programs that address the needs of single parents, domestic partners, and so on (135).

When Macedo began writing this book, same-sex couples did not have access to civil marriage in many US states, nor did the US federal government recognize marriages between people of the same legal sex—those performed in other countries or US states that had lifted gender restrictions on marriage. But by June 2015, the year of this book’s publication, the Supreme Court had invalidated all remaining state and federal bans on same-sex marriage. The opposition to same-sex marriage collapsed rather quickly, and this rapid change in both public and legal opinion surprised people on both sides of this debate. One reason for such rapid change is that the movement to make civil marriage more inclusive, according to Macedo, was about “securing the equal status and standing of gay people in America” (122). The marriage equality movement’s aim was not to “radically remake marriage into something unrecognizable,” instead it aimed to ensure that gay people could participate in and enjoy the benefits of marriage as the institution is presently configured. To exclude gay people from marriage was not only to deprive them of the goods of marriage, but this exclusion implied that their primary relationships were less worthy of protection and social respect. For Macedo, secular marriage law can and should respond to advances in our understanding about sexual orientation, race, gender, age, disability, divorce, procreation, and so on, and also to the legitimate demands of marginalized groups for equal treatment. By 2015, the majority of US voters were ready to accept the demands of lesbian and gay Americans for full equality, and the courts facilitated policy changes that were long in the making. Do we now need to make more changes to the institution of civil marriage in order to meet the demands of other historically oppressed group?

Before I discuss this question, let me first identify what I find most helpful in Macedo’s approach to the issue of marriage reform. First, he understands that demands for social and legal change emerge from histories of and resistance to social oppression, and not from the creative endeavors of intellectuals and cultural elites. For example, in the twentieth century, many demands for marriage reform grew out of a broad social movement for women’s equality. Women’s rights activists demanded an end to “head and master laws” that allowed husbands to control and manage a couple’s joint property (125), and they demanded changes to domestic violence and rape laws so that wives could file formal complaints against abusive husbands. In this respect, marriage reform is an important means to the larger end of social equality without regard to sexual orientation, gender, race, fertility status, religion, disability, and so on. Should movement-led marriage reform fail, this usually results in a serious set back for the civil rights struggle behind it (122). Second, Macedo’s work on the topic of marriage forces us to rethink what makes someone a progressive or conservative. Macedo is not a social conservative in the sense of someone who endorses a culturally traditional or religiously based conception of marriage. But he is conservative in that he seems to favor incremental social change over radical or revolutionary institutional change. Moreover, while Macedo’s views on marriage are classically liberal, they are also progressive in that he places the interests of ordinary individuals above those of cultural or economic elites. For example, his support for state-regulated marriage stems from the belief that a publicly negotiated and standardized package of marital rights and duties will best protect those in the weakest bargaining positions.

While the marriage equality movement has won an important victory for LGBT rights in the United States, the struggle to end discrimination against the LGBT community is far from over. The recent “bathroom bills” coming out of several state legislatures are only one visible indication that there will be more fights ahead. Yet we should not underestimate the importance of the recent victories around marriage, and Macedo’s book can help us appreciate them. Not long ago, to be a “homosexual” was to be a social outcast; a sexual, social, and psychological deviant; or a morally weak, lonely, tragic, isolated individual. Macedo discusses the public meaning of marriage, and of course there is also a public meaning to being gay or straight, and trans or cisgender. The marriage equality movement forced out different stories, or created a different public narrative, about the meaning of being gay. The narratives we heard were about love and commitment between two women or two men, about adult care and responsibility for children regardless of sexual orientation, and about the fundamental importance of being able to form and expand one’s family. These narratives changed the public meaning of being gay, in part by associating gay people with an institution that represents widely shared values, and this challenged earlier more negative meanings.

Other civil rights activists have a lot to learn from the marriage equality movement. For example, while the women’s rights movement has had a lot of victories around marriage, education, and employment, keeping the heated debate over unrestricted access to abortion in the second trimester of pregnancy in the front and center of one’s movement distorts the public image of a feminist to mean someone who opposes life, birth, motherhood, family, children, commitment, parental sacrifice and love, and so on. Suppose the demand for greater social support for working mothers (e.g., universal and affordable preschool and child care) had been given greater priority and public attention, how would the public meaning of feminism be altered? While Macedo discusses some of the internal conflict within the LGBT movement over the priority given to access to civil marriage, he does not give much attention to identifying the next big issue that the LGBT movement should get behind. Instead, he devotes much of the last part of his book to showing that the push for marriage equality has not opened up a can of worms that will ultimately harm the institution of marriage. In particular, the third part of his book is devoted to showing why marriage equality does not entail that polygamists should be given access to civil marriage. Here he argues that the liberal commitments that justify giving couples of the same legal sex access to civil marriage do not justify giving triples or larger units such access (161). This is because such marriages involve the subordination of women and generate worse outcomes for children (169–72), and a liberal state has a legitimate interest in protecting both groups.

Around the world and throughout history, the form of polygamy that is most practiced and permitted is polygyny (150). This is an arrangement in which a man can take multiple wives. Polyandry, in which a woman may take multiple husbands, has been practiced and permitted in very few societies. Macedo points out that, if polygamy were permitted in the United States, then the form it would take in the vast majority of cases would be that of polygyny. This is true, in part, because the religious groups in the United States that are favorable to polygamy—fundamentalist Mormons and some Muslim sects—permit only polygyny. Macedo then enumerates the many problems associated with polygyny: the subordination of wives to their husband, the social inequality polygyny promotes between men and women in general, the social marginalization of unmarried men who cannot compete for increasingly scarce women, the higher rates of domestic violence that have been documented in authoritarian polygynous communities, and lower levels of material and emotional support for each child (170–73).

Macedo is right about the history and prevalence of polygyny, and its problematic social effects, and therefore is right to worry about the social consequences of making civil marriage accessible to units of more than two. Yet, there is much left out of this story that needs to be filled in before we can rule out plural marriage. The main missing piece is that, around the world and throughout history, the most common form of monogamy is one in which a wife is socially and legally subordinate to her husband. Monogamy in such contexts promotes social inequality between men and women in general, and, in many monogamous families and communities, women and children experience high rates of domestic violence. Moreover, the institution of monogamy historically promoted the social marginalization of unmarried women (often the mistresses of married men or “spinsters”), as well as their children, especially through bastardy laws. Nevertheless, as women have achieved greater political and social equality in some industrialized, democratic societies, the marriage laws and customs in these countries have accordingly changed. Women now do not forfeit their basic civil rights when they enter marriage, and there are also more protections for children with unmarried (or married) parents. Because most liberal, democratic societies today are predominantly Christian—a religion that favors monogamy—monogamy has been more transformed by the advancement in women’s social standing than polygamy.

But this situation is somewhat of a historical accident. There is no reason to think that, as women achieve greater equality and rights in societies that permit polygamy, the terms of polygamy will remain the same. In some predominantly Muslim societies today, feminists are debating whether it’s better to end polygamy or change the terms of polygamous marriage, for example by requiring a husband to get approval from his current wife (or wives) before adding another, or by empowering wives so they can seek divorce with more favorable terms for themselves and their children. Under nonideal conditions, feminists within each society will need to figure out how to ensure that women have equal access to primary social goods. The problem for Macedo is that he seems unable to imagine how plural marriage, in theory or in practice, could be symmetrical and egalitarian (170). Yet, in liberal societies, where plural marriages would not be limited to those that are polygynous or exclusively heterosexual, there can be symmetrical commitments among all parties.1

In many liberal, democratic societies today, where a husband is no longer legally the head of his household and where a wife no longer has a legal duty to submit to her husband’s will, husbands still wield significantly greater social and familial power than their wives in a monogamous marriage. For example, a wife is much more likely than her husband to be the “trailing spouse” and primary parent and housekeeper, and these roles substantially limit a wife’s income-earning capacities and decision-making authority within her marriage and family, as well as her ability to exit an abusive marriage. Divorced women generally have less income-earning potential and social capital than their husbands, because both husbands and wives make a greater investment in his career. Consequently she (but not he) typically has less human capital when she exits a marriage than she had when she entered it. In short, even with the recent changes in marriage law in the United States and elsewhere, monogamous marriage, in practice, is still mostly a gender-structured and inegalitarian institution.

One of the promises of same-sex marriage is that it provides a model of marriage that is less likely to be structured by traditional gender roles (165). Indeed, same-sex marriage can provide a model of egalitarian intimate partnership for polygamy as much as for monogamy. For example, there are ethical (nondeceptive and responsible) polyamorists who may wish to make a lifelong commitment of mutual support among three or more partners. They may wish to raise children together in a common household, or link several households together as a single family. As long as our laws structure the terms of marriage so that all spouses have equal rights and responsibilities (divided among three or more, rather than two), why should a liberal egalitarian like Macedo object? It’s true that such an arrangement could default informally to a more unequal one, as often happens in monogamous units, but why should this tendency count only against plural marriage for Macedo? Indeed, if the reason that monogamy often defaults to a traditional division of labor between a primary income earner and primary homemaker is that it’s often difficult to combine these roles or do them each part-time, then polygamy offers more flexibility in regard to sharing these roles (e.g., two full-time income earners and one full-time homemaker, or three part-time income earners and homemakers, and so on).

Part of the problem seems to be that it is difficult for those of us who were raised in monogamous cultures to understand the rules of sharing in polygamous families. And unfortunately, the cases we see of polygamous families (i.e., polygyny) typically offer rules of sharing (sexual attention, property, residential space, decision-making) that are hierarchical and gendered. But many ethical polyamorists are inventing new rules of sharing, and it should not be too hard for political theorists and moral philosophers to comprehend them. For example, imagine three bisexual spouses of any combination of sexes, or three gay male or lesbian spouses. The rules of sexual attention would likely be different for such polygamists than for traditional polygynists. Moreover, the sexual division of labor in the household would probably differ from the traditional gender-structured one, especially with more adults to share childcare and housework. The rules of decision-making could also be egalitarian, and involve consensus building with equally weighted input from all spouses. The rules of spousal inheritance, child custody, and divorce would also need to be adapted for units larger than two, but this can be done in ways that respect the equal rights of all parties.2 Arguably, polyamorists who are allowed to formalize their long-term commitments of intimacy and co-parenting through legal marriage will be better able to protect their individual interests, and those of their loved ones, than polyamorists who must depend on informal understandings and agreements.3

I recognize that many people do not find plural marriage and intimacy attractive, including myself. This of course does not provide a reason to prohibit it, just as the fact that many do not find heterosexual or same-sex intimacy attractive is not a good reason for discriminating against those who do. Some might argue that children growing up in polygamous families would be disadvantaged, and of course this depends. If polygamy remains stigmatized and prohibited, then polygamous families will remain isolated from mainstream society. But if we support ethical polyamorists who want to marry, and we attempt to better understand their practices and family norms, then it is not obvious that the children of polygamous unions will be disadvantaged. Many people believe that children of divorced parents are disadvantaged, and sometimes this is true. But many also believe that the best way to deal with the realities of adult relationships is to permit divorce, challenge the social stigmas associated with it, and support divorced parents and their children.

Some might argue that polygamy would complicate the state’s administration of social security benefits, immigration privileges, and other such benefits and rights granted to spouses. However, the state’s job is already complicated by monogamists who divorce and remarry, and therefore who have numerous nonconcurrent spouses whom the state must recognize for the purposes of distributing benefits and recognizing next-of-kin rights. In practice, polygamy creates family structures that are not much different than serial monogamy. But even if plural marriage can be managed bureaucratically, Macedo might raise a similar objection. He could raise the worry that recognizing polygamous units would make marriage a less “intelligible” social institution because there would be such widely divergent forms. Consequently, we would no longer know what someone means when they say “I’m married.”

This objection can be met by recalling that Macedo acknowledges that marriage in liberal societies leaves spouses a considerable amount of freedom to define their roles and relationship. There already exist many different forms of marriage in our liberal and pluralistic society, such that we cannot (and should not) make assumptions when we learn that someone is married. There are people who have so-called “open marriages,” and who practice ethical polyamory. There are couples that have “marriages of convenience,” in which the partners are not sexually intimate. There are people who are married and do not cohabitate with their spouses, or do not have or intend to have children. There are people who are married to each other, but who are raising children with nonmarital partners. There are couples that have prenuptial agreements that substantially disentangle their financial assets. As mentioned earlier, there are couples that observe the rules of a traditional gender-structured marriage and those that don’t. Macedo may find this diversity and lack of legibility unfortunate, but many do not, and they do not want to be forced to conform to the ideals of marriage of the majority group.

Despite the diversity of marriage forms and customs, they all publicly symbolize and communicate a commitment among adults to form a family and engage in many of the forms of social intimacy and caregiving common to families (89). Polygamy is no different than monogamy in this respect. Moreover, this seems to be one of the aspects of preserving civil marriage that Macedo most cares about. By making a commitment of this sort, people differentiate one kind of adult relationship from others, and ask their community to respect and support this relationship. The mutual support and long-term commitments that define these relationships are valuable to society, as well as to the members of well-functioning families themselves. While many marriages, both monogamous and polygamous, become unstable at some point, it’s not evident whether one kind is more durable than another. Polygamy has the advantage of being able to add new intimate partners without having to divorce the old, but more isn’t always merrier. We really don’t know what legal polygamy under conditions of gender and sexual equality, in a liberal, secular state would be like, because we don’t have many examples. Not too long ago we did not have many examples of same-sex marriage under these conditions, and yet the examples we have now are highly encouraging.

While I believe that polygamy can be permitted in a liberal society without harming the interests of women and children, I agree with Macedo that lasting and stable change in a democratic society comes from the bottom up. Therefore, if and when there is a social movement of ethical polyamorists who organize to demand access to civil marriage (or the decriminalization of “bigamy with transparency”), their relationships need to be evaluated and understood with an open mind, and without irrelevant cultural baggage or bias. Although the slippery-slope worries of the opponents of marriage equality are worth a serious response, which Macedo’s book well provides, these concerns should never allow us to engage in unjust discrimination—now or in the future.


  1. See Gregg Straus, “Is Polygamy Inherently Unequal?,” Ethics 122 (2012) 516–44; Adrienne Davis, “Regulating Polygamy: Intimacy Default Rules and Bargaining for Equality,” Columbia Law Review 110 (2010); and Laurie Shrage, “Polygamy, Privacy, and Equality,” in E. Brake, ed., After Marriage: Rethinking Marital Relationships (New York: Oxford University Press, 2016).

  2. See A. Davis, “Regulating Polygamy.”

  3. See Cheshire Calhoun, “Who’s Afraid of Polygamous Marriage?,” San Diego Law Review 42 (2005).

  • Stephen Macedo

    Stephen Macedo

    Reply

    Response to Laurie Shrage

    Laurie Shrage begins her essay with an excellent summary of my argument. I defend a liberal conception of marriage “based on equality and individual autonomy, but limited by important state purposes and widely shared values.” Restricting marriage to heterosexuals “infringes equality and freedom,” but limiting civil marriage “to unions of two” serves important public aims.

    Professor Shrage also worries that I have shortchanged the claims of egalitarian polygamists, or polyamorists, as they are frequently called. But before getting to that issue, I want to acknowledge and agree to several of Shrage’s observations. She suggests that the rapid success of the marriage equality movement was partly owing to its conservative and positive message of equality and inclusion: I believe she is correct. She suggests, moreover, that my account of marriage equality owes more to “histories of and resistance to social oppression,” rather than “the creative endeavors of intellectuals and cultural elites.” I would only add that movement leaders, progressive politicians, journalists, and academics helped by repeatedly responding to the arguments of same-sex marriage opponents. And the popular media—including television shows like Will and Grace—also helped a good deal. But it was ordinary people coming out of the closet and pressing for equal recognition that was probably decisive.

    Professor Shrage says that Just Married encouraged her to rethink “what makes someone a progressive or conservative.” This theme was on my mind as I wrote the book. She notes that I am not a social conservative, but that I do “favor incremental social change over radical or revolutionary institutional change.” Shrage goes on to say that my views on marriage are “classically liberal” but “also progressive in that” I place “the interests of ordinary individuals above those of cultural or economic elites.” She cites as an example my belief that the “publicly negotiated and standardized package of marital rights and duties” will better “protect those in the weakest bargaining position,” than, for example, academic proposals to substitute a more fully negotiated contractual relationship.

    Shrage is right that I’m suspicious of the many proposals for radical marriage reform advanced by academics and activists. Speculation has its usefulness, for sure, as do “experiments in living.” And I do not oppose radical change in all cases, but marriage is a peculiar institution: it frames and structures the everyday lives of tens of millions, and it only functions, insofar as it does, because marriage law and policy instantiate and support social meanings and norms that are taken seriously by ordinary people in their everyday lives. The meaning and significance of this institution depend on the lived daily experience of ordinary people: including how they live the most intimate aspects of their lives. It is no wonder that state involvement in marriage seems highly problematic to those with liberal sensibilities.

    In any event, because marriage law and policy provide scaffolding for the ongoing relationships of couples and families, existing expectations deserve careful attention and due respect. Absent clear injustice or abuse, change should percolate from the bottom up. During my lifetime change has been generally incremental but in aggregate, dramatic and positive.

    Shrage’s main substantive complaint concerns my opposition to equal recognition for plural marriages, at least those that take an egalitarian as opposed to traditional form. Her disquiet with my skepticism concerning egalitarian polygamy is expressed in muted form here; others have been more vociferous and Shrage herself has in the past written sympathetically about plural marriage and temporary marriage.1

    To be clear about terms: polygamy is the state of being married to many spouses, and is sometimes also referred to as “plural marriage.” Historically, it has come in two forms, by far the most common is “polygyny,” in which one husband takes multiple wives. When people use the more general term “polygamy,” they are generally referring to polygyny. “Polyandry,” in which one wife has multiple husbands, is rare in the historical record and current practice (and in fact it may refer to a pair of brothers, for example, marrying or owning a single wife, perhaps due to the inability of a family farm to support two households). Polyamory is, as I said above, a more egalitarian form of plural marriage or relationship: a new phenomenon and the subject of academic speculation and attention in the popular media. It has not anywhere developed as a well-established social form: that is, as a widespread and stable social practice.

    She says that my “problem” is that I seem “unable to imagine how plural marriage, in theory or practice, could be symmetrical and egalitarian.” She points out that “there are ethical (non-deceptive and responsible) polyamorists who may wish to make a lifelong commitment of mutual support among three or more partners.” They are “inventing new rules of sharing, and it should not be too hard for political theorists and moral philosophers to comprehend them.” She suggests we “imagine three bisexual spouses of any combination of sexes.” And she insists that numbers are not crucial to whether a group of adults wish to commit “to form a family.”

    Professor Shrage does not give my “imagination” enough credit. I can imagine all sorts of things, but that is not the issue. Our subjects are actual social institutions and lived experience.

    Shrage does not conclude, however, by calling for immediate recognition of plural marriages. She insists only that consensual plural relationships should not be prohibited or criminalized, a point I also endorse. She grants what I take to be the crucial point: “We really don’t know what legal [egalitarian] polygamy under conditions of gender and sexual equality, in a liberal, secular state would be like, because we don’t have many examples.” She adds, “I agree with Macedo that lasting and stable change in a democratic society comes from the bottom up.”

    Now we are talking. On this basis, I can certainly agree with her conclusion, which is fair and valuable: “If and when there is a social movement of ethical polyamorists who organize to demand access to civil marriage (or the decriminalization of ‘bigamy with transparency’), their relationships need to be evaluated and understood with an open mind, and without irrelevant cultural baggage or bias.” Legitimate concerns “should never” be allowed to rationalize “unjust discrimination.”

    With this I wholeheartedly agree. Indeed, it would be premature to attempt to create law for “ethical polyamorists” based on what we imagine it to look like, and without more of an experiential basis. There are no systematic studies of polyamory: much of the academic literature is based on anecdote and speculation. And many actual polyamorous relationships seem to have more to do with fluid adult relationships than marriage-like commitments. I would frame this point of convergence between Professor Shrage and myself as the appropriately liberal position: let us see what this novel social form amounts to—what its needs, goods, and possible vulnerabilities are—before we create law for it.

    Professor Shrage also notes that “even with the recent changes in marriage law in the United States and elsewhere, monogamous marriage, in practice, is still mostly a gender-structured and inegalitarian institution.” That is an important observation, and it is one that is asserted in especially sharp form by Professor Gilreath.


    1. See Laurie J. Shrage, “Polygamy, Privacy, and Equality,” in After Marriage: Rethinking Marital Relationships, Elizabeth Brake, ed. (Oxford University Press, 2016); and Shrage, “Reforming Marriage: A Comparative Approach,” Journal of Applied Philosophy 30 (2013).

Stephen Macedo

Response

Response to Five Critics

Just Married reexamines contemporary debates over marriage from the standpoint of justice and the public good. It offers a liberal democratic defense of same-sex marriage, civil marriage as a special status in law, and monogamy. The substance of my argument is liberal, democratic, and reformist, but not radical, indeed my position is in some important respects, conservative.

My intention was to try and figure out the merits of various leading claims—in political theory and ethics, law, and public policy—concerning same-sex marriage, marriage itself, and monogamy as compared with polygamy, polyamory, and other alternatives. I critically engage with academic writings, court cases, political debates, and also popular media, magazines, television, and the blogosphere. Everyone has an opinion about marriage and the opinions of ordinary people are very much worth listening to. Marriage is, after all, a social institution of concern to us all: one that only works insofar as it is taken up and taken seriously by ordinary people.

My subject is the social institution of civil marriage as it has come to be, especially but not only in the United States (countries differ in their marriage culture and law, so some of what I say applies elsewhere). I take a more historical and global perspective on the decline of polygamy and the rise and gradual spread of monogamy.

I wrote on gay rights issues in the late 1980s and 1990s. This was often against conservatives—especially (but not only) scholars associated with the New Natural Law—but also various forms of progressive radicalism. When I returned to teaching these around 2008, I was impressed by the prevalence of the claim, advanced by many on the political right and the political left, that same-sex marriage would be an unstable and unprincipled stopping point on the way to more radical marriage reform. Justice Scalia argued repeatedly in cases from Romer v. Evans (1996) to Obergefell v. Hodges (2015) that protections for gays called into question “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”1 Equally if not more interestingly, however, was the extent to which many scholars on the left in effect embraced the slippery slope. Progressive scholars invoke ideas such as state ethical neutrality and political liberalism to argue for the illegitimacy or injustice of monogamous marriage as a status institution in law and monogamy. Other scholars have argued against categorical prohibitions on consensual adult incest. Against all of these I argue that same-sex marriage, marriage as a civil status in law, and monogamy make sense here and now as ways of securing the freedom and equality of all, and promoting the good of spouses, children, and society.

I appreciate the careful attention that Erik Anderson and my five critics have given to Just Married.2 Given the politically as well as morally fraught nature of these controversies, I especially appreciate their well-informed thoughtfulness, their disciplinary breadth (representing law, political theory, and philosophy), and their intellectual and political diversity, which ranges across various flavors of progressivism and conservatism.

Let me say finally that I deeply appreciate the seriousness and thoughtfulness of all five of my interlocutors. The issues we have been discussing are important and complex. The last fifty years have witnessed a great expansion in sexual freedom for all and greater equality for women and sexual minorities. But marriage and the family are social institutions that structure important parts of our lives and that are crucial for reproducing and nurturing rising generations. These institutions structure and shape our deepest aspirations about our lives and our good: as individuals and in our most important relationships. This seems to me both legitimate and extremely valuable insofar as these institutions help secure a “fully adequate scheme of equal basic liberties” that are compatible with like liberties for all, and fair equality of opportunity to pursue the great goods of family life, along with promoting a variety of other broad-based goods. I take seriously the judgment that monogamous marriage is part of the basic structure of a liberal democracy.3

While equal access to marriage seems pretty well settled in constitutional law and increasingly in the public mind, I have no doubt that we should continue to debate the proper shape of civil marriage, monogamy, and the limits of sexual autonomy.


  1. US Supreme Court, Lawrence v. Texas, 123 S. Ct., 2490 (J. Scalia dissenting).

  2. I want especially to thank Professor Erik Anderson for his critical comments and suggestions on drafts, and also those offered by Tamara Metz.

  3. See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 331–34; and, A Theory of Justice, rev. ed. (Cambridge: Harvard University Press, 1999).

Shannon Gilreath

Response

Macedo’s Incomplete Sex Equality Analysis

It is a pleasure to have been invited by Professor Macedo to participate in this symposium, especially since it is clear that he disagrees with me about the importance of marriage and what has been—and is—at stake in the marriage debate.1 While I do not have the space here to rehearse my arguments, paraphrased by Professor Macedo in the opening pages of Just Married,2 I would like to take a moment for clarification. I have never said that people should not want to get married, or that they should not get married, or that marriage is in all cases antiegalitarian—although my argument has certainly been caricatured that way by less serious and less careful writers than Professor Macedo. I never said that people can’t work out more or less egalitarian relationships one-on-one. Rather, I offered a structural critique. By choosing the path that it did—by making marriage its raison d’etre—the gay movement chose assimilation over critique. It was a lost opportunity.

The question most urgent, for me at least, was never whether gay relationships ought to be subject to special rules or prohibitions (they should not), but rather whether a thoroughly heterosexual institution like marriage should have been adopted wholesale—without reflection and without critique—thus extending heterosexuality’s norms, which have been and which remain substantively unequal, especially where sex is concerned.3 These norms are rarely interrogated.4 We rarely ask, for example, what role marriage might play in entrenching male-dominant norms. Or to what extent adopting a thoroughly hierarchical structure of human relating might amplify such norms in homosexual relationships, further sexualizing hierarchy and gendering homosexual sex. To ask such questions seems, today, to be viewed as passé—nearly as passé as uttering (or writing) the word patriarchy seems to be. Professor Macedo, for example, suggests that “the complaint about gender equality [in marriage] is dated” (126). But I want to know why, for example, if there is no basis for disputing the fact that the state-sanctioned home is the most violent place for women in society,5 should gays—men or women—clamor to get into it without any reflection? Why should the violent nature of the structure itself be obscured or lied about? Why should the violence in gay relationships be ignored? And why are so few asking whether the marital structure might not make these problems, which are both sex and gender based, worse?

This kind of studied blindness was present in the case from which Obergefell6 was a natural outgrowth: Lawrence v. Texas.7 In Lawrence, Justice Kennedy waxed poetic about a same-sex relationship, which he was bent on transfiguring into a love story in the heterosexual (fictional) image. Justice Kennedy wrote about John Lawrence and Tyrone Garner as if the two were living a romantic ideal.8 They were not. No one, it seems, wanted to question the disparity in age, race, or class actually present. Our legal system does not care about inequalities in sexual relationships. At least, that is, the system does not care about inequalities that are normalized because they are principal tenets of male dominance. The general assumption of consent in sexual relationships that do not involve children9 or animals10 or (more recently) rape as defined by law11 is the preeminent heterosexual value.

Justice Scalia, in a foaming-at-the-mouth dissent, claimed that the outcome in Lawrence mandated a decriminalization and/or legalization of same-sex marriage and bigamy, among other horribles.12 Obergefell proved him right about same-sex marriage, in an opinion that is even more saccharine than Lawrence.13 But what about bigamy, most commonly practiced in the United States as polygamy? Do the Lawrence and Obergefell cases require the legalization of this practice? Both Professor Macedo and I agree that Obergefell does not require such an outcome. I think we also agree on some of the reasons why, although our agreement on why polygamy should not be legalized highlights, I think, how much Professor Macedo misses when it comes to sex inequality in relationships of the two-by-two standard.

Polygamy, by virtue of television shows like Sister Wives, has become part of the pop culture mainstream. Certainly, there is a concerted effort to make the public perception of polygynous unions of the type desired by some Mormons warmer. The argument from the pro-polygamy camp is that plural marriage by certain religious believers is morally the same as the preference of some gays to get married. Supporting same-sex marriage, while condemning polygamy, is, so the argument goes, hypocritical at best (see Macedo, 163). At worst, it bespeaks an “orientalist mindset” and is “morally repugnant” (Macedo, 157).14 Professor Macedo seems to have some sympathy with the idea that critiquing religious or cultural manifestations of patriarchy is problematic, writing that “the rhetoric deployed by Chief Justice Morrison Waite [in Reynolds v. United States, the Supreme Court case upholding antipolygamy laws] remains deeply alarming” (156). Waite said that, except for Mormons, polygamy was known primarily only among “Asiatic and African people” (which of course is factual), and that “polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism.”15 Nothing Waite said, of course, is wrong. And, when you are a feminist, you begin to appreciate any critique of patriarchy you can find. And, as Professor Macedo notes, “The fact that it can be used to rationalize or amplify prejudice should sensitize us to the inevitability of our own biases but not derail balanced inquiry” (157).

Of course, the ability of more people to see the harm in polygamous marriage exists precisely because such biases run the other way. As I noted, the state-sanctioned home is the most dangerous place for women. Yet, the kind of scrutiny with which we approach ideas of sexual agency, emotional and physical well-being, and consent in the context of polygamy is by and large absent from any mainstream academic discussion of marriage per se. Most of the time it seems it is hardly worth asking whether the marriage is violent, whether it is happy, or even why she died in it. Few are asking what connection there may be between marriage and family, and sexual harassment and prostitution.16

This last is important. What defines prostitution and sexual violation? Generally, in the West at least, it’s the standard of consent. But a consent standard that requires a yes, with the default being no,17 while a vast improvement over the old no-means-yes default, is still problematic in a context in which sex between men and women is, in fact, unequal.18 How often is a yes a meaningful yes? How often is a yes simply surrender to the inevitable? “Okay, let’s just get it over with.” How many women surrender to the patriarchal imperative that the delivery of sex and sexuality is necessary for material survival, as in: she needs to stay in his house; she wants to keep the lights on; or the line of credit open; or money in the child’s college fund. Is this kind of capitulation really meaningful consent? In other words, does a consent standard simply raise the floor of sex inequality, so that men and women remain substantively unequal in sex, just at an elevated level? Because polygamy is, to echo Justice Waite, exotic—because the problems inherent in polygamous marriage are not “normal”—these problems of sexual abuse and gender hierarchy emerge in the public consciousness. They emerge as social and systemic and systematic. When they occur pervasively and systematically in monogamous marriages—indeed, it seems they are rarely not there—they are seldom examined. Socialization demands that they remain hidden. When they are visible, they are explained away as episodic, not systemic.

The Human Rights Committee of the United Nations has called polygamy “incompatible” with the equal right to marry, a violation of the “dignity of women,” and “an inadmissible discrimination against women.”19 The United States has ratified the International Covenant on Civil and Political Rights, and a General Comment is an authoritative interpretation.20 This is substantive. It is an analysis grounded in a substantive sex inequality rationale. But when is a marriage a sex-equal marriage? When does marriage for women not approximate a kind of property arrangement, whereby sexual agency is surrendered to a man? Therefore, one might fairly ask in exactly what context women are not sexual objects in the marital relation? Obviously, only women can bear children. That’s biological. But statistically and materially, women do the lioness’s share of child rearing.21 That’s political, and it’s systematic, in the sense that it is socially ordered. Women are socially conditioned from birth to get married and to have children. When they don’t, they are often socially stigmatized. Where is the sex equality? In an odd reversal of feminism, women we used to call “housewives”—a rather fitting term—are now said to “work inside the home.” Of course that’s true, and it’s supposed to, in an increasingly politically correct world, raise to the public consciousness the value of women’s work.22 Perhaps it does, although I don’t see women being compensated accordingly. But what it does do is to highlight the role of the man in such relationships as both husband and, effectively, employer. I say women in such situations are being exploited for their labor and being given the social equivalent of a stick-on gold star in return. No few women resent it. Professor Macedo suggests that any persisting hierarchy in monogamous marriages is more a function of class than patriarchy per se, claiming that inequality of the sexes is less of a problem for the better educated and the “better off” (114–15). If we consider who is doing the uncompensated labor of “housework” in our society, it is true that of all stay-at-home mothers those with college degrees make up the smallest percentage at about 21 percent.23 Compare this figure to the number of stay-at-home fathers with a college degree, which is about 3 percent.24 In fact, fathers of any educational level staying at home account for only 16 percent of all stay-at-home parents. Of course, the question of who is doing the majority of the nation’s uncompensated labor in the home is only one measure of sex inequality. But it seems, regardless of education, women—wives, not husbands—fill these roles. The resulting inequality is structural, cutting across demographic lines, and it is gendered to the ground.

One argument of the gay movement has been that gender integration of the institutions of marriage and motherhood will change them for the better, make them less (were the word not so damn passé) patriarchal.25 In fact, many, if not most, homosexual marriages are gendered, with both partners acting out traditional gender roles where one partner assumes the characteristics of the opposite gender.26 Perhaps not that surprisingly, the central institutions of gender inequality—marriage, motherhood, and family—go right on being central institutions of gender inequality regardless of the sex of the players involved. Alarmingly, the sexual and other physical violence pervasive in heterosexual marriages is present in same-sex marriages as well. Recent studies have suggested that 23.1 percent of cohabiting gay men were raped and/or physically battered by a spouse or cohabiting partner at some time, compared to 7.7 percent of men cohabiting in opposite-sex partnerships.27 Sexual violence—a crucible of social inequality of the sexes—as a power relation goes unchallenged and unchanged, both by the law and by the movement for so-called marriage equality. In reality, heterosexuality’s privileges of privatized violence, economic inequality, and sexual aggression are simply extended, with impunity supplied by state sanction, into gay relationships, cloaked now in privacy and the romanticism of the family ideal.

While Professor Macedo sees this kind of abuse, or at least its potential, in the context of plural marriage, he does not see it in so-called monogamous marriages, writing, “In the contemporary world, monogamy is at least structurally egalitarian” (Macedo, 187). While he leaves some room for the obvious triumph of practice over form, I simply cannot agree that the form itself is structurally egalitarian. To suggest that it is, is little better than propaganda. That which is systemically unequal cannot be structurally egalitarian. Consider here the marital rape exception. Students, evidently misled by someone, will often say to me, “But Professor, the marital rape exception has been eliminated.” This is not true. Marriage, as we know it, which depends on sexual delivery, usually by women to men, would not survive if it were eliminated. So, in the face of much feminist organizing, it has adapted. Forced sex is still largely invisibilized in the marital context. In roughly twenty states, special exemptions from prosecution exist if the parties are not living apart, or legally separated, or have not filed for divorce or an order of protection.28 Some states require the wife to report the rape within a short period of time.29 Some require that a wife’s resistance be overcome by physical force.30 Another group exempts husbands who rape wives under the age of consent or who are incapacitated physically or mentally.31 This is not structural equality. It is systemic, systematic, institutionalized inequality. So I would suggest the reverse of Professor Macedo. Marriage may exist in some egalitarian form as a matter of individual practice, but certainly not as a matter of principle. The fact that this can be seen when many women are concerned but not one woman, or one gay man, troubles me.

I want an honest sex equality analysis, finally, of marriage in whatever form.


  1. My thanks go to Liz Johnson, reference librarian at the Worrell Professional Center Library, Wake Forest University, and law student Josh Garrett, for their indispensable assistance. Thanks also to Professor Erik Anderson.

  2. Stephen Macedo, Just Married: Same-Sex Couples, Monogamy & the Future of Marriage (2015), 7.

  3. Shannon Gilreath, The End of Straight Supremacy (2011), ch. 6.

  4. Sometimes someone with whom we generally disagree can be excruciatingly right. When the Democratic National Convention featured a Muslim father, whose son served and died in the US military, Donald Trump replied, “I’d like to hear what his wife has to say.” The wife had appeared beside her husband, with her head covered, on the stage, but had not uttered a word. Media condemnation was swift. Trump was pilloried for insulting a grieving mother and for attacking the family of a presumed military hero. In reality though, Trump committed a cardinal sin for liberalism. He did what those of us loosely designated “progressive” are conditioned not to do: he made a dig at religion; he interrogated family structure; he mocked the liberal presumption of consent. (And I should in no way be read to suggest that Trump’s position was, in fact, this kind of intellectual position.)

  5. See Catharine A. MacKinnon, Sex Equality (2001), at 715–24, 888–91 (collecting data and analyzing “domestic” violence).

  6. 135 S. Ct. 2584 (2015).

  7. 539 U.S. 558 (2003).

  8. Id. at 567, 573–74, 578–79.

  9. See, e.g., 18 U.S.C. § 2251 (2012); N.C. Gen. Stat. § 14–27.25 (2016); Petit v. Erie Ins. Exch., 117 Md. App. 212, 224–25 (1997).

  10. Rebecca F. Wisch, Table of State Animal Sexual Assault Laws, Michigan State University College of Law Animal Legal & Historical Center (2016), https://www.animallaw.info/topic/table-state-animal-sexual-assault-laws.

  11. See, e.g., Cal. Penal Code § 261 (2016); N.C. Gen. Stat. § 14–27.24 (2016).

  12. 539 U.S. at 590, 601, 604–05 (Scalia, J., dissenting).

  13. 135 S. Ct. at 2594–95, 2597–602, 2608.

  14. Quoting from the opinion of federal district judge Clark Waddoups in Kody Brown, et al. v. Jeffrey R. Buhman (2013).

  15. Reynolds v. United States, 98 US 145, 164 *1878); Macedo, 157.

  16. There are notable feminist exceptions, see, e.g., Catharine A. MacKinnon, “Human Rights and Global Violence Against Women,” in Are Women Human? (2006), 28.

  17. Jessica Bennett, “Campus Sex . . . With a Syllabus,” NYTimes, Jan 9, 2016, http://www.nytimes.com/2016/01/10/fashion/sexual-consent-assault-college-campuses.html?_r=0.

  18. See Robin West, “Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment,” Florida Law Review 42 (1990) 45, 69; For a sex equality alternative to “consent,” see Catharine A. MacKinnon, “Rape Redefined,” Harvard Law & Policy Review 10 (2016) 431.

  19. U.N. GAOR, Hum. Rts. Comm. 68th Sess., 1834th mtg. para. 24, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000).

  20. The US finally ratified the ICCPR on June 8, 1992.

  21. Elizabeth M. Hill and M. Anne Hill, “Gender Differences in Child Care and Work: An Interdisciplinary Perspective,” Journal of Behavioral Economics 19 (1990) 81–101; see also Bureau of Labor Statistics, American Time Use Survey Summary—2015 Results (2016), http://www.bls.gov/news.release/atus.nr0.htm.

  22. See, e.g., Robin L. West, “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” Wisconsin Women’s Law Journal 3 (1987) 81.

  23. See http://www.pewsocialtrends.org/2014/04/08/chapter-2-stay-at-home-mothers-by-demographic-group/.

  24. See http://www.pewsocialtrends.org/2014/06/05/chapter-1-the-likelihood-of-being-a-stay-at-home-father/.

  25. See Gilreath, End of Straight Supremacy, 221–22.

  26. Ibid., 221n45 and accompanying text.

  27. L. Kevin Hamberger and Mary Beth Phelan, Domestic Violence Screening and Intervention in Medical and Mental Healthcare Settings (2004), 301.

  28. See, e.g., S.C. Code ANN sec. 16-3-615(a) (2010).

  29. See, e.g., S.C. Code ANN sec. 16-3-6159(B) (2010).

  30. See, e.g., Nev. Rev. Stat. Ann sec. 200.373 (West 2009); Okla. Sta. tit. 21 sec. 1111(B) (2010).

  31. See, e.g., KY Rev. Stat. Ann sec 510.030 (West 2010); N.H. Rev. Stat. Ann. sec 623-A2(h) (2010).

  • Stephen Macedo

    Stephen Macedo

    Reply

    Response Shannon Gilreath

    If Laurie Shrage expresses some appreciation for what she sees as my combination of “small ‘c’ conservatism” and progressivism, Shannon Gilreath is more critical. Professor Gilreath regrets, indeed, that “the gay movement chose assimilation over critique,” and “adopted wholesale—without reflection,” or critique, a “thoroughly heterosexual” and “thoroughly hierarchical structure of human relating” such as marriage. Marriage equality for gay and lesbian couples could have the perverse effect, moreover, of “further sexualizing hierarchy and gendering homosexual sex.” Professor Gilreath calls for, and to some extent offers, a structural critique of marriage as hierarchical, patriarchal, and riven with violence.

    The core of Professor Gilreath’s complaint is that I do not attend sufficiently to the ways in which gender inequality, sexual violence, and wider social and economic inequalities negate the freedom and autonomy of a great many spouses and partners, especially but not only women, and nullify the good of marriage more broadly. I am, in short, blind to inequality, domination, and violence in marriage.

    In my book I do suggest, as Professor Gilreath quotes, that “the complaint about gender inequality is dated.” I referred there to the profound changes in law that erased the many differences in legal rights and obligations of men and women, arguing on that basis that “marriage is no longer essentially gendered.”1 The law of marital coverture that “incorporated and consolidated” the “very being or legal existence of the woman . . . into that of the husband,” during marriage.2 Wives could not enter into contracts without their husband’s consent, could not sue or be sued, or “serve as the legal guardians of their children.” A wife was the property, including the sexual property, of her husband.3 These profound changes in law are summarized by Judge Marsha S. Berzon in a concurring opinion in the Ninth Circuit Court of Appeals case Latta v. Otter, in 2014. She makes the point that “the legal norms that currently govern the institution of marriage are ‘genderless’ in every respect” except the requirement, in 2014, that the spouses be “of different genders.”4

    Of course, legal norms are one thing and lived reality is another. I also argued, against conservative defenders of traditional gender roles, that “liberal justice” requires “real equality of opportunity for men and women,” and that the law should not promote “stable marriages,” but rather “marriages that are just and healthy: low-conflict, equal partnerships that provide respect, status, and opportunity for men and women.” I argued that institutions and policies should guarantee “women as much as men” the “fair opportunity”—not merely the formally equal opportunity—to “pursue the great goods of family life and public life . . . a meaningful career and positions of leadership.”5 These remarks were all meant to signal that we are far from having achieved real equality in marriage.

    Nevertheless, Professor Gilreath is probably right that I should have provided greater detail and emphasis concerning persisting inequalities within marriage. Professor Gilreath offers an important specific observation, noting that while every state repealed its more general marital rape exemption by 1993, many states (perhaps 20) retain some form of special exemptions from prosecution for spousal rape: some, for example, require evidence of physical force.6

    I also worry, however, that Professor Gilreath’s portrait of marriage is too dark, and in one possible respect mistaken. Consider the claim that “sexual abuse and gender hierarchy . . . occur pervasively and systematically in monogamous marriages—indeed, it seems they are rarely not there,” yet, “socialization demands they remain hidden.” Professor Gilreath complains that while I correctly characterize polygamy as patriarchal, I fail to see that “the sexual and other physical violence pervasive in heterosexual marriages is present in same-sex marriages as well.” Indeed, marriage equality means that “heterosexuality’s privileges of privatized violence, economic inequality, and sexual aggression are simply extended, with impunity supplied by state sanction, into gay relationships, cloaked now in privacy and the romanticism of the family ideal.”

    There is no question that the deep and growing inequalities that poison American society also infect and undermine many marriages and other domestic relationships. American society is also strikingly violent compared with that of other advanced democracies. We need to be careful, however, about exaggeration here. The Justice Department’s Bureau of Justice Statistics reports that one in five hundred family members over the age of twelve is the victim of family violence every year, typically assault. That bureau further reports a substantial decline in domestic violence during the 1990s.7 Even if that statistic is an underestimation, and most family violence goes unreported, I think Gilreath exaggerates.

    We also need to be careful about attributing too much, or the wrong sort of, responsibility to the institution of marriage specifically. So consider that Professor Gilreath says more than once that “the state-sanctioned home is the most violent place for women in society.” By “state-sanctioned home” I assume this means the homes of married couples, since marriage is the subject of my book and our symposium. Prof. Gilreath seems to say that civil marriage underwrites gender hierarchy and oppression.

    Yet many couples get romantically involved and live together without being married. Indeed, cohabitation is now, in scientific jargon, “the modal form of first coresidential union.”8 So a natural question is: how do rates of violence compare across the households of married and unmarried cohabiting couples? What contribution does marriage itself seem to make?

    This question is important because, as I would imagine most of us know, living in a household with others is both deeply rewarding and extremely challenging. I loved my family, but when I finally left for college I felt as though I had been let out of prison. Seriously. I love my partner of nearly thirty years, but “domestic bliss” is not without its storm clouds, storms, and, in general, challenges.

    The best studies that I have seen suggest that rates of violence are lower in marital than cohabiting households. Some studies suggest they are much lower. Insofar as these studies are correct, however, does marriage itself do the work of pacification? An excellent survey and analysis of the evidence by Kenney and McLanahan cautions against a hasty response. There is obvious room here for a selection effect: couples who get along better are probably more likely to get married and stay married. So marriage may simply select for relatively low conflict pairings. Among cohabiting couples in particular, the better adjusted are more likely over time to select out of cohabitation and into marriage.

    That is not the only possible effect however: marriage may make separation (involving divorce) harder, tending to keep some violently conflictual spouses together longer than if they merely cohabited.9 A possibility, therefore, is that marriage tends to be associated with lower rates of violence early on, but higher rates later.

    Overall, Kenney and McClanahan argue that the evidence suggests that marriage tends to select for couples less likely to resort to violence. However, they add that different rates of violence between married and cohabiting couples may also be partly attributable to the “social supports and institutional characteristics” of marriage.10 I join in what seems to be the dominant scholarly view that marriage itself does make a positive contribution: in part by organizing and clarifying widely shared norms and expectations (more on this below).

    The larger point is this: living with another person, building a life together with another person, and perhaps raising children with that other person, can be both extremely rewarding and very challenging. There are many opportunities and occasions for disagreement and even conflict whether or not they are married. We should be leery of attributing the sources of domestic violence to marriage specifically, especially insofar as marriage is associated (for whatever reason) with lower rates of domestic violence than cohabitation.

    The upshot is that while Professor Gilreath’s critique of sexual violence and enduring gender inequality is extremely important and altogether appropriate in this context—and I now agree that I should have said more about these matters—the specific connections with marriage are not as simple as Professor Gilreath’s remarks may suggest.

    Indeed, it is worth remembering that marriage has become much more robust among those relatively highly educated couples whose relationships tend to be the most egalitarian, and in which women would seem to be most empowered. Where both spouses have a college degree, they now tend to marry later—in their late twenties—after both spouses have started their careers. Marriage is weakest among those more working-class, less educated Americans who also tend to have more traditional expectations of husband as breadwinner: they have relatively high rates of cohabitation, relationship instability, and single parenting. When they do marry, it is often at a younger age.11

    It is certainly true that, as Professor Gilreath points out, gender differences between husbands and wives persist, and are also reflected, to some degree in “many, if not most, homosexual marriages.” Things have gotten better at the top: among heterosexual married couples, fathers “with college degrees now spend twice as much time with their children as the least-educated fathers,” and they spend more time than they used to on helping with domestic chores, such as cooking and washing dishes.12 But husbands and fathers still do far less of the domestic labor than wives and mothers, including working wives and mothers. Should we conclude that any and all gender differences are a sign of injustice or social pathology?

    Susan Okin famously argued, in her very influential Justice, Gender, and the Family, that gender differences needed to be transcended and eliminated in the name of justice: “A just future would be one without gender. In its social structures and practices, one’s sex would have no more relevance than one’s eye color or the length of one’s toes.”13 This seems to imply that in a just society, sex would be no more significant than eye color in predicting the division of housework, paid work, care work, and leadership in business and government. Only in that way could we eliminate the gender-based vulnerabilities to dependency and inequality that come with the traditional marital division of labor. Interestingly, Okin noted along the way that the class of families that seemed to come closest to her ideal of equal sharing of work inside and outside the home were lesbian households in which, her evidence suggested, there was an equal sharing of housework, domestic care giving, and paid work.

    It would go too far, I believe, to say that justice requires that gender should have no predictive value whatsoever with respect to explaining, for example, career patterns. Under conditions of perfect freedom, men and women may choose somewhat differently. On the other hand, we have much work to do to insure that the structure of workplaces and the expectations associated with careers facilitate women’s participation in careers of all sorts, and men’s participation in the joys of parenting and housework. We have no reason to think that sexist stereotypes have been eliminated from our society; ample evidence suggests otherwise. Moreover, the vulnerabilities that Okin pointed to are real and enduring.

    Public policy must affirmatively seek to secure fair equality of opportunity for women and men: that is, a genuinely, substantively, and not only formally equal chance to pursue a wide range of public careers. Given the persistence of differential gendered expectations, that means making special efforts to recruit women to fields in which they are underrepresented, and to insure that job requirements and expectations do not unfairly or unnecessarily discourage women.

    These issues are worth more attention than I can give them here. Gender differences are always importantly socially constructed, but they may not be entirely a matter of social construction. What we make of any gender-based differences is up to us, and ample experience and evidence suggest that greater gender fairness is a requirement of justice, and also a prescription for more satisfying lives. But I doubt that justice or the human good are best served by the erasure of gender differences.


    1. I say that in the context of a discussion of proposals to eliminate civil marriage in favor of a “privatized” contract model, such as is proposed by Richard H. Thaler and Cass R. Sunstein; see “Privatizing Marriage,” in Nudge: Improving Decisions about Health, Wealth, and Happiness (New York: Penguin, 2009), 217–30. With others, I worry that contract models, insofar as they invite bargaining, can disadvantage the more vulnerable, weaker, or less calculating party; see Just Married, 118–23, 126–31.

    2. Latta v. Otter, quoting Blackstone, FBMM, 271–72.

    3. I here quote Latta v. Otter, 771 F. 3d 456 (Court of Appeals, 9th Circuit 2014), concurring opinion of Judge Berzon, at 487.

    4. I here quote Latta v. Otter, 771 F. 3d 456 (Court of Appeals, 9th Circuit 2014), concurring opinion of Judge Berzon, at 487.

    5. See Just Married, 63–64.

    6. “Even now, some states still have some form of spousal rape exemptions, and it is often legally considered a different, lesser crime than non-spousal rape,” National Coalition Against Domestic Violence, .

    7. US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Family Violence Statistics: Including Statistics on Strangers and Acquaintances (Washington, DC: June 2005, NCJ 207846), https://www.bjs.gov/content/pub/pdf/fvs03.pdf.

    8. Catherine T. Kenney and Sara S. McLanahan, “Why Are Cohabiting Relationships More Violent than Marriages?,” Demography 43.1 (2006) 127.

    9. Ibid.

    10. Ibid., 137.

    11. See Just Married, 109–15, for a discussion and summary of evidence.

    12. Robert D. Putnam, Our Kids: The American Dream in Crisis (New York: Simon & Schuster, 2015); and Just Married, 114.

    13. Susan M. Okin, Justice, Gender, and the Family (New York: Basic, 1989), 171.

Tamara Metz

Response

Commentary on Just Married

The real importance Stephen Macedo’s Just Married is that it directly takes up the case for the establishment of marriage. And as Macedo recognizes, this requires an explanation not just of what marriage is and why it is valuable but also why the liberal state—on liberal political principles—ought to be actively engaged in recognizing, regulating, producing, controlling, and defining marriage as a legal category. What Macedo offers is a conservative defense of a particular variety of state-sanctioned marriage in the United States—one of the most compelling I’ve read. While I remain unconvinced, Macedo’s contribution here is significant. In the two decades during which the same-sex marriage wars were waged few scholars, jurists, or activists took up the case for the establishment of marriage as directly and successfully.

The structure of Macedo’s book—part 1, “Why Same Sex Marriage?” part 2, “Why Marriage?” and part 3, “Why Two? Monogamy, Polygamy and Democracy”—nicely sums up public debate and reflects a certain line of logic internal to the whole issue. These are questions with which citizens are concerned. And they produce themselves: we may be convinced that, as long as marriage is established, it should be available to same-sex couples, but should it be established? And if so, then how—in a diverse liberal polity—can we justify same-sex marriage but not polygamous marriage?

The case for same-sex marriage is an argument from equality. In all respects relevant to the liberal state, same-sex couples are the same as opposite-sex couples. They join in long-term, mutually dependent units of intimate care and affection. They benefit from and desire public recognition of their unions. They should be treated equally. This is a deeply compelling and familiar argument. While others have been making this case for over two decades, Macedo adds the rigor and scope of a political philosopher. We get nuanced, generous engagement with the most serious conservative voices of the last decades and a political philosopher’s care with key court decisions. This is valuable work in its own right.

The more fundamental question, as Macedo himself makes clear, is whether there are good liberal reasons for state control, use, and support of monogamous marriage as a legal status. Macedo’s defense of the establishment of marriage relies on the claim that marriage is special enough that it could not be replaced by something like a registered domestic partnership or RDP (i.e., the legal status that gave same-sex couples everything but the label “married”), but not so special as to provoke a reasonable version of liberal neutrality. Civil marriage is special, he posits, because it combines the force of law with powers of a rich, varied and changing social institution. Uniquely, he thinks, this combination supports the kind of commitment and recognition that real humans need without pulling the state into a role that oversteps the limits demanded by political liberalism.

I disagree. The specialness itself is what takes marriage beyond the proper reach of the liberal state. The crux of the issue here: what precisely makes marriage so special? Macedo points to commonsense views about the institution. “We” think of marriage as a “singular institution that shapes and limits people’s deepest aspirations and the most intimate aspects of their lives” (87). The thought seems to be that it is possible to speak of a shared conception of marriage that is thick enough to distinguish it from an RDP but thin enough to fit into the traditional purview of the liberal state. When the state recognizes and regulates the institution, it is simply reinforcing this widely held set of demands. But the furor surrounding same-sex marriage debates and the raw diversity of how we live our intimate lives suggest otherwise.

The “special something” about marriage which differentiates it from “everything but the name” RDPs (or a driver’s license from a bar mitzvah or public health laws from baptism) is the ethical recognition that it demands from the recognizing authority, in our case, the state.1 In the traditions that have dominated the United States for the last two centuries, marriage as an institution demands the ethical, and not merely the political, legal or instrumental approval of the recognizing community. This demand for ethical recognition is what makes marriage different from RDP. It is this that opponents to and proponents of same-sex marriage are fighting over.

Macedo claims that the main argument against the establishment of marriage is one of fairness and neutrality, as in: does fairness permit the state to deal in this “special” relationship status? One argument against state involvement on these grounds is that marriage privileges some conceptions of the good life over others and therefore violates the liberal commitment to state neutrality. Macedo convincingly shows that this argument has its limits. The state cannot and should not try to be neutral in some total sense. The extreme libertarian neutrality argument is nonsensical.

But this is hardly the best argument against the establishment of marriage. The stronger argument is precisely about the proper role of the liberal state: should it function as an ethical authority or a political authority? For very good reasons, liberals hold that it should be limited to the latter. The powerful idea behind the limited state is that freedom consists, to some important degree at least, in citizens being ruled by political authority, one with political aims and political tools, which refrains from making ultimate ethical judgments. The “something extra” of civil marriage, the quality that distinguishes it from RDP, is tied to asking much more from its regulating authority than what the liberal state can or should try to give. Macedo’s defense of state control and use of marriage ignores these reasons.

In any case, much of Macedo’s defense of the establishment of marriage rests on claims about the material and social benefits of marriage. Here it is important to note that we must understand and evaluate his argument—the most sophisticated of its very popular kind—as part of a wider phenomenon in which marriage is cast as the privileged site of affective ties that insure the provision of essential care. Whatever the virtues of arguments from equality for marriage-loving same-sex couples, and there are many, the vices of casting marriage as a solution to the realities of a politics and economy that deny utter vulnerability and unavoidable interdependence are grave. This ideological move threatens many of the values at the core of Macedo’s liberal position. His case for same-sex marriage, which derives its strength from a case for the establishment of marriage itself, is part of a trend that begins—ironically perhaps, but certainly not coincidentally—precisely as the hold of marriage appears to wane. In the 1970s, as divorce rates begin to rise to their current more-or-less constant levels, a growing chorus of voices on the right and left point to marriage as the solution to the ravages of simultaneously emerging neoliberal political and economic forces. The call crescendos in the same-sex marriage wars in which Macedo participates.

Key to Macedo’s defense of the establishment of marriage are claims of what it does for care. Like no other institution, he claims, marriage secures a uniquely valuable kind of commitment and recognition while also providing unique benefits to children and to the reduction of poverty. In this he follows and draws on a myriad of social scientific studies that attempt to show that marriage causes innumerable positive outcomes.2 Three problems plague most, if not all, of these studies. First, many claim to identify cause—as in “marriage causes X”—but in fact, they show only correlation. As with all quantitative social scientific studies which cannot control for confounding variables or show the directionality of causation the force of the causal argument rests on the persuasiveness of the theory.3 Which gets us to the second problem. The theory is that “marriage” causes certain outcomes. But which aspects of marriage actually do the work? Even setting aside the problem of endogeneity, pinning down just what is being measured and what is causing the purported outcomes is very hard. Is it the legal or the social recognition that comes with the legal status? Is it the material benefits? Is it the intimate commitment between two people? And third, let’s say we could identify with real confidence the variables causing the desired outcomes for people who marry, the question fails to consider the negative consequences of using marriage to cause these outcomes. In short, the empirical evidence that marriage causes desired social outcomes is less conclusive than appears at first glance.

At the same time, there are good reasons—theories—to think that establishment is bad for marriage itself, for individuals within and without the institution and for society as a whole. The first hypothesis, made vivid with a parallel to religion, is that state involvement hurts marriage by weakening the ethical force of the controlling authority.4 At best, the liberal state can function as a quasi-ethical authority, a paltry alternative to religious or other genuinely ethical communities. Thus, when the state serves as the controlling authority of marriage, marriage—which depends on ethical recognition—suffers. This fact might be to blame for what some see as the sorry state of marriage in the United States. The more we treat the state as the authority of significance in marriage, the weaker the ethical force of the institution.5

A second reason to be wary of claims that marriage necessarily helps society as a whole is that children and caregivers in nonmarital units suffer in a world where marriage is the privileged means through which the state provides recognition and support for families. Marriage-centered policy excludes and disadvantages those intimate caregiving units that fall outside the marital veil.6

More broadly, marriage-centric social welfare policy is bad for everyone in ways that Macedo fails to consider. In both ideological and material terms, the dominance of the ideal of the private, marital family as the privileged site of intimate care threatens the provision and just distribution of care. In the context of the neoliberal politics in the United States in the last forty years, marriage has emerged as an accomplice to a politics that denies the social and material conditions upon which political life (of any sort) depends.

Ideologically, neoliberalism needs three things, all of which marriage has provided. First, it needs a story about why anyone would assume responsibility for care—voluntarily. Second, it needs a way to reinforce the private responsibility for care (even as many of those who used to be responsible for unpaid care are forced by economic shifts to participate in the paid labor force). And third, it needs even more than before to obscure the costs of care. Now that everyone except the 1 percent has to work in the paid labor force, the dilemma presented by necessary, costly but “unproductive” and largely un(der)-paid labor is even more serious than before. As “women move into the paid labor force”—which is to say, white middle- and upper-class women—the necessity of a second shift spreads. Best to hide the cost of burdens of that shift. What better way to do so than to bolster the sentimental, responsibilized family via marriage?

For neoliberal politics, marriage solves closely related sentiment and responsibility problems. In a context that prioritizes markets and market-reason, where human interdependence, inevitable and derivative vulnerability and the necessity of care is undervalued at best and denied at worst, is not clear why anyone would engage in the costly and risky work of intimate care (or, social reproductive labor [SRL] more broadly). In other words, why would the freely choosing, genderless, self-improving individual entrepreneurial neoliberal subject ever choose to engage in the unpaid labor associated with care? But, of course, even neoliberals are dependent. No amount of ideology can undo the fact that humans need care. What is a neoliberal to do?

As a voluntary institution and fundamental right marriage fits easily within the culture of hyper-individualism. What it brings that a registered domestic partnership cannot, however, is the powerful cultural tropes of sacred, sentimental, and essential. Or so it is depicted in the latest public debates. Marriage of this variety provides a story that motivates people to assume—private and voluntary—responsibility for the essential and costly labor of care. What better way to keep the reality of care off the public ledger than with traditions of gendered, privatized and sentimentalized family captured and perpetuated by marriage? Marriage ties the responsibility for the provision of intimate care to a hyper-sentimentalized (e.g., amorous and quasi-religious) and socially conservative (amatonormative, sexually-, economically-, and socially-contained) unit of “one’s own.”7

Macedo highlights what he calls the conservative—but what one might be tempted to call the reactionary—character of his argument. “I take up the conservative side of the argument, finally, because I share many of their concerns . . . this is a book addressed to them. Conservatives are right that not all effects of the sexual revolution that culminated in the late 1960s and 1970s have been good. Greater equality for women and greater acceptance and freedom for sexual minorities are among the era’s most positive legacies. But there have also been negative consequences for many children of a weaker family structure, lower level of marital stability and commitment, and highly sexualized public environment” (21).

He casts these negative trends as the effects of the “sexual revolution”—tying material problems to cultural shifts and thus tying the solution to (state-powered) cultural changes—bolstering of the “singular institution” of marriage. Leaving aside the rather sparse support he offers for these claims, this trope is an old one that ignores the broader economic and political realities in which these changes took place. Any revolution in sexual mores was accompanied, and indeed, arguably driven, by massive shifts in the structure of the economy and political life of the United States and the world at large. To focus on culture and marriage so narrowly threatens to obscure both the real causes and any possible solutions to the problems of deficits of care and democracy.8

This neoliberal hijacking of marriage is most starkly evident in the logic of Obergefell v. Hodges,9 the case that made same-sex marriage legal throughout the United States. The decision was widely—and rightly—celebrated as a victory for civil rights. But for all of its virtues, this triumph of justice is part and parcel of a politics of care that threatens the very values the decision purports to uphold. Read in the context of the shift in the United States over the last half-century from liberal democratic to neoliberal politics, the case and its vision of marriage—merely the latest example of the vision that has gained wide public prominence in this period—emerge as accomplices of a politics that denies the social and material conditions upon which political life (of any sort) depends. Marriage, here, is an ideological foil that helps responsiblize “individuals, . . . and their families,”10 part and parcel of political economic trends that radically privatize the risks and costs of intimate care, and produce a sexually-contained, socially-constrained, finitely-obligated subject so useful to a politics of the market.

Among the most cited quotes of the decision are Justice Kennedy’s soaring descriptions of marriage: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” Simultaneously transcendent and essential, sacred and civil, spiritual and material, marriage here is a choice that no rational, no natural human would refuse. “The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Obergefell offers a picture of marriage that is at once hyper-romantic—or sentimentalized or sacralized—and a free and private choice and the site of responsible intimate care. A perfect helpmeet to a politics that responsibilizes freedom, says that you are free to take care of yourself or, crucially, as Joan Tronto puts it, “care for one’s own.”11 On this, it bears reminding that many, including those inside the movement, made the case that same-sex marriage would be good for business. Not at all surprisingly, some of the earliest converts to the cause of same-sex marriage were business people and defenders of neoliberal politics such as Judge Richard Posner in Baskin v. Bogan.12

Same-sex marriage fits the mood of our moment.13 Marriage provides the language and means to promote an ethic of personal responsibility to care for one’s own. This valorization of marriage fits into what Jacob Hacker calls “the Personal Responsibility Crusade” that is instrumental in effecting “the great risk shift,” neoliberal policies that shift the costs and risks of health care, childcare, education and retirement onto individuals and families.14 No longer central concerns of democratic politics, these concerns become instead private, marital-family matters. In this context, “marriage”—with its soaring romance, its “sacred” character, its privateness, its choice-ness, its apple pie traditionality—helps align citizens’ expectations with the state’s disinvestment from social welfare. The cunning of this history is that this battle in the larger struggle for gay and lesbian civil rights advances a rationality that conflicts in significant ways with our commitments to real freedom and equality for all.

Macedo’s case for marriage is part of the chorus of voices on the right and left that point to marriage as the solution to the inevitable human need for care and the ravages of neoliberal political and economic forces. But his position downplays the immediate and long-term, material and ideological impacts of a public account of how our most basic needs are met that excludes many, implicitly valorizes some, and crucially obscures the nested, interconnected realities of dependence and vulnerability. Beyond doubts about the empirical claims upon which he rests this case, Macedo’s focus on marriage and culture is part of a larger trend in understanding the sources of and solutions to the challenges of contemporary political and economic life. Legal recognition of same-sex marriage was an essential step toward civil justice in this country. But it participates in and bolsters a regime that threatens real freedom and equality for all.

Yes, in important ways, “marriage” matters. After all, if it didn’t, the battles wouldn’t have been so heated. The label matters because it elicits wells of (very diverse) cultural meanings and ethical authority. Which is to say, it matters in precisely the way we can and should leave out of the grip of the state in a deeply diverse society committed to liberal democratic values. What marriage brings, this demos doesn’t need from the state. From the state, what citizens need—evinced by the effects of the great economic and political shifts that started in the 1960s and ’70s—is concrete support for caregiving in its myriad forms—not marriage.


  1. See Metz, Untying the Knot (Princeton University Press, 2010).

  2. He begins by citing William Galston—“‘a mountain of evidence’ supports marriage’s contributions to individual well-being” (109)—but Galston relies on the same sort of research that Macedo points to, so his imprimatur adds little. Other more direct sources upon which Macedo relies and to which my criticism apply include Linda Waite and Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier and Better Off Financially (New York: Broadway, 2000); Institute for American Values, Why Marriage Matters: Thirty Conclusions for the Social Sciences, 3rd ed. (New York: Institute for American Values, 2011). Notably these sources are tied closely to explicitly political organizations. Although Linda Waite is a traditional nonpartisan scholar, her coauthor Maggie Gallagher is a longtime conservative—and anti-same-sex marriage—advocate.

  3. See David M. Diez et al., Introductory Statistics with Randomization and Simulation (OpenIntro, 2014), 13.

  4. See literature drawing on Alexis de Tocqueville’s argument in Democracy in America to the effect that religion flourishes in the US precisely because there is no state church. For example, D. H. Leon, “The Dogma of the Sovereignty of the People: Alexis de Tocqueville’s Religion in America,” Journal of Church and State 14.2 (1976) 279–95.

  5. On this count, it is important to note that the implementation of no fault divorce laws was a response to, not a cause of, changing behaviors in marital life. Family law professionals pushed for the change as they witnessed increasing numbers of couples perjuring themselves to get the divorces they both wanted but were forbidden to obtain without establishing fault. See Sugarman and Hill Kay, eds., Divorce Reform at the Crossroads (Yale, 1990), and Weitzman, The Divorce Revolution (Free Press, 1985).

  6. In addition to my work, see, e.g., Martha Fineman, The Autonomy Myth (New York: New Press, 2004); Claudia Card, “Against Marriage and Motherhood,” Hypatia 11.3 (1996) 1–23; Elizabeth Brake, Minimizing Marriage: Marriage, Morality, and the Law (New York: Oxford University Press, 2012).

  7. Tronto, Caring Democracy, ch. 3.

  8. Joan Tronto, Caring Democracy: Markets, Equality and Justice (NYU Press, 2013).

  9. Obergefell v. Hodges, 576 US (2015).

  10. Wendy Brown, Undoing the Demos (Vintage Press, 2015), 100; citing Margaret Thatcher.

  11. Ibid.

  12. Baskin v. Bogan, 766 F.3d 648, (7th Cir. 2014), cited in Katherine Franke, Wedlocked: The Perils of Marriage Equality (NYU Press, 2015), 186.

  13. Contemporary romanticizations of marriage cannot be reduced to a conservative defense of traditional institutions and virtue, though they certainly complement neoconservative politics.

  14. Jacob Hacker, The Great Risk Shift (Oxford University Press, 2008), especially ch. 2.

  • Stephen Macedo

    Stephen Macedo

    Reply

    Response to Tamara Metz

    Tamara Metz’s characterization of my argument is generally fair, and even generous. She nevertheless offers a pointed critique of my position. I appreciate her contribution, and even acknowledge that she might be right. Yet, I am not generally convinced and will explain why.

    Professor Metz’s argument has two parts. The first part holds that marriage’s special status in civil law transgresses or outruns the limited authority of the liberal state. Metz makes several related points. Recognition and support for marriage sets the state up as an “ethical authority,” which it is not. It would be better for the state to recognize and support “registered domestic partnerships” with the same or similar tangible benefits of marriage but which might be taken up by a wider range of people. In addition, the benefits that are held to flow from marriage may not be “caused” by marriage itself, but by the tangible benefits that are tied to marital status, or they may result from other factors. Further, state recognition weakens marriage in the same way that state “establishments” weaken religion.

    The second prong of Metz’s argument begins with observations similar to those just stated: “Marriage-centered policy excludes and disadvantages those intimate caregiving units that fall outside the marital veil.” State recognition of marriage, “as a privileged site of affective ties that insure the provision of essential care,” comes at the expense of the many who are left out. In particular, pro-marriage positions such as mine, and Justice Kennedy’s in Obergefell, are “accomplices” of neoliberal, free market economic policies that seek to diminish public responsibilities. Metz puts this point very sharply:

    “Marriage”—with its soaring romance, its “sacred” character, its privateness, its choice-ness, it’s apple pie traditionality—helps align citizens’ expectations with the state’s disinvestment from social welfare. The cunning of this history is that this battle in the larger struggle for gay and lesbian civil rights advances a rationality that conflicts in significant ways with our commitments to real freedom and equality for all.

    Macedo’s case for marriage . . . downplays the immediate and long-term, material and ideological impacts of a public account of how our most basic needs are met that excludes many, implicitly valorizes some, and crucially obscures the nested, interconnected realities of dependence and vulnerability.

    Metz’s criticisms are wide-ranging and serious and in some ways similar to those of other important progressive scholars, including Martha Fineman, Elizabeth Brake, and, most recently, Clare Chambers.1 But is she right?

    Let’s begin with Professor Metz’s first point: that the state lacks the authority to be in the business of recognizing marriage and has no good reason to do so.

    Does the state set itself up illegitimately as an ethical authority by recognizing marriage? Many liberals have held that the state has a duty to be ethically neutral among the various reasonable conceptions of good life that different citizens espouse. The state belongs equally to all of us and, in the face of this ethical diversity, the variety of conceptions of the good life, it ought not to take sides for some of those conceptions and against others.

    One aspect of the charge relates to the symbolic status of marriage. Some have argued that the “special status” of marriage is a kind of state-sponsored honorific that bestows a special endorsement on the married way of life.

    But, as I explain in the book, state recognition is not for the sake of providing an honorific endorsement, rather, it facilitates the availability of a distinct option that very many couples wish to enter into. In marriage, two people commit to building a life in common together. They wish to commit not merely to one another, but in front of family, friends, and in the eyes of the community as a whole. Legal recognition facilitates their ability to enter into a socially legible commitment that is understood by everyone in the community, and not simply by their family and friends, their church group, and country club.2 Social recognition strengthens and supports their bonds, partly by helping to sustain the shared understandings and expectations that society has for married couples.

    So, as I explain in the book, legal recognition of the symbolic aspect of marriage can be understood as having a practical rather than an honorific role. We need not understand the state as saying: “This is the best way of life, superior to all others.” We can understand the state as saying: “Here is a valuable option and one whose availability is underwritten by legal recognition.” Therefore, we need not understand state recognition of marriage as resting on “ultimate ethical judgments” of the sort Metz worries about. Marriage’s architectonic role in shaping our lives makes it, in obvious respects, a special institution. But this “specialness” does not in any obvious way run afoul of the strictures of political liberalism. I will say more about fairness to the unmarried below.

    Professor Metz further expresses skepticism that marriage itself causes the good outcomes that scholars associate with marriage. She asks: “Is it the legal or the social recognition that comes with the legal status? Is it the material benefits? Is it the intimate commitment between two people?” She is right that “it is not easy to isolate the effects of a complex institution such as marriage.” It is impossible to do randomized and controlled experiments in this realm. I made a similar point above in response to Gilreath. Nevertheless, so far as I can tell, most scholars who do careful empirical work on these matters, fully aware of the difficulties involved in causal inference, do attribute causal importance to marriage itself.3 While political theorists such as Metz and myself are not going to settle that issue, she is right to raise it and I agree with her that it deserves more attention.

    Moving along with respect to her first bundle of issues, Professor Metz hypothesizes that state recognition may weaken marriage in the way that state establishments of religion are (plausibly) thought to weaken religion. Admittedly, there is no real evidence for this hypothesis, but others have also suggested it and it seems to strike some (or many) as plausible.

    However, the analogy between state establishments of religion and state recognition of marriage, while oft heard, seems to me quite weak.

    State attempts to establish a particular religion, after the Reformation, have been attended by massive cruelty and conflict. Have there been disputes of remotely parallel intensity concerning marriage in the West in recent centuries? Not really. Mormon polygamy was certainly greatly feared and vehemently, often violently, opposed. Joseph Smith was killed by a mob while awaiting trial, and the Mormons, hounded out of Illinois and elsewhere, fled to Utah. I certainly disapprove of this persecution and the violence that often accompanied it. But fear of the Latter Day Saints concerned more than polygamy. Mormon governance has been described by scholars as “theocratic authoritarianism.”4

    As I explain in Just Married, there are good reasons for public moral concern about polygamy.5 The widespread historical movement away from polygamy and toward monogamy has proceeded hand-in-hand with greater equality for women and greater equality among men. Monogamy can and should be understood as an attempt to secure not a sectarian conception of the good life but spousal equality in marriage and fair opportunity to pursue the great good of family life. These are basic civic, not sectarian, values.

    The push for same-sex marriage equality is best understood once again as part of the movement toward equal citizenship for gay and lesbian people, and not state support for a particular conception of the good life.

    So, it seems to me wrong to argue that the marriage-recognizing state presumes illegitimate ethical authority. State support for marriage facilitates the availability of a widely valued and valuable option. A sufficient justification for state underwriting is that the law of marriage makes marital commitment legible, and it allows those who wish it the option of entering into a mutual commitment as a matter of common knowledge, across the whole society.6 I do not think we need to understand this as a state assumption of inappropriate ethical authority, and I would join with Metz in rejecting inappropriate forms of legal privileging and rhetorical valorization of marriage. State support for monogamy rests on justice—securing equal freedom and fair opportunity—and other public values, not ethical ideals.

    In some ways, state recognition and support of marriage is less like state establishment of a particular religion than it is like state recognition and support for the use of automobiles. Marriage is an extremely flexible institution. As Mary Ann Case observes, spouses need not live together, have children, love each other, practice marital fidelity, and so on.7 These and other common features of marriage are often expected, to be sure, but none is legally required. Exit is common if not costless, and the terms of particular marriages can be personalized via pre- and postnuptial agreements. Couples can and do live their lives in an enormous variety of ways. I defend marriage as the commitment of two people to build a life in common together, but the terms of that common life are up to them. That is another way in which it is wrong to say that the state must rely on “ultimate ethical judgments” when supporting marriage.

    Metz’s concerns about marriage and moralism are important, and I return to them below, clarifying what I mean by monogamy. As we will see, while Metz thinks my account of marriage is too ethically perfectionist, and Professor Amy Wax thinks it evinces sexual amoralism, like Goldilocks, I continue to think it is “just right.”

    Let me turn next to Professor Metz’s second bundle of claims: that support for marriage can be an accomplice to “neoliberal” efforts to expand the reach of the market, privatize responsibilities for care, and to defund the welfare state. “What better way to keep the reality of care off the public ledger than with traditions of gendered, privatized and sentimentalized family captured and perpetuated by marriage?”

    I fully agree with Metz, Brake, and others that adequate public recognition and support for caregiving in general is a requirement of basic justice. Marriage might matter less in a “more just social context,” as I say in the book, where I also observe that if I had to choose between public recognition of marriage and having a Danish welfare state, I would choose the Danish welfare state.8 But that is not the choice. The United States—an extremely large and diverse immigrant society—differs from Scandinavian countries in a wide variety of ways.

    Metz says that “children and caregivers in nonmarital units suffer in a world where marriage is the privileged means through which the state provides recognition and support for families. Marriage-centered policy excludes and disadvantages those intimate caregiving units that fall outside the marriage veil.” There are different ways to interpret these claims. Metz might be supposed to be arguing that, were it not for marriage, public support for universal caregiving would increase significantly. That hypothesis strikes me as implausible. Getting rid of civil marriage would accomplish nothing except the end of legal recognition for marriage. This might lessen universal concern and further weaken support for other forms of social provision. Certainly, if the Democratic Party were to embrace this position then Democratic candidates would be pilloried by Republicans. Support for civil marriage is high across the American political spectrum and there seems little support for efforts to radically transform or eliminate marriage outside a few precincts of the academy.

    As things stand, moreover, families and children generally seem to benefit from other people’s marriages. Evidence provided by the economist Raj Chetty, political scientist Robert Putnam, and others suggests that the important predictor of upward mobility and other forms of success may have less to do with whether your parents are married but whether you live in a community in which most of the parents are married.9

    Metz misstates my position when she says that “Macedo’s case for marriage is part of the chorus of voices on the right and left that point to marriage as the solution to the inevitable human need for care.” I say just the opposite of that in the book: “Marriage is distinctive and, for those entering into it under favorable circumstances, very often successful, but it should not be the exclusive focus of out attention when it comes to parenting and caregiving. . . . We should build on the success of marriage.”10

    I think that Metz and I actually agree on what strikes me as the most fundamental point here: which is that, whatever the benefits of marriage, it is not by any stretch a fully adequate response to the human need for care. While I join pro-marriage feminists such as Linda McClain, I also agree with Metz and (again) McClain in allowing that the rhetorical valorization of marriage can and does also furnish some with a rationale for denying adequate public support to all parents and children, regardless of marital status. So I sympathize with Metz’s concerns, but I am extremely doubtful that path to more adequate support for social welfare in the United States runs through marriage abolition. Support for non-marital forms of caring and care-giving should simply be defended for their own sakes alongside of marriage.


    1. See Martha Albertson Fineman, “Why Marriage?,” Virginia Journal of Social Policy and the Law 9.1 (2001); and The Autonomy Myth: A Theory of Dependency (New Press, 2004); Elizabeth Brake, Minimizing Marriage: Marriage, Morality, and the Law (Oxford University Press, 2012); Clare Chambers, Against Marriage: An Egalitarian Defense of the Marriage-Free State (Oxford University Press, 2017).

    2. See Just Married, ch. 4, where I draw on important work by Ralph Wedgwood, Robert Goodin, Robin West, Eric Schwitzgebel, and others.

    3. In addition to the study by Kenney and McLanahan, discussed above, see Donna K. Ginther and Madeline Zavodny, who argue that no more than 10 percent of the average marriage premium is due to selection effects, “Is the Male Marriage Premium Due to Selection? The Effect of Shotgun Weddings on the Return to Marriage,” Journal of Population Economics 14.2 (2001) 313–28; see also Kate Antonovics and Robert Town, “Are All the Good Men Married? Uncovering the Sources of the Marital Wage Premium,” American Economic Review 94.2 (2004) 317–21, which looks at monozygotic twins to argue against selection effects and assert that “marriage causes men’s wages to rise” (320). These citations only scratch the surface.

    4. For a fuller discussion, see Just Married, 153–57.

    5. Ibid., chs. 7–9.

    6. See Ralph Wedgwood, “The Fundamental Argument for Same-Sex Marriage,” Journal of Political Philosophy 7.3 (1999) 225–42, the specific language here is mine not his.

    7. See Just Married, 117, and part 2 generally.

    8. See Just Married, 108.

    9. Raj Chetty, on NPR’s Freakonomics episode of January 18, 2017, “Is the American Dream Dead?”: “If we look at the subset of kids who grow up in a two-parent household, we see that for that subset of children, even for them, growing up in neighborhood with a lot of single parents is associated with lower levels of upward mobility. So it’s not literally about whether your own parents are married or not—again, it’s picking up some community-level factor where growing up in a place that has a lot of single parents—maybe there’s more family instability or it’s correlated with some third factor that is leading to higher rates of single parenthood. For whatever reason, that seems to be strongly associated with lower levels of upward mobility” (http://freakonomics.com/podcast/american-dream-really-dead/).

    10. Just Married, 133.

Patrick Lee

Response

Comments on Stephen Macedo’s Just Married

Macedo argues that fairness requires the law to recognize same-sex, but not polyamorous or polygamous, partnerships as marriages. I hold instead that fairness requires the law to recognize only male-female partnerships, because only such relationships can be conjugal—i.e., naturally oriented to procreation and fulfilled by having and rearing children together—thus enabling any children that come to have the love and care of both the man and the woman who gave them life. Further, it seems to me that only by recognizing conjugal—and only conjugal—relationships as marriage can the state with consistency refrain from recognizing polyamorous or polygamous relationships as marriages. In this short response, I will try to advance the discussion by defending these points and replying to Macedo’s criticism of arguments on marriage and the law given by the New Natural Law theorists (among whom I count myself).

Whatever one makes of the fact, we observe in the world instances of the following sort of community: a man and a woman committed to sharing their lives on all levels (bodily, emotionally, and spiritually), in the kind of union that would be fulfilled by their conceiving and rearing children together (though not reaching that fruition in every case). That there are such relationships—“traditional” marriage (formerly known simply as marriage)—is not in dispute. The significant questions are: whether they constitute a specifically distinct kind of community, and whether the political community’s treating them as specifically distinct is proper and just.

I think the answer to both questions is yes. Marriage, considered as a conjugal partnership, is a distinct type of community. Communities are distinguished by their common goods or purposes. The common good of marriage has two intertwined components, one being a natural extension of the other: the comprehensive sharing of lives and, in its fullness, the procreation and cooperative rearing of children. The first is not a mere means in relation to the second, but is intrinsically valuable. In other words, the comprehensive (biological, affective, rational-volitional) union of the spouses is good in itself. So even if a married couple find (or know) that they are unable to procreate, they are still married. But it is also intrinsically oriented to procreation, in that it is the kind of union that would naturally be fulfilled and extended by their conceiving and rearing children together.

As for the state, it has an interest in promoting (and regulating) this kind of community, not because of what it is in itself, but because of what it does. Although marriage is intrinsically valuable, the state’s interest in promoting and regulating it has primarily to do with its instrumental value. Marriage provides a uniquely apt haven for children when they come to be. Children need the love and care of their own fathers and mothers; and fathers as well as mothers have a responsibility to their children. Human beings are bodily as well as conscious beings, and so who a human person is, her personal identity, is partly constituted by her bodily connections, including especially to her own mother and father. This explains what is otherwise inexplicable—that a mother has the right to be sent home from the hospital with the child to whom she has given birth, and not simply one of the children, perhaps chosen at random, born during her stay. And so children have a natural (defeasible) right to that love and care. Hence it is proper for the state to promote the type of community that fulfills that natural right; doing so falls within the scope of the state’s proper authority. By contrast, endorsing sexual-romantic relationships as such is scarcely within that scope.

In chapter 2 Macedo criticizes the NNL view (which I sketched above). He claims that on the NNL view what distinguishes marriage from all other communities is coitus alone, and that this is absurd: “It seems very strange [Macedo says] to suppose that it is the nature of coitus or intercourse that explains marital norms such as twoness or monogamy” (43). This is a straw man. The NNL view is not that coitus by itself makes marriage distinct—if that were true, the very idea of “premarital sex” would be self-contradictory. It is rather that the comprehensive nature of the union—which includes its orientation to procreation—makes marriage specifically distinct.

Marital intercourse actualizes and embodies this multileveled union, and is part of, not a mere extrinsic sign of, the total marital union. And it specifies or shapes the other aspects of the union. These points are hardly peculiar to NNLT. They are reflected in the traditional tenet (for both secular and church law) that sexual intercourse consummates or completes marriage (and that only coitus can do so). These widespread insights seem incomprehensible to Macedo and others who imagine that marriage is only a form of sexual romantic companionship or domestic partnership (which might then exist among persons of the same sex or, albeit not in Macedo’s view, three or more persons). And yet if human persons are bodily beings, and if the union realized in sex has profound inherent meaning—which can best be explained by its connection to procreation—it is not at all difficult to see how becoming one in this way specifies and actualizes a distinctive type of personal union, the one historically known as marriage.

The irrelevance of biology for Macedo is evidenced also by his argument comparing the sexual acts of infertile couples to those of same-sex couples. He claims that what the sexual acts of infertile couples can accomplish is just the same as what the sexual acts of same-sex couples can accomplish. He argues that since neither infertile couples nor same-sex couples can reproduce, what they do in their sexual acts is the same. But the conclusion simply does not follow, and the argument ignores the biological reality. In sexual intercourse a man and a woman complete each other to become the single subject of a reproductive act, and thus actualize a real biological union—and this is true whether conditions extrinsic to their sexual conduct make conception possible or not. They fulfill the behavioral conditions of procreation—they mate—whether or not the nonbehavioral conditions of procreation happen to obtain. Thus, in their sexual act, an infertile couple become biologically one, and this union (assuming it expresses and actualizes their marital commitment and love) actualizes the multileveled union that is their marriage. That does not occur in a sodomitical act (whether of men, women, or man-woman couples): bodily contact, juxtaposition, or the insertion of one body part into another, does not effectuate biological union. It is not, nor does anybody confuse it with, mating.

Macedo claims that, while same-sex partners do not have the physical equipment (the biological complementarity), so that anyone could have children by doing what they can do in bed, the very same thing is true of sterile opposite-sex couples (45). But he has missed the point. Infertile married couples can do precisely what fertile couples can do, namely, perform the first part of the reproductive process (fulfill the behavioral conditions of procreation). And that, whether the act results in procreation or not, makes them biologically one, with all of the personal import that includes. Such a bodily union can be achieved only by a man and a woman (in coitus), and, if intended as an expression and embodiment of their sharing of lives, it actualizes that marital communion.

Macedo also argues that the purpose of sex in an infertile marriage can only be “for pleasure and to express their love or friendship, or some other shared goods that are available to them.” And he concludes: “It will be for precisely the same reasons that committed, loving same-sex couples have sex” (45). But this ignores what is distinctive of sex and what is distinctive of marriage. If the point could only be to have or bestow pleasure, or express love or friendship, then no account could be given of why sex has such a powerful, inherent significance, and why it is not appropriate for the majority of kinds of friendship and love. Why does sex express the spouses’ specific kind of love, their specifically marital union? What is it about sex that allows it to do that, if pleasure and affection in themselves are common to other kinds of friendship? What is distinctive of sex, and what makes it so powerfully significant, is precisely what make it sexual to begin with, namely, that in it, a man and a woman become bodily one—realizing the most thoroughgoing bodily union two people can bring about, and performing together the kind of act that disposes them to become mother and father together, and so the kind of act that tends to unite their lives together into the indefinite future.

Of course, Macedo also denies that marriage is intrinsically oriented to procreation. This cannot be marriage’s distinguishing mark, he says, because people can get and remain married without having children (quoting Justice Margaret Marshall from the Goodridge decision) (48–50).

This argument, however, falsely supposes that marriage can be intrinsically linked to procreation only instrumentally—i.e., as a mere means toward an end (precisely what defenders of the conjugal conception of marriage expressly deny). To make marriage a mere means would be demeaning both to the union of the spouses and to children (it would regard children as products rather than as worthwhile in themselves). Rather, as I’ve noted, the marital union of the spouses is both good in itself and intrinsically oriented to enlarging into family as its natural fruition. The union of the spouses can be seen as an intrinsically good part of an intrinsically good whole. So the fact that couples who cannot have children can still marry —since they can form the bodily, emotional and spiritual union of the kind that would be fulfilled by conceiving children—is no evidence against marriage being intrinsically connected to procreation.

In criticizing NNL proponents Macedo focuses on the fact that they also hold that contraception is objectively immoral. He claims that the NNL view of what marriage is must be mistaken since it is connected to that position. True, most NNL theorists (myself included) hold that contraception is morally wrong. But Macedo does not even bother to try to refute the arguments for that position—instead, he merely cites statistics to show that a majority of Americans disagree. To this move, the obvious answer is to ask what the polls would have shown about the idea of two men or two women being “married” only a few years ago and for most of human history. More to the point, he offers no argument for his claim that our position on what marriage is and the state’s interest in it depends on our position on contraception’s moral status. In fact, it does not: one can hold the former without holding the latter. In terms of the legal issue, this is a red herring. The legal issue concerns, first, whether traditional marriage is a distinct kind of community, and, second, whether the law should recognize its distinctness or deny it. These questions, however, do not logically depend on determining what are the moral criteria for sexual acts. Further premises are required for the conclusion that contraception is immoral.

Macedo says: “Natural law proponents have generated little sympathy in the wider community for their views on sexual morality generally and marriage specifically.” But how is this relevant? Again: “Americans would regard it as outrageous if our government set out to establish by legislation that contraception is generally immoral, inside and outside marriage” (56). Indeed, but no NNL theorist has advocated any such thing. A sentence later, Macedo continues: “It is in truth more outrageous to suggest that the law should seek to enforce the sectarian ethic of New Natural Law with respect to gay and lesbian Americans only” (56). The rhetorical strategy of trotting out the term “sectarian” in this context scarcely rises above the level of an appeal to the prejudices of secular liberal readers. The people whom Macedo is criticizing have a long-established record of providing public reasons for their positions and for criticizing competing views, including Macedo’s own view, by reference to public reasons: that is, reasons that one can understand, explore, and affirm without appeal to revelation. Nowhere does he show—or even attempt to show—that our arguments depend on premises knowable only through the Bible or church teaching. The ethic advanced by Macedo’s critics and those whom he is criticizing is no more “sectarian” than his own ethic or that of other secular liberals.

What is the state’s interest in marriage? Traditionally, it has been that this community connects mothers and fathers to each other and to whatever children they might produce, and so promoting marriage makes it more likely that children will have the most desirable forms of love and care—the love and care of their committed biological mothers and fathers, to which children have a natural right. Given that purpose, then the state’s providing marriage licenses to opposite-sex couples but not to same-sex couples is not unjust treatment—and indeed, as I show below, extending them to both groups will hinder that purpose. The two groups are not similarly situated in relation to a reasonable, indeed, compelling, purpose of the law. Since the purpose of marriage law has always been to favor the interests of children, the difference between unions naturally fulfilled by procreation, on the one hand, and other sexual-romantic relationships or forms of domestic partnership, on the other, is intelligibly related to the law’s legitimate purpose. Only opposite-sex couples can form the kind of relationship that serves the public interest that justifies the state’s promotion and regulation of marriage.

The “gay rights” agenda, however, has simply diverted marriage law to a new and different purpose. On the new regime—as Macedo’s discussion makes clear—the aim is to provide a status of respect and dignity to certain romantic relationships. But it is doubtful that that is a legitimate aim of the state, and in any case such a policy, desirable or not, is not a marriage system.

Promoting the relationship intrinsically oriented to procreation implies no position—one way or the other—on the morality or advisability of other types of relationship. (That is a matter to be argued independently of the question of what marriage actually is, and why the law should recognize and regulate it.) By contrast, with the new “marriage regime” the political community takes the official stand that there is no significant difference between conjugal relationships (formerly known simply as marriages), on the one hand, and same-sex partnerships, or other romantic relationships lacking any intrinsic link to procreation, on the other (and that any disagreement only stems from bigotry). This is why—as Macedo points out—proponents of same-sex marriage would not settle for civil unions: what is desired is precisely the status derived from the state’s endorsement of those sexual relationships and the affirmation that such relationship are the same in essence as the conjugal union of husband and wife. This fact runs counter to Macedo’s claim that the state should be neutral on issues of sexual morality.

Macedo quotes seventh circuit judge Richard Posner when he assures us that redefining marriage will not hinder its ability to promote the stable environment needed by children. But this claim ignores the fact that redefining marriage sets forth a new understanding of what marriage is. Marriage requires a lifelong and exclusive commitment precisely because of its comprehensive nature and orientation to procreation. The state’s denial that marriage has those features, in order to include same-sex partnerships as married, will weaken understanding of and commitment to marriage, with the result that children (and others) will suffer.

Moreover, the redefinition of marriage sets aside as irrelevant the distinction between men and women, and so is committed to the irrelevance of the distinction between mothers and fathers—two mothers or two fathers must be viewed as equivalent to a child’s biological mother and father. For the same reason, concrete biological connections must be viewed as insignificant. And so the traditional affirmation that a child has a right to the love and care of his own biological mother and father not only drops out, but is implicitly denied. The redefinition of marriage is not an extension of the same thing (marriage) to a new group of people, but a substitution of a different system, one that is antithetical to the historic goals of marriage policy.

And the coherence of this new system is questionable, despite Macedo’s efforts to wave away the challenge bearing down on him from supporters of, for example, polyamory. On what basis can the status of “marriage” be applied to couples but not to threesomes (already known as “throuples”), foursomes, and larger groups? Macedo argues that one can limit marriage to couples because plural marriages tend to lead to inequality within marriage and to inequality regarding available wives. But critics writing from Macedo’s left point out that this is merely a contingent historical fact about polygamy as practiced in circumstances in which women’s equality was not valued (and where same-sex partnerships were not regarded as legitimate). It is no more a reason for rejecting polygamy today than is the fact that patriarchy used to be a mark of marriages a reason for rejecting marriage itself today. Moreover, polygamy, and polyamory, can be entirely same-sex—removing any risk of inequality between men and women in the relationships. And even more to the point, polyamorous partnerships, with any combination of sexes, could be accepted even if, due to fear of gender inequality allegedly written into the DNA of polygamy because of its historical practice, polygamy were criminalized, or not recognized.

If the purpose of marriage law is what Macedo and other proponents of same-sex marriage claim it must be—namely, to confirm sexual-emotional commitments—then poly people seeking such confirmation and recognition are what they themselves insist that they are: similarly situated to couples (be they opposite- or same-sex) in relation to the law’s purpose. Moreover, if you want to marry, and you meet the requisite age and abilities relevant to forming the kind of relationship one defines as counting as “marriage,” then the fact that you belong to a group of people, many of whom have characteristics making the success of their marriages harder, is not fair ground for denying you a license to marry. The argument will reasonably be made—indeed, it is already being made by poly people and their advocates today—that appeals to stereotypes regarding them will not suffice as a ground for treating twosomes and threesomes unequally.

By contrast, if the purpose of marriage law is to encourage a procreative-type relationship, in order to provide an apt haven for children when they come to be, then only those who can form this kind of relationship qualify for marriage, and that includes only man-woman couples. The features of marriage that entail its exclusivity (that it be only a couple and not a group) are its comprehensiveness and its intrinsic orientation to the procreation and cooperative rearing of children. These features are biologically based, but—contrary to Macedo’s misinterpretation of our arguments—encompass much more than the sexual act (coitus) alone. Sam cannot at the same time be comprehensively united to both Mary and other women; and only the union of Sam and Mary would be naturally extended and fulfilled by their procreation and their cooperative rearing of their children.

  • Stephen Macedo

    Stephen Macedo

    Reply

    Response to Patrick Lee

    Now for a sharp right turn.

    Patrick Lee’s comment restates the theory of traditional marriage offered by scholars associated with the New Natural Law. He says that I misstate the view and he is probably right. His restatement here strikes me as accurate and clear, but unpersuasive. In saying this, I certainly do not mean to argue that “traditional marriage”—understood more broadly than Professor Lee does—is to be scorned. To the contrary, my book is a defense of monogamous marriage as a distinctive form of commitment: a way of promoting the good of spouses, children, and society, and a way of securing the social bases of freedom and equality for all. I allow that such marriages are the best setting in which to raise children, but also argue that the state should do more to support all parents and all children.

    Nor do I scorn Professor Lee’s account as an ideal of marriage: it strikes me as one way to think about the good of marriage and sexual life. And yet it seems to me deeply wanting as an account of the public institution of marriage. It offers far too narrow a view of the human good, and it excludes many reasonable forms of life now widely and rightly accepted in American society, including the fundamental dignity and equality of same-sex relationships.

    As Professors Shrage observes, and as Professors Gilreath and Metz would probably agree, I am a “small ‘c’ conservative” on marriage. I take my bearings from the social form of marriage that has emerged in our society over the last fifty years. It is radically new, and more just, in respect of both gender equality and now same-sex marriage. But it also remains familiar in important ways: its core is two people committing to build a life together in common. Many historians will tell us that marriage has gone through many changes over the centuries: I try to defend a public understanding, or constructive interpretation, of marriage as it exists today.

    Professor Lee is a different kind of conservative. He argues that “only male-female partnerships . . . can be conjugal . . . i.e., naturally oriented to procreation and fulfilled by having and rearing children together.” Only one man and one woman can share in the “comprehensive (biological, affective, rational-volitional) union of the spouses” that is marriage. This form of community is naturally, intrinsically ordered to and fulfilled by procreation.

    Professor Lee argues not only against same-sex marriage but this “new ‘marriage regime,’” of which same-sex marriage is a part. He says that this new regime ignores the all-important differences between “conjugal relationships” and all “other romantic relationships lacking any intrinsic link to procreation.” This new regime “will weaken [our] understanding of and commitment to marriage, with the result that children (and others) will suffer.” He is not clear about what is included in this objectionable “new regime” aside from same-sex marriage. However, I think his ideal conception excludes nearly all actual marriages for reasons I will explain. His account is, thus, radically revisionist, even reactionary.

    The part of Professor Lee’s argument that I have the most sympathy with is his contention that the connection between parents and their biological children is special and distinctive. He argues that biological parenthood is the “uniquely apt haven for children when they come to be.” “Children need the love and care of their own fathers and mothers,” and “fathers as well as mothers have a responsibility to their children.” Professor Amy Wax, whose comments we take up below, advances some similar concerns, and I will return to this theme at the end of my reply to Wax, for it raises questions that require more attention from all of us.

    But before we get there, I will indulge in a few words about the New Natural Law conception of marriage, while doubting that there is much new to be said about it and while fearing that my criticisms will be regarded by its defenders as obtuse and unfair.

    Lee asserts that I ignore “what is distinctive of sex and what is distinctive of marriage.” “Why,” he asks, “does sex express the spouses’ specific kind of love, their specifically marital union?” He says,

    What is distinctive of sex, and what makes it so powerfully significant, is precisely what make it sexual to begin with, namely, that in it, a man and a woman become bodily one—realizing the most thoroughgoing bodily union two people can bring about, and performing together the kind of act that disposes them to become mother and father together, and so the kind of act that tends to unite their lives together into the indefinite future.

    But why should we think that sexual activity has a single point, as opposed to a variety of points. Sometimes the point of heterosexual sex is to engage in a procreative act—“to become mother and father together”but very often (and I would wager far oftener) the point is only the shared experience of sexual intimacy. That is to say, couples—married or unmarried, straight and gay—engage in a variety of acts of sexual intimacy for a variety of reasons.

    Lee seems to have only one kind of sex act in mind, but most of the time couples take care to avoid sexual relations with real “procreative significance.” They may put a sheath on the male member, or a device inside the woman, they may take a pill, or wear a patch that discharges chemicals into the body to prevent implantation of a fertilized egg, or they may take care that the male ejaculate outside the vagina, or inside it only when the woman is not fertile (practicing what is called the “rhythm method”). If a husband wears a condom when having intercourse with his wife, or if they utilize another of these methods, does that act have procreative significance? Do they form a single “biological reality” and become “the single subject of a reproductive act” and “a real biological union”? Doesn’t the condom represent an effort precisely to avoid union with procreative significance? If the use of contraception is routine, indeed, the rule, in what sense are the sexual acts of these married couples “oriented” to procreation and the rearing of children?

    New Natural Lawyers hold that heterosexual marriages are by nature oriented to procreation and the raising of children, because of the organic or biological union that a male and a female form in coitus or intercourse. But my understanding is that on the New Natural Law view marriage is not consummated by a contracepted sex act.

    I don’t understand how these questions can be answered without addressing sexual morality, which Professor Lee says he does not need to address. But maybe the questions should be characterized as marital ontology rather than sexual ethics? In any event, I do not understand how coitus can be a conjugal act, or the couple can be understood to form a single biological unit, if intercourse involves the intentional use of artificial contraceptives, or other self-conscious methods of procreation avoidance.

    The larger point is this. Lee correctly observes, “Macedo . . . denies that marriage is intrinsically oriented to procreation.” That is true: I do deny it. The orientation of any particular marriage to procreation is up to the spouses: orientation to procreation is not given by nature but is optional. As I argue in my book, I understand those heterosexual married couples who could have children but who choose not to to be in a bona fide marriage. I regard them as in a bona fide marriage even if they never have had intercourse and never engage in mating behavior. I don’t see how Lee could do so.

    Lee insists that the “distinctive” meaning and good of sex is “inherent” in the nature and procreative function of marital intercourse. He puts in this way: “The marital union of the spouses is both good in itself and intrinsically oriented to enlarging into family as its natural fruition.” I agree that marital union is good in itself—as a distinctive form of friendship and a partnership in life—however, the orientation to “enlarging into family” is not given by nature, but rather is a valuable option.

    Lee goes on to say that by denying the intrinsic orientation to procreation, I somehow “make marriage a mere means,” which is “demeaning both to the union of spouses and to children” who become “products rather than as worthwhile in themselves.” Not true. All children and all persons, no matter how conceived, are of immeasurable worth: ends in themselves, and not mere means to the ends of others. It makes no difference how they were conceived. Moreover, as I say in the book, I regard marriage as intrinsically good: as a distinctive form of the human good. Lee pays no attention to most of what I say.

    Lee asserts that, if the point of sex is only “to have or bestow pleasure, or to express love or friendship, then no account could be given of why sex has such powerful, inherent significance, and why it is not appropriate for the majority of kinds of friendship and love.” Really? Professor Wax says something similar, but without tipping her own hand concerning what she thinks. She asks, “If sex’s significance is tied to procreation and marriage no longer is directed towards ‘the act of procreation,’ why demand sex be a part of it at all? There seems no rationale for distinguishing marriage from an asexual friendship, or any other committed, extended alliance between two people, whether related by blood or not.”

    Talk about pseudo problems. For the vast majority of people the vast majority of sexual activity is self-consciously non-procreative, yet they have no difficulty understanding that the good of most forms of friendship is nonsexual: we learn this by our familiarity with the most primordial forms of friendship, those among parents and children, siblings, and extended family members. The good of these forms of family life is constituted by forms of nurturance and mutual care that would be radically undermined by sexualization and romantic involvements. Everyone understands that the sexual dimension makes romantic relationships distinctive, and that many valuable forms of friendship would be undermined by introducing a sexual aspect.

    Suppose we concede to Lee that heterosexual couples have available to them a valuable option that is unavailable to same-sex couples: they can engage in sexual acts with a sort of “procreative significance” that is unavailable to same-sex couples. If those heterosexual couples are young (or youngish) and reasonably healthy, and they play their cards right, they can procreate in the “natural” and old-fashioned way. Good for them! Everyone understands this, yet what few people understand—myself included—is why this possibility must be understood as a sine qua non of marriage.

    Lee says that “the purpose of marriage law is to encourage a procreative-type relationship,” therefore “only those who can form this kind of relationship qualify for marriage, and that includes only man-woman couples.”

    Let me be clear: Lee’s argument does provide a reason for excluding same-sex couples. It does not, however, seem to me a powerful or even a weighty reason, given the many countervailing considerations, widely discussed in the debates surrounding same-sex marriage over the last thirty years, and also discussed in my book. Many heterosexual couples choose not to have children. And hundreds of thousands of children are being raised by same-sex couples: Lee has nothing to say to those children except, tough luck, your actual parents are not eligible to marry because, by my lights, their relationship is less than ideal.

    Even assuming that Lee’s account of familial perfectionism is right, how much does this tell us about less-than-fully ideal arrangements? Only that other arrangements are less than fully ideal. Nonideal parenting arrangements, like less-than-perfect homes, faces, or baseball teams, may still be very good. We also know that many heterosexual marriages fall far short of the ideal. So even conceding for the sake of argument many of Lee’s claims, we don’t know much about what our actual marriage policy should be.

    Our subject is civil marriage among men and women of various faiths, and with a variety of tastes and inclinations with respect to sex, and differing reasonable judgments about the “meaning of sex” and its place in their marriages and lives. We need a public justification for civil marriage that encompasses the range of reasonable views held by citizens today. In insisting that the law of civil marriage should reflect the true nature of marriage and sex, Lee insists on a singular truth that many reject on perfectly reasonable grounds. Or so it seems to me. Any reasonable interpretation of the legislative point of view has got to have much more of an appreciation of the good in the diversity of forms of lived experience.

Amy Wax

Response

Comment on Stephen Macedo’s Just Married

Before the Supreme Court decision in Obergefell v. Hodges, most states restricted marriage to couples of the opposite sex. Now that the court has held that our Federal Constitution guarantees the right to marry a person of the same sex, that restriction is gone. Same-sex marriage is the law of the land.

Stephen Macedo understands that expanding marriage to include same-sex couples raises thorny questions. Until recently, the heterosexual nature of marriage was widely considered constitutive and definitional, and the law reflected that conception. After Obergefell, what other elements of marriage, as previously defined or understood, must the law now relax? Marriage has always been regarded as the union of two people. Must the right to marry now include the right to marry more than one person? The argument to which Macedo devotes sustained attention in Just Married is that the logical next step after the same-sex marriage mandate is legal recognition of plural marriage, and specifically polygamy. His fair-minded analysis is well worth respectful consideration, and this comment attempts to undertake that task. But there is another momentous consequence to the constitutionally mandated right of same-sex couples to marry that Macedo barely considers. Parenthood for gay couples necessarily separates the biological from the social functions of parenting, at least in part. This fact raises complex practical questions and creates important legal dilemmas that the law must now squarely confront with unprecedented urgency. I devote the last part of my comment to exploring some of these issues.

Obergefell is a case about Constitutional rights. Macedo does not purport to offer a jurisprudence of rights, but his focus on whether the right to plural marriage comes next necessarily raises a legal question about what kinds of marriages Americans should have the right to make. But not all of what we commonly understand by marriage is legally mandated, and not all customary and normative changes we might consider introducing into the institution are legally forbidden.1 In making his case against legalizing plural marriage, Macedo necessarily must engage broad questions about the nature of marriage as a practice and institution. For both the formal and the informal aspects of marriage alike, a similar question arises: what choices and possibilities should be open to us? What shifts in actual practice should we tolerate, or widely accept? How do we distinguish the features of marriage that are peripheral and should be viewed as dispensable from those that are central and should be considered essential? What elements must or should be retained as part of this vital social institution? On these questions, Macedo offers no clear answers and little guidance on how to arrive at the answers. And this failure carries over to the question that preoccupies him most, which is whether the law must recognize plural marriage.

In laying the groundwork for his case against polygamy, Macedo touches on two key questions about the nature of marriage. Is marriage essentially a sexual relationship? Does marriage carry the expectation of sexual fidelity and exclusivity? Are these features central to marriage, or should they be seen as entirely discretionary? Macedo’s analysis of the sexual nature of marriage, and his discussion of the strong expectation of fidelity, are equivocal and ultimately unsatisfying. He never really makes up his mind about these elements on principled or empirical grounds. Maybe asking him to commit on these questions is asking too much, given that marriage is an ever-evolving social institution. But if so, that bodes ill for his firm stand against the legalization of polygamy.

On whether marriage has to involve a sexual relationship, or can be, as they say, platonic, Macedo concedes (49) that “romantic love has been the paramount reason for marriage for quite some time.” He avers that “sexual relations in marriage have a special sort of significance,” which he attributes to their “connection with the act of procreation.” Yet, not surprisingly in light of his strong embrace of same-sex marriage legalization, he does not assign central importance to the act of procreation, either as a defining feature of marriage or as a practical expectation. Given this demotion, his (apparent) defense of the sexual connection as setting marriage apart from other social relationships seems weak and unpersuasive. If sex’s significance is tied to procreation and marriage no longer is directed towards “the act of procreation,” why demand sex be a part of it at all? There seems no rationale for distinguishing marriage from an asexual friendship, or any other committed, extended alliance between two people, whether related by blood or not. And Macedo never really provides one.

Likewise for the expectation of sexual fidelity. Should sexual exclusivity continue to be an abiding feature of marriage, either as a normative expectation or a dominant practice? Are fidelity and exclusivity constitutive of marriage? Macedo dances around this question. To be sure, Macedo is seriously hamstrung by his reluctance to embrace traditional sexual morality or express moral disapproval of any private sexual choices, including open relationships. Rather, his critique of infidelity (205) is grounded chiefly in the fact that infidelity often entails deception and personal betrayal. In other words, the problem is lying, and not what is being lied about. But relying on that last refuge of sexual amoralists, which is the disapproval of dishonesty, will not do. The obvious objection is that the need for deception and betrayal is parasitic on the expectation of sexual exclusivity and the widespread understanding of marriage as monogamous. If that expectation were relaxed or suspended, there would be no need to deceive and betray. So the question of why the norm of sexual fidelity remains an abiding feature of marriage cannot be avoided.

At one point in Macedo’s discussion of plural marriage, he does (indirectly) appear to acknowledge (e.g., 202) the destabilizing power of infidelity. But his paramount concern (72) seems to be defending gays against the charge that their penchant for sexual adventurism and open relationships, if carried over into marriage, might undermine the norm of sexual fidelity in marriage generally. He tries to reassure us that, as the gay rights movement has “matured and more gay American have come out,” gay voices for sexual variety and adventure have been “muted” and “marginalized.” Beyond that, Macedo mostly ducks the hard questions: are open relationships undesirable, unstable, or untenable? If so, why are they? And do they really need to be?

Macedo does mention sexual jealousy, primarily in the context of discussing plural marriage. In his brief dismissal of polyandry (multiple husbands for one woman) as a viable form of plural marriage, he relies heavily on male jealousy as rendering that arrangement effectively untenable. In his lengthier consideration of polygamy, he treats the disruptive and immiserating effects of jealousy among multiple wives as a strong count against it. But there is a skittishness and evasiveness to Macedo’s consideration of the emotion of jealousy and how it fits into his case—revealing an ambivalence that infects his entire argument against polygamy. What is the nature of sexual jealousy? If it is part of our “innate” sexual psychology, how does that aspect of our makeup relate to culture’s power to alter it? Macedo insists that even universal emotions can be drastically modified by cultural and social forces. He warns us against assuming that strong impulses, even if grounded in natural tendencies, cannot possibly be overcome and thus must be indulged. In agreement with many feminists, for example, Macedo notes (62–63) that even if men are born with a strong aversion to housework, they should be expected to do it anyway. Presumably he would make the same argument for sharing childcare, or for the male tendency to dominate, or to be promiscuous, aggressive, bellicose, competitive, or contemptuous towards the “weaker” sex. Presumably he would make it for men’s antipathy to polyandry (except that he does not). In short, his nod to fashionable notions of cultural malleability leaves unresolved the very difficult, and profound, question of just how malleable human sexual psychology, attitudes, and behavior really are.

Macedo’s failure to fully engage this question looms large in his case against polygamy, which is ultimately grounded in empirical predictions about how people will behave and how that behavior will affect others. For Macedo, the legalization of same-sex marriage does not dictate recognition of plural marriage because there are evils linked to polygamy that justify society’s ban, including female subordination, gender inequality, early marriage, child neglect, and female jealousy, rivalry, and emotional resentment. The problem with this characterization is that it leaves unresolved the question of whether these evils are inherent in plural marriage. The conditions Macedo regards as undesirable prevail among many polygamous families, but not all. Even Macedo concedes that harmonious, well-functioning polygamous families can and do exist. And it is difficult to separate the observed features of past and present polygamous practices from the religious and social settings in which they are observed. In the period leading up to and including the present, polygamy was mostly the purview of Mormons, Muslims, and Africans. The lives of Mormon families are shaped by the precepts and customs of Mormonism, and its historically odious and marginal status within the United States. Muslims and Africans have practiced polygamy mostly within premodern, pre-Enlightenment third-world societies. In light of these historical facts, it’s hard to know whether the association of polygamy with the vices of “stationary despotism” represents a deep structural link, or a contingent function of the settings in which polygamy has occurred.

The argument that plural marriage is constitutively and inherently abusive is also open to an objection that can always be leveled against harms associated with irregular or unpopular arrangements more generally, which is that marginalization and stigma distort behavior and drive observed pathologies. When Mark Regnerus, a University of Texas researcher, reported that children raised by gay parents were at higher risk of trouble than children raised by opposite-sex parents,2 critics objected that the children in the study were raised when homosexuality was considered aberrational. The children also experienced a significant amount of dislocation and instability, including parental divorce, and were often raised by single parents. Presumably children raised by gay couples in the wake of Obergefell will experience less significant disruption. Similar arguments regarding the effects of societally imposed stigma have been made about the pathologies associated with single motherhood, or homosexuality. Indeed, Macedo’s case against legalizing plural marriage bears an uncomfortable resemblance to the arguments advanced against gay marriage itself, which were grounded in past experience distorted by pervasive disapproval and marginalized status. It has been asserted that, once society becomes more accepting of these arrangements, and they become more commonplace, many problems associated with them will diminish. Likewise with polygamy. If plural marriage were legalized, so much would depend on who practiced it, whether society accepted it, and how it would work. Such patterns, I believe, are hard to predict.

But there are grounds for speculation, so let’s speculate. As documented by social theorists like Charles Murray,3 stable marriages are now most likely to be found among relatively privileged members of society (educated whites and Asians), with marriage less enduring and in decline among other populations. Short-lived, simultaneous relationships and multi-partner fertility are growing among the less educated, and especially among blacks, as these groups retreat from formal marriage.4 Given that lower middle–class people are finding it difficult to maintain formal marital relationships of any kind, they are unlikely to lead the charge into plural marriage. Successful polygamy, like stable marriage and formal serial monogamy, would today appear to require the sort of superior organizational skills more commonly found among the educated.5 And being married to more than one woman is expensive. Even among the educated, serial marriage and children by more than one partner are relatively rare.6 For these reasons, and leaving aside polygamy among religious minorities (which is addressed below), polygamy in twenty-first-century mainstream America would likely be practiced only by the more affluent and educated, if at all.

Educated people, who are increasingly isolated from other demographic groups, have cultivated a strong set of mores and expectations surrounding companionate marriage, women’s equality, spousal roles, and childrearing. Presumably these would be imported into any polygamous relationships, and would temper and shape their character. Thus polygamy might evolve and reform, perhaps in unpredictable, but possibly in positive or at least innocuous, directions. Once again, social constructivists often insist that how institutions are practiced on the ground, and whether they end up as adaptive or dysfunctional, are highly sensitive to an array of social understandings, conventions, and ambient conditions. Plural marriage, if it ever takes hold (on which more below), would appear to be a good test case for those propositions.

Another wild card in how polygamy might play out, and who (if anyone) would practice it, is demographic trends. One knock on traditional polygamy is that it creates a shortage of marriageable women, because a few high-status men monopolize the field. But there is presently a shortage of marriageable men both at the bottom and top of the social spectrum. Kathryn Edin and others have documented that a growing number of less educated, working-class women regard their male counterparts as undesirable mates. The reasons range from poor socialization and behavior, to dimming economic prospects, to lack of sexual restraint.7 Even among the more educated, a gender mismatch has developed, with more women than men completing college. Given this landscape, it is at least possible that the option of sharing more than one high-status or well-socialized man might improve the situation for many women today.

And Macedo unduly minimizes other potential payoffs of polygamy for women. Although Macedo assumes that plural wives and their children are destined to engage in a grim struggle for their husband’s resources and attention, this characterization ignores the ways in which women might benefit from cooperation among wives. Sisterly aid in childcare and housework might come as a boon to women struggling to balance employment and family, offering an improvement on the lot of single mothers and the harried working wives of busy or tradition-bound men. And the prospect of sharing a man’s sexual attention might eventually become more accepted in a society in which sexual hookups and simultaneous liaisons are common and openly acknowledged, and where not a few women are ambivalent about the emotional (and sexual) demands of the wifely role. In other words, polygamy might evolve into a haven for a cohort of neo-traditional women who seek structure, stability, and sisterhood, value career and independence, and are not particularly romantic about men and sex.

In addition, a few simple rules could blunt some of the harmful features Macedo attributes to plural marriage. No man should be allowed to take a new wife without the written permission of existing wives. Although not a guarantee (because men do often have superior bargaining power), this rule would cut down on the number of plural marriages and go some way towards ensuring that all concerned were willing to live in a plural arrangement. Finally, although Macedo is worried that the availability of backup wives in the event of discord or divorce would exacerbate existing gender inequalities in relationships, he overestimates the prospect for equality within conventional marriage. As I have previously noted, powerful factors militate against equality in traditional dyadic marriages.8 These include men’s longer reproductive life, their larger pool of prospective mates (due to female hypergamy) and their stronger economic prospects (for reasons arguably inherent as well as conventional). Although the current cultural romantic ideal is the monogamous marriage of equals, the reality seldom lives up to it completely . . .

Finally, a signal weakness in Macedo’s brief against plural marriage is that it offers us no theory of how to set off harms (including speculative harms) against basic rights, and especially those that have been elevated to Constitutional status. Although this is disappointing, it is not surprising. A striking feature of the jurisprudence of rights pertaining to sexual choices and reproduction is the virtual absence of any acknowledgment that a lot of sexual behavior arguably protected under the “fundamental rights” umbrella, including what feminists are loathe to call “irresponsible reproduction,” can have egregious social consequences. Perhaps same-sex marriage is an easy case, since the legal and practical consensus, grounded in real experience, is that it is harmless. But Macedo’s brief against polygamy, which relies heavily on the harm principle, is hard to square with a sexual jurisprudence that ignores the harms that result from some kinds of sexual activity protected by its autonomy principles. This jurisprudence provides us with no guidance on whether, when, or even if, rights serve as a trump, or provide any sort of counterweight, against acknowledged social harms. Thus, even if the downsides that Macedo attributes to polygamy are plausible, we are left rudderless on how to set off the conflicting interests at stake. We simply don’t know how to weigh the harms he identifies against the rights, freedoms, and prerogatives implicated in the polygamy debate.

As if recognizing this weak link in the analysis, Macedo takes care to deny that any sort of right, let alone a fundamental one, is at stake for polygamy, and insists that whatever interests are at stake in plural marriage differ in basic ways from those implicated in the case for same-sex marriage. This is not entirely persuasive, if only because we are given no guidance as to how to determine what counts as a right, let alone a “fundamental” one. Men have always, everywhere, yearned for greater sexual variety and young wives. This is written in our nature. One could, after all, consider such desires “compelling.” But Macedo assures us that they give rise to no legally cognizable claim.

In sum, Macedo’s case against extending legal recognition to plural marriage in the wake of Obergefell is plagued with questionable arguments and soft spots. I remain unconvinced that the requirement of recognizing same-sex marriage does not extend to permitting polygamy. There is indeed a slippery slope, at least at the level of formal analysis and based on the evidence to date. I conclude, however, that the slope is not nearly as worrisome as it appears. To my mind, the question of whether polygamy should be legalized is not best approached as an exercise in analogical reasoning from what is currently permitted, as informed by evidence based on how polygamy has been practiced in the past. Rather, whether polygamy will actually take hold as a practice, and what effects it will have if so, will ultimately be determined by the force of the norms and mores surrounding marriage that prevail in our society today. In the day-to-day and on the ground, marriage is not lived and perceived as a matter of rights, but rather of normative conceptions and practical conventions. How people think about marriage as a living institution, and how they put their understandings into practice, are far more important than what the law permits.

How do present attitudes towards marriage bear on whether plural marriage should be legalized? My answer is a pragmatic one. I predict that few if any people in a position to do so will take advantage of plural marriage. My previous “what if” discussion is therefore mostly theoretical and largely moot. Ideals and understandings surrounding marriage are now strongly dominated by the educated elite, which, as already noted, has emerged as the group most likely to marry, stay married, and raise their children in the context of legally formalized relationships. And as already noted as well, this group cultivates its own subculture of expectations and practices around male-female relations. It embraces an ideology of marriage that is strongly romantic, feminist, companionate, and egalitarian. Plural marriage, which runs contrary to dominant notions of how these ideals should play out, is not likely to appeal to this cohort. Marriages are rarely “equal” in practice, but the built-in gender asymmetry of plural marriage overtly upsets the mythic egalitarian balance that feminist commitments demand. And the lack of sexual exclusivity in polygamous arrangements runs contrary to dominant romantic, companionate ideals that continue to underwrite conventional thinking about marriage, as exemplified by notions of “just us two,” “my one and only,” and the spouse as soul mate and singularity. In short, there are just too many conventions and understandings that impede plural marriage being practiced widely, or even commonly, or taking hold as anything but a fringe phenomenon. Plural marriage will retain its stigma among the knowledge class, at least in practice. A slippery slope that no one wants to go down is not a slippery slope worth worrying about.

What are the potential flies in the ointment here? The prediction that most people in a position to do so will not choose to practice plural marriage doesn’t mean that it won’t eventually be legalized. Legalization might occur, or at least not be resisted, as a “virtue-signaling” gesture on the part of ruling elites. As already noted, sexual attitudes and relational mores are now splintered by education, race, and class. But one signal feature of the present landscape is that practice and theory have diverged. There is a gap between lip service and lifestyle. Elites talk the ’60s. They embrace an ethos of sexual liberation and multiculturalism and a non-prescriptive nonjudgmental stance towards unconventional sexuality and family forms. But they continue to live in the mode of the ’50s, with traditional nuclear families dominating the scene. (On the flip side: social scientists tell us that people in the bottom half of society, despite growing relationship volatility, still revere and aspire to conventional married life.)9 The point is that people in the opinion-leader class—the most educated and stably married in society—are comfortable embracing, or at least not condemning, choices that they don’t actually make themselves. One is reminded of Sigmund Freud’s letter to his friend James Putnam in 1915, in which he states, “I am for a much freer sexual life. However, I have made little use of such freedom myself.” This implies that people in this class would be amenable to legalizing plural marriage, and might even push for it on the grounds of fairness, tolerance, or equality.

The possibility that support for the legalization of plural marriage may grow among the influential, despite a failure to practice it, does pose some potential dangers. The first problem relates to the growing presence of Muslims in the United States. Until now, Muslim immigrants, who are relatively few in number, have shown little interest in pushing for or practicing plural marriage. Most seem intent on assimilating, at least to the extent of adopting dominant sexual mores. But a surge of Muslim newcomers, especially from less elite or Westernized populations, could change all that. In an incident not widely reported in this country, the largest Muslim umbrella group in Italy, the Union of Islamic Communities and Organizations (UCOII), responded to a law allowing same-sex civil unions by demanding the recognition of plural marriages based on the argument that legalization was a “civil right” mandated by precepts of religious freedom.10 In the current climate of aggressive identity politics and the growing influence of radical Islamic elements, a similar movement could easily make its way to this country under the guise of securing religious liberty and free exercise.

If plural marriage took hold among some portion of the native Muslim population, it might simply remain a niche phenomenon associated with religious practice. But there would be the potential for growth, conflict, and disruption. Legalizing polygamy mixes badly with the welfare state, which is geared to providing a safety net for two-person couples and small families. Plural marriage legalization invites strategic exploitation of existing benefits programs. For example, widows of workers covered by the Social Security program are entitled to receive 100 percent of their deceased husband’s principal amount of retirement benefits. The Social Security insurance program for disabled workers also provides generous allotments for spouses and children. Would these payouts apply to multiple wives and their myriad children? If the answer is yes, that would prove extremely expensive, and create a powerful incentive to game the system by entering into plural marriages, genuine or sham. This would not only drain government coffers but might also engender resentment towards people who adopt the practice. Whether the government could lawfully curtail or at least mitigate these consequences—perhaps by limiting the number of spouses altogether, or the number entitled to collect benefits—is unclear.

Finally, the legalization of plural marriage would be vulnerable to aggressive moral entrepreneurs. Although, as noted, powerful cultural trends militate against the spread of plural marriage among “respectable” elites, some people who can afford polygamy might choose to fight those conventions. Men who value the stability of marriage but chafe under monogamy, and women drawn to its peculiar lifestyle benefits, might lead a push in its favor. Whether this would occur is anyone’s guess, as norm changes in this area often confound predictions. But a tipping point might be reached where plural marriage could become fairly prevalent, or not uncommon, in certain social sectors. What such arrangements might look like, and whether they would be a positive or negative development, depends on numerous unforeseen variables.

Finally, I want to note briefly one unfortunate shortcoming of Macedo’s fine book, which is its failure to give sufficient attention to the future status, both personal and legal, of the relationship of parents to children in same-sex families. Although gay couples are intent on seeing their marriages as fully equivalent to opposite-sex relationships, there is one important way in which they are not. Opposite-sex married couples frequently produce children, but same-sex marriages are sterile by nature. Same-sex couples can thus never simultaneously share a biological connection with their children. This means that at least one parent cannot be the natural parent of the child born into and raised by a same-sex family. The separation of legal from biological parenthood has already occurred to some degree for opposite-sex couples. Divorce and remarriage, and the marriage of women with pre-marital children, can produce such situations. But these are still regarded as a deviation from and exception to the “main event” or “gold standard,” which is two married parents biologically related to their mutual children. For same-sex couples, the lack of shared biological connection to offspring is structural and constitutive, dictated by the sterility of same-sex relationships.

Macedo never denies this reality. Over two short pages (104–5), he briefly gestures towards some of the issues that inevitably arise from these circumstances. In fact, the legal and practical difficulties created by the fact of same-sex couples’ sterility are dauntingly complex, and many issues remain unsettled. Because only one parent, at most, can be the child’s “natural parent,” there is virtually always a “third parent” (mother or father) lurking in the background. These “third parents,” regardless of marital status, can potentially bear rights and responsibilities towards their children. This reality, coupled with existing legal rules that narrowly define legal parenthood, can impede the relationship between the nonbiologically related partner and the offspring of the biologically related member of a same-sex couple. Many states currently require an unrelated parent—such as a stepmother or father—to take affirmative steps (including formal adoption) to establish their legal parenthood, and those rules would appear to apply to same-sex couples as well. Depending on the circumstances, the biological father or mother must affirmatively relinquish parental rights to clear the way for such an adoption. The very process of producing children also gives rise to complications. Many lesbian couples use anonymous sperm donors (who have few rights under most state laws), but gay male parents who reject adoption must resort to surrogacy, for which the rules are variable, restrictive, and complex, and which raises delicate questions of class exploitation. There have been suggestions for cutting through some of these difficulties through various legal reforms.11 Some have proposed that the widely applied presumption of paternity (which ascribes legal parenthood to husbands for children born within traditional marriages) should be extended to same-sex spouses of either sex. Others have urged suspension of the “rule of two” to permit children to have three legal parents, including same-sex partners and a natural parent external to the relationship. There is a push to relax existing restrictions on surrogacy and to make contracts for surrogate services more easily enforceable and widely available.12 Finally, some courts have relaxed the requirements of biological connection or formal adoption as a basis for legal parenthood under some circumstances, including for same-sex partners who have participated in the creation or upbringing of an unrelated child.13 None of these possibilities is problem free. As Macedo notes (105), there are concerns that parceling rights among multiple parents will generate confusion and conflict and make it easier for each to shirk. And granting rights to nonbiological parents “can be a slippery slope leading to abusive partners or anyone claiming ties to the child to drag a biological parent into court for bogus legal challenges.”14

As with plural marriage, no one can predict with certainty how these legal and logistical issues will play out or how same-sex families will function in the long run. There is no question that strong sentiments, age-old commitments, and conflicting attachments haunt the new world of gay families with children, which must inevitably separate biology from parenthood in order to even come into existence. Ultimately, however, the most important question is: how will the children fare. Optimists insist they will do just fine. Children of same-sex couples are often desperately wanted and planned for. Gay male couples must resort to surrogacy or adoption, which are costly and require sustained commitment. There is every reason to believe that most children in these families will be well-loved and meticulously cared for. But it is hard to know how such children will come to regard their circumstances once they grow into adulthood. For individual children of caring gay parents who are raised without their biological mother or father, an idyllic childhood may give way to resentments, awkwardness, a sense of loss, and a weakening or confusion of extended family commitment. Indeed, Macedo himself recognizes this danger (67), suggesting that children with same-sex parents run the risk of “confront[ing] a diminished context of kin altruism,” at least as “compared with married biological parent[s].”

Emblematic of the enduring problematics of gay parenthood is a letter that appeared in the New York Times style section in 2014 in response to an article about a gay couple seeking to repeal the New York state law prohibiting surrogacy contracts. The letter states:

A gay couple (men) who are friends of mind were considering a surrogate vs. adoption choice, and they ultimately chose adoption. One of them told me his reason for rejecting surrogacy was that, even to perpetuate his own genes or those of his partner, he did not think he could spend the rest of his life feeling responsible for a child being deliberately deprived of a mother. It seems to me that this cuts to the heart of the matter.15

As this letter suggests, gay families’ decisions to deliberately create new children (instead of choosing adoption) necessarily entails having those children grow up apart from at least one natural parent. (An exception is for the couple to form a household with, in effect, three parents, although only two would ordinarily have legal status under existing state law.) Nonetheless, many families are determined to go forward and to fulfill their longing for a full family life. But just as gay couples are striving to “normalize” their families by deemphasizing the importance of biological ties, there are social trends in the opposite direction. The biological imperative runs deep and growing numbers of people raised in unconventional, fragmented, or incomplete families are feeling its pull with ever more urgency. Aided by sophisticated DNA technology and entrepreneurs catering to their quests, adopted children and birth parents have challenged the secrecy surrounding adoption and insisted upon their right to do so.16 Many are taking steps to reconnect with their biological parents, and the search for relinquished children, birth mothers, and lost blood relatives is now an enduring feature of the social landscape. Tracing genealogy and unearthing ancestry are also growing preoccupations and potentially lucrative pastimes.

On the one hand, the yearning for identity, “root,” and strong biological family ties is not surprising. Anthropologists teach us that kinship, defined through degrees of biological relatedness, is an ancient organizing principle of family and social life, and creates strong and durable loyalties and longings. On the other hand, conventional understandings in the arena of family ties also create a powerful force field. Growing social acceptance and a corresponding trend towards broken and blended opposite-sex families, which also involve children being raised by unrelated adults, may blunt or soften negative feelings and potential consequences.

Apart from the effects on individuals, there are broader societal considerations at stake. Margaret Somerville,17 a Canadian scholar, has expressed the concern that, by breaking the co-biological parent-child link through the habitual use of assisted or third-parent reproduction, same-sex parenting will weaken the connection between marriage and procreation and demote the importance of generational biological ties. Heather MacDonald has a similar, albeit more gender-specific, set of worries about the proliferation and normalization of same-sex families.18 She notes that the unity of genetic and parental responsibility, which has been a constitutive feature of human life for most of history, has recently been threatened by a rise in paternal abandonment and single-parent families. Although recognizing that heterosexuals have taken the lead on these trends, she worries that lesbian families that create children who will not be raised by, and often don’t even know, their male parent, will reinforce the message that fathers are dispensable. This will further undermine the importance of fathers in society—a result that MacDonald sees as fueling the destructive trend towards paternal abandonment and irresponsibility, which redounds to the detriment of growing numbers of children. In MacDonald’s view, the push to equalize the status of gay couples by celebrating same-sex reproduction represents another example of “putting what’s good for adults above what’s good for children.”

In sum, same-sex marriage legalization will potentially have tangled and far-reaching consequences for both adults and children. But in guiding and predicting the direction of family life in the wake of Obergefell, reasoned analysis and evidence can take us only so far. Customs, attitudes, and understandings, including the class-stratified practices that are a salient feature of the present moment, will likely have more influence. And that influence, which works in mysterious ways, cannot be easily predicted, either for plural marriage or for the fate of same-sex families with children. In sum, the long-term effects of same-sex marriage legalization, both for the individuals involved and for society as a whole, is a work in progress. We can only hope that future developments preserve what is strong and virtuous in the institution, and forestall its further destruction. Only time will tell.


  1. In actuality, informal norms are often reflected by various aspects of the law. When it comes to the sexual nature of marriage, and sexual fidelity, as discussed below, the law is not entirely silent. For example, some states allow annulment of marriages for lack of sexual consummation and some have laws against adultery on the books, although they are rarely enforced. See Deborah Rhode, Adultery; see also Black’s Law Dictionary (noting that non-consummation was generally considered grounds for dissolving a marriage).

  2. Mark Regnerus, “How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study,” Social Science Research 41 (2012) 752–70.

  3. See Charles Murray, Coming Apart.

  4. Karen Guzzo and Frank Furstenberg Jr., “Multipartnered Fertility among American Men,” Demography 44 (2007); Jennifer Manlove et al., “Factors Associated with Multiple-Partner Fertility among Fathers,” Journal of Marriage and Family 70 (2008). See also Ralph Richard Banks, Is Marriage for White People? How the African American Marriage Decline Affects Everyone; Amy L. Wax, “Learned Helplessness,” review of Is Marriage for White People?, by Ralph Richard Banks, New Criterion, May 2012.

  5. Amy Wax, “Diverging Family Structure and ‘Rational’ Behavior: The Decline in Marriage as a Disorder of Choice,” in Handbook of the Economics of the Family, by J. Wright and Lloyd Cohen (Elgar, 2011).

  6. See Guzzo and Furstenberg, “Multipartnered Fertility”; Manlove et al., “Factors Associated with Multiple-Partner Fertility.”

  7. Kathryn Edin, Doing the Best I Can; Edin and Maria Kefalas, Promises I Can Keep.

  8. Amy L. Wax, “Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?,” Virginia Law Review 84 (1998) 509.

  9. See, e.g., Edin and Kefalas, Promises I Can Keep; Andrew Cherlin, The Marriage-Go-Round.

  10. See Virginia Hale, “Muslims Demand Polygamy in Response to Same Sex Unions,” Breitbart, August 9, 2016, http://www.breitbart.com/london/2016/08/09/civil-union-muslims-demand-polygamy/.

  11. On the problems arising for same-sex couples with children and proposed solutions, see, e.g., Brian Bix, Family Law, ch. 4; Abby Tolchinsky and Ellie Wertheim, “Parenting Arrangements for Same-Sex Couples post Obergefell,” New York Law Journal, July 21 2015.

  12. See, e.g., Pamela Miller and Valerie Cohen, “Changing Tides: Legalizing Surrogacy in NY,” New York Law Journal, March 2016.

  13. See, e.g., Sara Randazzo, “Court Redefines Who Is a Parent,” Wall Street Journal, August 31, 2016, A3 (reporting on New York States cases granting visitation and custody to the former member of a same-sex couple, who is biologically unrelated to, and not the adoptive parent of, the partner’s child). See also New York Times, August 31, 2016 (same).

  14. Randazzo, “Court Redefines.”

  15. Letter, New York Times, Style section, March 2, 2014.

  16. See Amy Wax, “Mothers Alone,” Policy Review, Feb/Mar 2008.

  17. Margaret Somerville, “Children’s Human Rights and Unlinking the Child-Parent Biological Bonds,” Journal of Family Studies 15 (2007).

  18. Heather MacDonald, “Reengineering the Family,” National Review, February 1, 2010, http://www.nationalreview.com/article/229057/reengineering-family-heather-mac-donald.

  • Stephen Macedo

    Stephen Macedo

    Reply

    Response to Amy Wax

    Professor Wax begins by asking for greater clarity concerning my understanding of marriage, noting some respects in which same-sex marriage changes the institution: by further separating “the biological from the social functions of parenting.” The question of whether there is something special about biological ties among parents and their biological children is an important issue that Wax concludes with and that Lee also raises, so I will come back to that at the end.

    Before that, Wax describes the central questions surround marriage as these: “What choices and possibilities should be open to us? . . . How do we distinguish the features of marriage that are peripheral and should be viewed as dispensable from those that are central and should be considered essential? What elements must or should be retained as part of this vital social institution?” She then goes on to say that “Macedo offers no clear answers and little guidance on how to arrive at the answers.”1

    That last claim is unfair. The three middle chapters of Just Married furnish what I argue is a publicly defensible conception of civil marriage, both the symbolic dimension of marriage and the various legal incidents that form the “marriage bundle.” The law of marriage facilitates spouses’ ability to enter into a publicly legible mutual commitment to build a life in common. Wax largely ignores these chapters. Perhaps because her complaint seems more specific.

    Whereas Metz worries that my position in favor of marriage assigns the state too much ethical authority, Wax worries, I think, that I do not say enough about the normative dimensions of sex and marriage. Metz is right to question the limits of the ethical authority of the state, and Wax is right to raise the issue of sexual moralism. But neither gets my position quite right, and I will try to clarify.

    “Macedo touches on two key questions about the nature of marriage,” says Wax. “Is marriage essentially a sexual relationship? Does marriage carry the expectation of sexual fidelity and exclusivity? Are these features central to marriage, or should they be seen as entirely discretionary?” She says my discussion of the “sexual nature of marriage” and “the strong expectation of fidelity” are both “equivocal and ultimately unsatisfying.” She is, in particular, concerned with what I say about the normative expectation of fidelity in marriage: I “dance around the question” of whether “fidelity and exclusivity” should remain “normative” and “dominant.” She then notes that I identify deception and betrayal as the clearest problems: the “lying, and not what is being lied about.” Wax calls this the “last refuge of sexual amoralism.”

    It would be easier to respond if Wax were clearer about her own position. She sometimes sounds like a sexual moralist, as when she seems to request an official or public account of the role of sex in marriage: “Is marriage essentially a sexual relationship?” This is a strange question: people have plenty of sex before marriage. I am also puzzled by Wax’s query, already quoted in my discussion of Lee: “If sex’s significance is tied to procreation and marriage no longer is directed towards ‘the act of procreation,’ why demand sex be a part of it at all?” What would it mean to demand sex be a part of marriage? What would it mean to think of marriage as “directed towards” procreation? I reject Lee’s position, and I am pretty confident Wax does too. So what is all this about?

    Let us take a step back.

    What I try to do in the book is to respond to Scalia’s slippery slope argument by defending what seem to me sensible judgments concerning marriage, monogamy, incest, and some aspects of sexuality more broadly, without resorting to sexual moralism in the form of arguments that cast particular sexual practices as unnatural, or inherently wicked or by nature immoral. When Richard Posner began with a similar premise in his landmark book, Sex and Reason, published in 1992, that seemed a bold move.2 It no longer is. So far as I can tell, only that rather small group of scholars associated with the New Natural Law advance serious arguments that rest on the inherent immorality of particular sexual practices (and Lee avoids these in his defense of marriage).

    So, for example, I argue in the book in favor of the traditional legal and moral prohibition of all incestuous sexual relationships, including among consenting adult siblings, which some ethicists defend, and which the German Ethics Council has recently recommended should be decriminalized.3 I argue based on the risk of prospective harm to children, and I also argue that the liberty interests that are involved are not weighty compared with the harms. I also argue that polygamy as known to human experience is at odds with the basic liberal and constitutional values of equal liberty and fair equality of opportunity.

    By arguing in these ways I hope to defend commonsense judgments while avoiding reliance on essentially moralistic arguments. I focus instead on the broad consequences of social institutions, including for securing justice and a system of equal liberty and fair opportunity for all.

    Now let us consider an issue that vexes Professor Wax: infidelity in marriage. I do indeed say in the book that “consensual nonmonogamy seems far less objectionable than the covert and deceptive kind. If both partners are really fine with it, they practice safe sex, and it does not hurt and maybe helps their relationship, is there a ground for public concern about discreet swinging?” I also say that while I am “skeptical that ‘open’ relationships are consistent with stable commitment,” “couples’ private, consensual sexual lives are generally their own business.” Does Wax disagree? I have no idea, but I rather doubt that she wants law enforcement officials to get back in the business of prosecuting couples who agree to have sexually open relationships.

    She might think we would all be better off if “exclusivity” remains “normative” and “dominant,” and if so, I would tend to agree. But I don’t think the law should punish “swingers,” and I say that not because I am an amoralist but rather because I think the sexual freedom and privacy of married couples and adults generally is important.4

    My aim in the book is to defend monogamy without moralism (yet not without morality). However, in light of the worries of Professors Metz and Wax, let me amplify this, going beyond what I said in the book to clarify what I mean by my defense of monogamy.

    Most dictionaries (and common usage) describe monogamy somewhat ambiguously as “the practice or state of being married to one person at a time,” or, “the practice or state of having a sexual relationship with only one person.”5 Naturally enough, these two aspects have been understood as two sides of the same coin, but they need not be. I consider the first aspect as primary (as most dictionaries do): marrying one other person. Monogamous marital commitment is exclusive: two people agree to build a life in common, assuming special responsibilities for one another. However, the terms of that life in common are up to them to decide jointly: others may approve or disapprove of their choices but they are the couples’ to make.

    This raises Professor Wax’s question: What about adultery as traditionally conceived? Should the law enforce sexual exclusivity (the other side of the traditional coin) as part of monogamy, even if a couple wants to have a threesome (or a moresome)? I think the best interpretation of our law and the relevant ethical claims would respect the autonomy of married couples to decide for themselves whether to have a threesome, or whatever. When a couple freely agrees to enlist a third party for a sexual liaison there is no betrayal and no “infidelity” to one’s spouse. It may be bad for the relationship, and a sign that something is wrong, but neither spouse is failing to be true to the other if both willingly agree to a “threesome.” If this is a mistake at least they are (apparently) making it jointly.6 If the couple have children that changes matters; for simplicity’s sake I’ll assume we are discussing childless couples (Wax discusses children only with regard to same-sex marriage and polygamy).

    Other people are free to be skeptical and indeed disapproving of consensually “open” marriages, but there are no public interests or impacts on third parties sufficient to justify criminalization. A few heterosexual couples have experimented with “open marriages” for decades. Some resorts cater to heterosexual couples who “swing” (the one’s advertised online look rather small and scattered).7 Couples’ private, consensual sexual lives are generally their own business, and they should be free to conduct their marriages as they wish. Of course, people are also free to disapprove of consensual non-monogamy in marriage, as (apparently) people overwhelmingly do. Those coupled gay males who have publicly discussed consensual threesomes, such as Dan Savage, describe rather modest, infrequent, and private forays.8 Certainly, the grounds for concern become much more serious if children suffer because their parents have adopted a “swingers” lifestyle; that changes the situation.

    There is more to be said here, and I have more to say, but space is limited. For now, I will conclude by observing that, as with the Wax’s query about whether we should regard sex as “essential” to marriage, I do not really understand what the problem is here. The vast majority of people seem very skeptical about sexually open marriages, and that seems right to me. If a married couple has children, there would be serious grounds for others’ concern. Where children are not involved, it would seem privacy and discretion generally rule, in theory and practice, and that seems right to me.

    Professor Wax at first suggests that I’m foolish to worry about polygamy: “A slippery slope that no one wants to go down is not a slippery slope worth worrying about.” Yet she devotes much of her attention to this issue. Wax also says that a “signal weakness” of my discussion of “plural marriage” is that I offer “no theory of how to set off harms (including speculative harms) against basic rights, and especially those that have been elevated to Constitutional status.” She further worries that “Macedo’s case against legalizing plural marriage bears an uncomfortable resemblance to that advanced against gay marriage itself.”

    Sorting out these matters is why I wrote the book, and the last third of Just Married consists of three chapters on plural marriage in which I address these issues, though evidently not exactly in the way Wax would like.

    I oppose criminalization of plural cohabitation but argue against equal recognition of plural marriages of the sort that Obergefell provides for same-sex marriages. I also think the law should in some ways recognize the effects of plural marriages in order to protect the vulnerable. The crucial point, which, as I noted above, Professor Shrage seems also now to accept, is that plural marriage as “an experienced” or at least widely experienced, “rather than an imagined form of life,” is incompatible with “securing equal liberty and fair opportunity for all.” I further argue that “normative monogamy best secures citizens’ equal basic liberties, equal status and standing, and fair opportunities to pursue the good of family life. When it comes to polygamy, we need not rely on sheer moralism. Liberal and democratic justice supports efforts to discourage polygamy.”

    The similarity between some arguments against same-sex marriage and those against polygamy is that both often reference types of harms. One dissimilarity is that the right to marry one other person—of the opposite or the same sex—is a basic human interest, a right that can be secured for everyone, and a right that helps secure the value of equality within marriage. Another dissimilarity is that the harms associated with polygamy as a social form are well established in the academic literature. Everything we know about polygamy as a lived and not merely imagined social form suggests that it cannot be secured for all on an equal basis, and that it is associated with high rates of violence, and poor educational and health outcomes for women, children, and society. And these worse outcomes are present not only where polygamy is stigmatized and marginalized—as in North America—but everywhere, including where polygamy is not only accepted but regarded as normatively superior to monogamy. In Just Married I describe the evidence on these matters from comparative social scientists, anthropologists, and historians, precisely in order to distinguish same-sex marriage and polygamy.9

    When Professor Wax gets around to discussing her own concerns about polygamy they seem similar to mine. She points out that while polygamy among Muslim immigrants might “remain a niche phenomenon . . . there would be the potential for growth, conflict, and disruption.” She notes correctly that “polygamy mixes badly with the welfare state,” and also that “the legalization of plural marriage would be vulnerable to aggressive moral entrepreneurs.” While “powerful cultural trends militate against the spread of plural marriage among ‘respectable’ elites,” says Wax, some people who can afford polygamy might choose to fight those conventions,” including rich men who “chafe under monogamy,” and some women “drawn to its peculiar lifestyle benefits.” “Whether this would occur is anyone’s guess.” This all seems correct to me and is consistent with what I say in the book.

    Professor Wax also knows that many on the left and right have argued that, after same-sex marriage, there is no principled case against polygamy. Commentators from Chief Justice Roberts on down have suggested that opposition to polygamy has no leg to stand on post Obergefell. That seems to me wrong, and so I set out to counter it. I am at a loss to see exactly where Wax actually disagrees with me on polygamy.

    In general, Wax seems annoyed by certain kinds liberal constitutional argument, which she only vaguely specifies, and which she seems to attribute to me or hold me responsible for. So she says: “Macedo’s brief against polygamy, which relies heavily on the harm principle, is hard to square with a sexual jurisprudence that ignores the harms that result from some kinds of sexual activity protected by its autonomy principles. This jurisprudence provides us with no guidance on whether, when, or even if, rights serve as a trump, or provide any sort of counterweight, against acknowledged social harms.” I have no idea whose “sexual jurisprudence” she has in mind here: perhaps Justice Kennedy’s? Why is she pinning that on me? Where do I defend a “sexual autonomy” principle that ignores harms? Professor Wax seems to want me to fit into some preconceived liberal box, but I respectfully decline the invitation.


    1. I’m going to focus on the issue of “answers” rather than “how to arrive at the answers,” since I’m not sure what that phrase means. (The way I “arrive at answers”—if that means, how do I decide what I think about difficult issues—is to read on the subject, consider different positions critically, state my position as carefully as possible, and revise in response to further criticism. Isn’t that what we all do?)

    2. Harvard University Press.

    3. I discuss incest in Just Married, 194–97; and see “German Ethics Council in Favor of Lifting Ban on Incest with Siblings,” DW.com, September 24, 2014, http://www.dw.com/en/german-ethics-council-in-favor-of-lifting-ban-on-incest-with-siblings/a-17950246.

    4. Movies have been made about them, and many articles and books written. I recall an episode of All in the Family in which Edith accidentally befriends married swingers. I would guess the incidence is quite low among heterosexual couples; some evidence suggests it is higher among same-sex couples.

    5. This is the Google entry for monogamy, but the dual shades of meaning run through other dictionaries and common usage.

    6. This is adapted from Just Married.

    7. https://www.oyster.com/articles/54454-10-erotic-hotels-that-swingers-will-love/.

    8. Dan Savage, The Commitment: Love, Sex, Marriage, and My Family (New York: Penguin, 2005).

    9. In chs. 7–9.

Stephen Macedo

Response

Response to Lee and Wax

I want to conclude by considering an issue raised by both Professors Lee and Wax.

I noted at the beginning of my discussion of Professor Lee that the part of his argument with which I have the most sympathy is his contention that the connection between parents and their biological child is special and distinctive. Lee makes the pertinent point that “a mother has the right to be sent home from the hospital with the child to whom she has given birth, an not simply one of the children . . . chosen at random.” I am prepared to agree with Lee that being raised by one’s married biological parents in a warm and loving home environment is the best and most choice worthy arrangement, other things being equal.

In the last third of her essay, Prof. Wax also says she regards “two married parents biologically related to their mutual children” as the “‘main event’ or ‘gold standard,’” meaning, I think, that this is most advantageous arrangement for children: a point that I also agree with. She allows that divorce and remarriage and pre-marital and extra-marital childbirth mean that many children in heterosexual households will frequently not be raised in these “gold standard” circumstances. Yet she also argues that “for same-sex couples, the lack of mutual biological connection [is] structural and constitutive.”

Does that mean that she joins Lee in opposing same-sex marriage? No, but she clearly has misgivings, referring to “strong sentiments, age-old commitments, and conflicting sentiments” that “haunt the new world of gay families with children, which must inevitably separate biology from parenthood” in order to produce children. Yet she also notes that since gay male couples must exercise considerable care and expense to have a child, their children “are often desperately planned and meticulously cared for.” She adds, not unreasonably, that “it is hard to know how such children will come to regard their circumstances once they grow into adulthood.” She worries that is it possible that an “idyllic childhood may give way to resentments, awkwardness, a sense of loss and a weakening or confusion of extended family commitments.”

These are valid concerns, which may also apply to many heterosexual pregnancies accomplished with gamete donation. In any case, let us explore this overlapping concern of our two more conservative commentators, a concern with which I have some sympathy.

David Velleman, a well-known philosopher at NYU, has offered a version of this argument (though not as an argument against same-sex marriage) in his article “Family History.”1 Velleman argues that children have an important interest in knowing and being raised in acquaintance with their progenitors: the sources of their genetic and cultural inheritance. And he points out that many or most adoptees go to considerable trouble to track down their biological parents.2 Wax argues that, “just as gay couples are striving to ‘normalize’ their families by deemphasizing the importance of biological ties, there are social trends in the opposite direction. The biological imperative runs deep,” and many children conceived with the assistance of gamete donation are going to considerable trouble and expense to “reconnect with their biological parents.”

Velleman argues that in “coming to know and define themselves, most people rely on their acquaintance with people who are like them by virtue of being their biological relatives.” “Family resemblance” is a vital resource for identity formation: forming a concept of oneself. He argues that, “through the ages, people unacquainted with their origins have been regarded as ill-equipped for a fundamental life-task and dramatically, even tragically, disadvantaged.” He argues that it is morally preferable to adopt an existing child who is “already and independently destined to be alienated from its biological family.”3 Vellemen expresses apparent sympathy with laws, as in the UK, banning anonymous egg or sperm donation.

Consider also the remarks of a woman who wrote a piece for the Atlantic Monthly explaining her unease about “the ethics of egg donation”:

I struggled with massive resentment toward my partner—resentment that he would get the chance to see himself in his child and that I never would. To see all those little resemblances: his dimples, his sister’s eyes, his father’s laugh. I will never get a chance to see how the random magic of genetics came together to make a child out of the two of us. It’s a huge grief, and one that I bear alone. Only our closest friends and family know the details of our daughter’s conception. I still have pangs whenever someone tells me she has my eyes or asks which one of us she looks like.4

So what should we say about conception via gamete donation, and how does it bear on the question of same-sex marriage?

Lee argues that “children have a natural (defeasible) right to” the “love and care” of their biological parents, and that the state properly promotes heterosexual marriages, “the type of community that fulfills that natural right.” Velleman also speaks of “a child’s right to know his or her parentage.”5 He notes the apparent incoherence of parents seeking to “make themselves slightly better off in some fundamental dimension”—by choosing to have a child by donated gametes as opposed to adoption, in order to have some genetic relation to the child—while at the same time “impoverishing their children in the same dimension.” “Why,” he asks, “should they be entitled to enlarge their own circle of consanguinity by creating children whose circle will be broken in half?”6 These are important issues.

I want to make two points concerning this. First, the ethics of conception by gamete donation as opposed to adoption for couples who are unable to conceive naturally—whether gay or straight—is independent of the question of whether those couples should be allowed to marry. Lee and Velleman will certainly hold that this is true for heterosexual couples. Conception by gamete donation could simply be regulated or outlawed across the board, leaving all couples who cannot conceive without donation (gay or straight) to adopt or remain childless.

We should also note, however, that biological ties are not a matter of “all or nothing.” The interest in biological connection and family resemblance can be addressed in various ways by straight and gay parents who avail themselves of sperm and/or egg donors. Securing donations from relatives is one obvious way. Call it the “all in the family” solution. The brother of one lesbian spouse might serve as sperm donor or the sister of one half of a gay couple might donate an egg.

I do not mean to sound glib here. Addressing the family resemblance worry via “all in the family” sperm or egg donation creates additional complexities and possible conflicts. Does the sperm or egg donor acquire any third-parent rights?

But let us ask one other question. Just how great a handicap is it to learn that one has been conceived by sperm or egg donation? Is one “dramatically” and “even tragically disadvantaged” in a “fundamental life task,” as Velleman asserts? Or is the disadvantage milder than that? Is it merely like being born left-handed in a right-handed society? I agree with Velleman that one obstacle to an honest and clear-minded assessment could be an ideology of denial around assisted pregnancy. Nevertheless, I tend to think that he exaggerates considerably the degree of disadvantage. Moreover, parents do not do wrong by conceiving a child under very good even if not ideal circumstances.

I also fully agree that this is a matter worthy of greater attention, including careful investigation of how those conceived by gamete donation come to feel about the matter. These are issues for everyone in society and all parents, straight and gay.

On this score, Wax’s concluding observations are reasonable and worth taking seriously. She expresses the hope that “future developments preserve what is strong and virtuous in the institution, and forestall its further destruction.” I could not agree more.


  1. J. David Velleman, “Family History,” Philosophical Papers 34.3 (2005) 357–78.

  2. Ibid., 358–60.

  3. Ibid., 369, 374.

  4. Chris Bodenner, “Uneasy about the Ethics of Egg Donation,” Atlantic, January 17, 2017, https://www.theatlantic.com/notes/2017/01/uncomfortable-with-the-ethics-of-donor-eggs/513365/.

  5. Velleman, “Family Histories,” 370.

  6. And these questions are complicated, as Velleman notes, by Parfit’s “non-identity problem,” which is the problem that the child in question would not exist were it not for the decision the ethics of which is being called into question (see ibid., 371).

Shares