by Tamara Metz. Princeton : Princeton University Press, 2010. 214pp. Cloth $27.95/ £19.95. ISBN: 9780691126678. E-book $27.95. ISBN: 9781400832224.
Reviewed by R. Claire Snyder-Hall, Department of Public and International Affairs, George Mason University . Email: rcsnyder [at] gmu.edu.
With UNTYING THE KNOT: MARRIAGE, THE STATE, AND THE CASE FOR THEIR DIVORCE, Tamara Metz has written an important book that makes a provocative and ultimately persuasive argument for getting the state out of the marriage business. Writing as a political theorist, and drawing on liberal as well as feminist traditions, Metz argues that the legal and ethical components of marriage ought to be disentangled. In short, she proposes that the ethical relationship of marriage should be relegated to the realm of civil society (eliminating marriage as a legal category), while its legal benefits should be available to a wide array of relationships that involve intimate care-giving. While her position may seem radical at first, the idea of divorcing marriage from the state is increasingly appearing in popular and academic discourse, probably because, as Metz notes, it builds upon some of our most fundamental political principles.
The book begins with a discussion of American constitutional law and liberal political theory, including in-depth discussions of Locke, Mill, and Okin. Metz argues that both liberalism and the Courts “assume but do not defend” what she calls “the establishment of marriage by the state” (p.19). In questioning whether such a defense is possible, Metz unsettles what really is a taken-for-granted assumption. In my view at least, it is hard to imagine our society actually eliminating marriage as a legal category.
The first part of Metz’s clearly articulated thesis calls for the disestablishment of marriage. Viewing the federal government in strictly liberal terms, Metz sets out to argue that the state should remain neutral on controversial moral issues, such as marriage. She demonstrates that civil marriage has never fit well into a liberal theory of government because the institution is not reducible to individual contract and because the type of union it creates exceeds the terms of methodological individualism. As Metz explains, marriage functions not as a contract but as a legal status – “a predetermined bundle of rights and responsibilities” (p.132) – and, even more importantly, as an ethical relationship that, in her view, “requires constitutive recognition from an ethical authority” (p.119). In our society, she argues, that ethical authority has been, but should no longer be, the state. As she rightly points out, it is precisely because marriage has ethical as well as legal components that creating a separate category of civil unions for same-sex couples, while preserving marriage for heterosexuals, will never satisfy the desire for equality, even if civil unions were legally equivalent to marriage, [*522] which they currently are not: They receive no federal benefits and provide no basis on which to sue the federal government.
Given the fundamentally ethical nature of the conjugal relationship, Metz argues that the liberal state should disestablish marriage, just as it has disestablished religion. In a truly pluralistic society, the state should not determine what constitutes marriage, given the wide array of different visions of marriage that exist among the people. Since the state is not in the business of overseeing baptisms and bar mitzvahs, she reasons, why should it determine which marriages are valid? Under her revision, “as with bar mitzvah status, nongovernmental authorities would confer the label” of marriage, not the government (p.141).
While Metz does a good job of arguing for the disentanglement of the ethical from the legal components of marriage, in my view she ends up overemphasizing the role of the state, insisting that it actually constitutes, rather than merely recognizes, marriage. While it’s true that the Protestant tradition that has dominated in the U.S. gives the state a constitutive role in creating marriage, it is important to note that Catholicism and Judaism, as well as the American tradition of common-law marriage, have long viewed marriage as a relationship constituted through the promises two people make to each other, rather than by state authority. None of those three important marital traditions requires that marriages receive approval from religious or political elites. In this way, marriage is indeed like a bar mitzvah, which, contrary to Metz’s contention, is not a status conferred by a rabbi – a Jew becomes bar or bat mitzvah (subject to the commandments) upon reaching a certain age, regardless of whether this transition is endorsed by a rabbi or celebrated by a community. To say that “marriage requires constitutive recognition from an ethical authority” (p.119) is to ignore the history of marriage. To claim that only the state has the power to constitute marriage concedes too much power to the state and goes against common belief, which tends to view marriage in personal and communal terms.
While this criticism of Metz’s approach does not weaken her argument for the separation of marriage from the state, better recognition of the diverse sources of marital legitimation would strengthen her argument, by reinforcing her point that because there are so many different religious understandings of marriage, the liberal state should not assume the position of deeming which are legitimate and which are not. Moreover, it is precisely because so few people actually view the state as constituting their marriages that we do not need the state in order for marriage to continue as an important ethical relationship and counterweight to liberal individualism. When it comes to the ethical relationship of marriage, the state is and should officially be seen as irrelevant.
The second major component of Metz’s argument addresses what should happen to the legal benefits of marriage upon disestablishment. In short, she argues that marriage should no longer be recognized as a legal category and that the legal status of marriage ought to be replaced with a category that she calls the “intimate care-giving union” (ICGU). That is to say, because of the importance of intimate care to human flourishing and because providing care to loved ones often renders the care-giver vulnerable economically, Metz [*523] wants the government to protect such relationships and insure members against risk, rather than simply moving towards a situation where individuals fend for themselves or rely on individual contracts.
Metz insists that marriage should not be the conduit for governmental benefits and protections because many relationships involving intimate care do not fit the model of the monogamous dyad. While Metz makes an important point, the book leaves me unclear as to the details of the ICGU status, how it works in practical terms. Metz seems to want the rights and responsibilities currently attached to marriage to be available to any couple or group, including not only same-sex couples, but also polygamous unions, non-sexual domestic partnerships among individuals or groups, and parent-child relationships. The problem with this approach, however, is that significant differences exist among those types of relationships, and it does not seem to make sense to treat all of them as the equivalent of traditional marriage. For example, “a group of widows who have to some degree pooled their resources to live together and care for each other” (p.123) may not want to offer each other the comprehensive set of rights and responsibilities traditionally provided to married couples. While one can imagine them wanting access to financial benefits related to taxes and insurance, as well as hospital visitation rights, they very well may want their respective children to inherit their money and make end-of-life decisions on their behalf.
Moreover, since parent-child relationships are already protected by law, why would they be included under ICGU? While parent-child dyads might benefit from the extension of the marital communications privilege, to prohibit courts from requiring parents to testify against children, it seems to me that parents already have a robust set of rights and responsibilities. And when the relationship of parent-child dependency ends, it is not like a divorce, and it would not make sense for them to divide their assets. Consequently, I am not sure what would be gained by legally conflating this type of relationship with marriage.
To me, it seems a lot easier to expand the current benefits of marriage to same-sex couples and address other relationships by extending health care, flexible work schedules, and social security benefits to all people and allowing property, inheritance, and end-of-life decision-making issues to be addressed via individual contracts. This approach could be combined with the disestablishment of marriage: civil unions for all, with marriage relegated to civil society. That would advance Metz’s overarching normative argument but in a simpler way.
Despite my quibbles and questions, however, I am very impressed with the persuasiveness of Metz’s overarching argument and with the respectful and non-dismissive way in which she addresses the normative concerns of religious people, as well as the insights of feminist theorists. This book definitely makes a contribution to the literature on marriage, and it deserves a wide reading.
© Copyright 2010 by the author, R. Claire Snyder-Hall.