Marriage Abolition and Polygamy: PHIL 365

Marriage abolition and polygamy
PHIL 365
Week 8
October 26, 2021
PHIL 365 (Week 8) Marriage abolition and polygamy October 26, 2021 1 / 19
Further readings
Clare Chambers, Against Marriage: An Egalitarian Defense of the

Marriage-Free State
Claudia Card, “Against Marriage and Motherhood” Hypatia
Elizabeth Brake, “Minimal Marriage: What Political Liberalism
Implies for Marriage Law”
Table of Contents
1 What is Marriage?
2 Chambers’ egalitarian arguments against marriage
3 Shrage on polygamy
Table of Contents
1 What is Marriage?
Society and the law
Marriage has both a cultural aspect and a legal one.
Society and the law
Culturally, marriage has lots of different associations to it; it can have a

festive and ceremonial aspect (weddings, vows of fidelity), and often has
symbolic associations with culturally valued goods (family, children, love,
fidelity, etc.).
Society and the law

fidelity, etc.).
Legally, marriage is a status-granting agreement between two individuals,

which is regulated by the state, and which give the spouses certain legally
enforceable rights and duties towards one another, in addition to various
privileges which the state wishes to grant them in light of their status.
Society and the law

fidelity, etc.).
Legally, marriage is a status-granting agreement between two individuals,

which is regulated by the state, and which give the spouses certain legally
enforceable rights and duties towards one another, in addition to various
privileges which the state wishes to grant them in light of their status.
We’re interested in marriage as a legal institution.
The (contemporary) legal framework of marriage
In marrying, spouses agree to give each other the following

(non-exhaustive) rights and duties:

The right to be on each other’s insurance policies and pension plans,
inherit from the other in case they die, and jointly to own real and
personal property (this protects the marital estate from each other’s
creditors).

creditors).
Rights in each other’s property in marriage and divorce, including an
equal share in the profits of marriage, and entailing for example that
one spouse may need the other’s permission for certain acts and
decisions (e.g. selling a house in which they both live).

creditors).
Joint parental rights and obligations – e.g. joint rights of adoption
and custody in case of no-fault divorce, and legal status with respect
to step-children

creditors).
Joint parental rights and obligations – e.g. joint rights of adoption
and custody in case of no-fault divorce, and legal status with respect
to step-children
They designate each other as their next of kin.
Marriage also brings with it various legal privileges:

Married people typically qualify for various tax breaks and benefits.

Marriage confers preferential immigration status, and survivor,
disability, Social Security, and veterans’ benefits, emergency
decision-making powers on behalf of one’s spouse, spouse care leave,
preferential hiring and moving assistance (for military/civil servant
spouses).

spouses).
States often provide various rewards to married people, e.g. cash
payouts for marrying (West Virginia), increased disability benefits.

spouses).
Immunities from normal legal obligations, e.g. spouses are not
required to testify against each other.

spouses).
Immunities from normal legal obligations, e.g. spouses are not
required to testify against each other.
Widows are typically entitled various accommodations and benefits:
leave for bereavement, the right to sue for a spouse’s death.
The goods of marriage
Many people think that the state recognition of marriage is a good thing:
Committed, loving partnerships between two adults are wonderful
things that bring many benefits to both partners.
−→ We have an interest in facilitating such partnerships.
Children growing up in stable homes with two parents are less likely
to experience a wide range of problems (academic, social, emotional,
cognitive), not only in childhood but later on in adulthood as well
(Amato; Howard & Reeves,).
−→ We have an interest in making it easy and attractive for committed
partners to stay together.
−→ We have an interest in making it easy and attractive for committed
partners to stay together.
The state recognition of marriage promotes these interests.
Table of Contents
1 What is Marriage?
Two critiques of marriage
Clare Chambers supports the

abolition of marriage as a legal
category, as a state-sanctioned and
regulated form of relationship.

Her reasons (in this chapter):


Marriage oppresses women.


Marriage is heterosexist, by
excluding same-sex couples.

Chambers argues these critiques are

consistent, and jointly support the
following conclusions:


If marriage exists, it should be
open to all couples.


If marriage exists, it should be
open to all couples.
Marriage should be abolished.
Overall sketch of the argument
Subordination: A is socially subordinate to B if A enjoys a privileged

position in some hierarchy with respect to B
Subordination: A is socially subordinate to B if A enjoys a privileged

position in some hierarchy with respect to B
Exploitation: A exploits B if A is able to unfairly take advantage of B’s

vulnerability – their lack of decent alternatives – for personal gain.
P1 If some social institution unjustly subordinates one social group to

another, or enables the exploitation of that group by another, then
this institution should be abolished.

P2 The institution of marriage exploits women for the benefit of men,
and unjustly subordinates the unmarried to the married.

∴ Marriage should be abolished

When is subordination unjust?

When is subordination unjust?
−→ When it is maintained by coercive force, and bestows benefits and
privileges to some at the expense of others on morally arbitrary
grounds, e.g. differences in lifestyle choices (A chooses to marry, B
does not), or personal characteristics (e.g. sexual orientation, religion).
Marriage as unjust subordinating of the unmarried
State recognition of marriage unjustly subordinates non-married people to

married people:

married people:
Married couples get state benefits that other people don’t:

married people:
Cash rewards and tax benefits.

married people:
Cash rewards and tax benefits.
Better terms on credit, loans, and lower insurance premiums.

married people:
Spouses get privileges other intimate partners or members of your
care network don’t:

married people:
Immunity from legal obligations, preferential hiring.

married people:
Immunity from legal obligations, preferential hiring.
Financial protection in case the relationship breaks apart (e.g. alimony)

married people:
−→ All these benefits come at the expense of the unmarried: we pay
higher taxes, higher insurance premiums, etc.

married people:
−→ All these benefits come at the expense of the unmarried: we pay
higher taxes, higher insurance premiums, etc.
−→ The tax and legal regime surrounding marriage also makes it harder
for unmarried people to work and have children
In sum, marriage unjustly subordinates the unmarried by using state power

to lavish benefits on the married – and it subordinates same-sex couples in
particular when it uses state power to exclude them altogether from these
benefits.

benefits.
Why is this subordination unjust?

benefits.
Why is this subordination unjust?
−→ Because monogamous marriage is just one lifestyle choice among
others – there are many other different ways to live, many different
ways to care, many different ways to raise children.
Marriage as exploitative of women
Marriage has often been a trap for women, a state of imprisonment and
sometimes brutality that they must endure, escape, or eschew. That is to
say, marriage has played a significant role in maintaining the wider regime
of gender inequality, since it has been used to consolidate legal, economic,
cultural, and symbolic oppression by confining women to a private sphere
in which they are seriously disadvantaged. (Chambers 2017, p. 13)
Historically, marriage was more-or-less a form of chattel slavery (rape used

to be a property crime), and often served (and still serves in many places
today) as a way for male-headed dynasties/families to secure political and
economic alliances.
Historically, marriage was more-or-less a form of chattel slavery (rape used

to be a property crime), and often served (and still serves in many places
today) as a way for male-headed dynasties/families to secure political and
economic alliances.
For much of history, married women could own no property, nor refuse sex
with their husbands, nor make no contracts in their own name, and many
were forbidden from seeking employment outside the home. All their rights
were subsumed under their husband’s, and they were subject to their will.
Chambers argues that even if the legal inequities of marriage have been
abolished, marriage is still de facto inegalitarian and exploitative of
women:
women:
Marriage significantly increases the gendered division of household
labor and care work, and increases domestic violence.
women:
This is partly because tax laws incentivize marriages where one spouse
earns much more than the other.
women:
−→ Progressive taxation penalizes married couples who earn equally.
women:
−→ Progressive taxation penalizes married couples who earn equally.
−→ The state subsidizes couples where one spouse earns no income.
women:
States tend to make it easier and cheaper for mothers than for fathers
to take time off work to take care of children.
women:
Chambers: when the state recognizes and privileges marriages, it
validates a historically sexist institution that comes loaded with cultural
requirements to “display gender.”
women:
Chambers: when the state recognizes and privileges marriages, it
validates a historically sexist institution that comes loaded with cultural
requirements to “display gender.”
−→ “Symbolic violence”
In sum, according to Chambers, the legal structure of marriage exploits

women by incentivizing and ideologically validating a highly unequal,
non-reciprocal distribution of the benefits of marriage.
Marriage as a violation of freedom
On top of everything else, the legal regime surrounding marriage sharply

limits human freedom, because (a) it pressures individuals into one specific,
culturally loaded type of relationship over others, and (b) gives them
extremely limited freedom to define the terms of their own relationships.
Marriage as a violation of freedom
On top of everything else, the legal regime surrounding marriage sharply

limits human freedom, because (a) it pressures individuals into one specific,
culturally loaded type of relationship over others, and (b) gives them
extremely limited freedom to define the terms of their own relationships.
All the rights and duties of marriage are bundled together

Not everyone is interested in exchanging all these rights and duties
with a single person.
Not everyone is content exchanging all these rights and duties with
just one person.
How should we respond to the injustices of marriage
Chambers: abolish it!!!
Let the state directly regulate, in piecemeal fashion, the relationships that
require it, e.g.
require it, e.g.
Consent laws for sexual relationships
require it, e.g.
Benefits to those who claim dependents.
require it, e.g.
Regulate long-term cohabiting relationships so that neither party can
wantonly exploit the other or become financially dependent on them.
require it, e.g.
Universalize some benefits, e.g. give everyone a finite number of
people they can sponsor for immigration, allow exemptions from
inheritance tax for cohabitants who inherit a part of their primary
residence, etc.
require it, e.g.
Universalize some benefits, e.g. give everyone a finite number of
people they can sponsor for immigration, allow exemptions from
inheritance tax for cohabitants who inherit a part of their primary
residence, etc.
If some people don’t wish to encumber each other with relationship-based

rights and duties, they may be permitted to opt out by signing a contract.
Potential worries for Chambers
Giving the state discretionary power to decide which relationships

matter and are worthy of protection/benefits/regulation may leave
some relationships vulnerable to underprotection.
−→ Think of minoritarian, non-traditional caring arrangements that
significant constituencies disapprove of (e.g. polyamory, communal
childrearing).

To regulate, the state must classify and define relationship types, but
many relationships of care whose members may wish to exchange
specific rights and duties evade easy classification.

Direct regulation of human relationships of care by the state is
potentially coercive.

Under Chambers’ agreement, it is not possible to form a significant
relationship without incurring significant rights and obligations – unless
you explicitly opt out by contract.

−→ Can you opt out any time, and unilaterally?

−→ Can you opt out any time, but only by mutual compact?

−→ Can you opt out any time, but only by mutual compact?
−→ Must you draw a contract prior to entering any significant relationship,
lest you unwittingly incur obligations?
Table of Contents
1 What is Marriage?
Liberalise, don’t abolish?
A different way of responding to inegalitarian and illiberal aspects of

marriage would be to retain the “opt-in” quasi-contractual model of
marriage, but unbundle and open some of the benefits of marriage to all
relationships of care, while universalizing or maybe abolishing others.

−→ Open up: allow consenting adults to sign as many legal unions as
they wish with other consenting adults.

−→ Unbundle: let the contracting parties decide which of the important
marriage-like rights and duties they wish to give one other.

−→ Universalize: decouple valuable benefits (e.g. additional child tax
credits, immunity from testifying) from legal status.

−→ Universalize: decouple valuable benefits (e.g. additional child tax
credits, immunity from testifying) from legal status.
−→ Abolish: no cash prizes or preferential tax breaks for mere lifestyle
choices.
Obvious objection: slippery slope!!!
The proposed liberalization of marriage may lead to wildly overgenerating

marriages, and legitimate creepy polygynous cults like the Kingston Clan,
in which one man weds 65 women who are indoctrinated from a young age
into believing he is a holy man.

−→ This will strengthen patriarchal communities, and legally rewards
HIGHLY assymetric relationships.

Please oh please, won’t someone think of the children?

Please oh please, won’t someone think of the children?

In a recent ruling upholding Canada’s anti-polygamy laws, BC
Supreme Court Judge Robert Bauman pointed to evidence involv-
ing “higher mortality rates of children born into polygamous fam-
ilies, the dangers of early sexualization of girls, gender inequality,
and the problem of so-called lost boys – young men turfed out
of polygamous communities as a result of competition for young
brides.”
Shrage: don’t panic
On gender equality and polygamy:

Yes, polygamous arrangements have historically been highly
patriarchal and inegalitarian, but the law can remedy this.

−→ by requiring symmetric assignments of rights and duties in
marriage-like economic compacts, or at least imposing significant
egalitarian constraints on them (e.g. invalidate any prenuptial
agreement leaving a spouse with less than 2/5 of an equal share of the
marital estate in case of divorce)

−→ by requiring symmetric assignments of rights and duties in
marriage-like economic compacts, or at least imposing significant
egalitarian constraints on them (e.g. invalidate any prenuptial
agreement leaving a spouse with less than 2/5 of an equal share of the
marital estate in case of divorce)
−→ through policies that disincentivize non-reciprocal caring arrangements
(e.g. Sweden’s parental leave laws)

Granted, some polygamous arrangements will still be
gender-structured, but so what?

−→ Other polygamous relationships are not so structured, while many
monogamous relationships are.

−→ Other polygamous relationships are not so structured, while many
monogamous relationships are.
−→ And anyway, polyamorous cohabitation is already legal, and the only
difference between legal polyamorous cohabitation and recognized
polygamy is that currently unprotected and status-less (because
unmarried) partners could benefit from marital protections and status.

The kids are alright:


Yes, studies have shown that polygamous arrangements have poor
effects on children, but these studies’ findings are controversial, and
it’s unclear that they generalize well (e.g. reference class problems).


Yes, studies have shown that polygamous arrangements have poor
effects on children, but these studies’ findings are controversial, and
it’s unclear that they generalize well (e.g. reference class problems).
Yes, polygamous arrangements have special costs (potentially
nightmarish divorce scenarios), but they also have benefits which
monogamous relationships lack (e.g. more primary parents per child).

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Marriage abolition and polygamy

October 26, 2021

Clare Chambers, Against Marriage: An Egalitarian Defense of the

2 Chambers’ egalitarian arguments against marriage

2 Chambers’ egalitarian arguments against marriage

Marriage has both a cultural aspect and a legal one.

Marriage has both a cultural aspect and a legal one.

Culturally, marriage has lots of different associations to it; it can have a

Marriage has both a cultural aspect and a legal one.

Culturally, marriage has lots of different associations to it; it can have a

Legally, marriage is a status-granting agreement between two individuals,

Marriage has both a cultural aspect and a legal one.

Culturally, marriage has lots of different associations to it; it can have a

Legally, marriage is a status-granting agreement between two individuals,

We’re interested in marriage as a legal institution.

In marrying, spouses agree to give each other the following

In marrying, spouses agree to give each other the following

In marrying, spouses agree to give each other the following

In marrying, spouses agree to give each other the following

In marrying, spouses agree to give each other the following

Marriage also brings with it various legal privileges:

Marriage also brings with it various legal privileges:

Marriage also brings with it various legal privileges:

Marriage also brings with it various legal privileges:

Marriage also brings with it various legal privileges:

Marriage also brings with it various legal privileges:

2 Chambers’ egalitarian arguments against marriage

Clare Chambers supports the

Clare Chambers supports the

Her reasons (in this chapter):

Clare Chambers supports the

Her reasons (in this chapter):

Clare Chambers supports the

Her reasons (in this chapter):

Her reasons (in this chapter):

Chambers argues these critiques are

Her reasons (in this chapter):

Chambers argues these critiques are

Her reasons (in this chapter):

Chambers argues these critiques are

Subordination: A is socially subordinate to B if A enjoys a privileged

Subordination: A is socially subordinate to B if A enjoys a privileged

Exploitation: A exploits B if A is able to unfairly take advantage of B’s

P1 If some social institution unjustly subordinates one social group to

P1 If some social institution unjustly subordinates one social group to

P1 If some social institution unjustly subordinates one social group to

P1 If some social institution unjustly subordinates one social group to

P1 If some social institution unjustly subordinates one social group to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

State recognition of marriage unjustly subordinates non-married people to

In sum, marriage unjustly subordinates the unmarried by using state power

In sum, marriage unjustly subordinates the unmarried by using state power

In sum, marriage unjustly subordinates the unmarried by using state power

Historically, marriage was more-or-less a form of chattel slavery (rape used

Historically, marriage was more-or-less a form of chattel slavery (rape used