Does Marriage Protect or Control?


In a

previous commentary I wrote in response to the gay and lesbian rights movement’s

pursuit of legal marriage: Be careful what you wish for.

Recent judicial and legislative decisions revealing some of the mis-uses of

marriage help explain why the "freedom to marry" is a questionable goal.

Clearly, denying marriage rights to gays and lesbians is discriminatory, but

removing that barrier to access still leaves us with a sexist, sex-phobic,

authoritarian institution that can be deployed to punish (mostly) poor women and

others who don’t follow certain rigidly defined "norms" of sexual and social



progressives fight for access, we should not sell our struggle short by failing

to look critically at what’s beyond the barriers.


married does offer certain protections under law, benefits, and social

recognition – all of which can be supportive to couples trying to build a life

together and create family. But the institution of marriage can also be used to

coerce, punish, and prescribe certain behaviors.


recent Boston Globe article (August 26, 2001) explores the "alienation of

affection" laws on the books in nine states, which require the "other" woman or

man to pay damages to the spurned spouse. The idea is that the seductress or

seductor lured away someone’s mate, and so ought to pay for the "property" he or

she has stolen.

Granted, the "alienation of affection" laws are archaic and little-used, but

their recent re-emergence combines with other efforts to make "breaking up hard

to do," and reminds us that marriage creates a channel for the state to

prescribe what’s normal and acceptable about how we have sex, create family, and

negotiate private relationships. Consider the following:

* The

1996 Personal Responsibility and Work Opportunity Act (PRWOA) leads with the

"finding" that "Marriage is the foundation of a successful society." The Act

goes on to enforce marriage by requiring single mothers to work, but not

necessarily married women. The PRWOA requires a two-parent family to work only

35 hours weekly (except when they receive federally funded child care, in which

case they must work 55 hours per week). Meanwhile a single parent must spend 30

hours per week in the labor force. Gwendolyn Mink argues that despite what you

may have heard about moving women from "welfare to work," the Temporary

Assistance for Needy Family (TANF) regime treats wage work as the alternative to

marriage, not to welfare — as punishment for mothers’ independence.


Using an 1805 law against adultery (which prohibits a man and woman who aren’t

married to "lewdly and lasciviously associate, bed and cohabit together"), a

North Carolina judge ruled recently that an unmarried couple should be arrested

and the mother should lose custody of her children. "The court finds that the

act of adultery by the mother living openly with a man she’s not married to is

detrimental to the welfare of these children" (Boston Globe, August 19, 2001).


According to the Boston Globe (February 12, 2000), there is bi-partisan support

for requiring states to spend part of their welfare money on pro-marriage

activities, encouraging caseworkers to talk to pregnant women about marrying the

baby’s father, judging state success based on reductions in out-of-wedlock

births, and teaching about the value of marriage in high school.


Oklahoma has designated May 5th as "Save Your Marriage" day; earmarked $10

million in welfare funds for marriage counseling; and hired two "marriage

ambassadors" to appear on talk shows and at schools. Engaged couples and

newlyweds are entitled to "state-sponsored counseling and spiritual guidance" as

part of Governor Frank Keating’s efforts to slow the divorce rate. (Boston

Globe, March 11, 2001).


Louisiana and Arizona have new laws – and similar bills have been filed in 20

other states — allowing couples to voluntarily enter into "covenant marriages,"

which do not permit no-fault divorces. Divorce or separation is permitted only

if one spouse can prove that the other committed adultery, was imprisoned for a

felony, was physically or sexually abusive, or abandoned the home for a year.


should progressives fight for when it comes to the state’s role in protecting,

controlling, regulating, or otherwise defining the ways we construct

relationships and families?


married should not entitle anyone to financial support or benefits of any kind

from the state. We should de-link state-provided economic benefits and private

choices about how, whether, and in what context we have sex, construct

relationships, and create families. For example, there should be no tax benefits

for married couples, no special social security provisions, no opportunities to

avoid punitive welfare-to-work policies, no state-funded counseling sessions

about how to make your marriage last.

Rather, progressives should look for ways to support people to be in whatever

kinds of relationships they choose – whether they are long-term, monogamous,

heterosexual or not. One way to do this would be to make sure people are not

influenced by financial incentives. Women should not be put in the position

where they consider marriage because it will make them more economically secure

or help them avoid punitive welfare policies. There should be no financial

incentives to get married or disincentives to get divorced. Progressives should

fight for a social safety net that has no relationship to people’s private

choices. The safety net should include universal health care, a generous

caregiver’s allowance that would provide a guaranteed income to anyone caring

for children or any other family member, paid family and medical leave, and

workplace protections (that are not only just but make family life sustainable)

such as a living wage, affirmative action, comparable worth, a shorter work

week, and the right to unionize. (See The Women’s Committee of 100/Project 2002



Furthermore, being married should not create an opportunity for the state to

infantilize adults. If my spouse is moved to leave me for someone else, I should

not be able to sue that someone for stealing my property. Whatever else I may

think of him at that moment, my spouse is not a puppet on a string.

Meanwhile, states should not write bills that create special terms – such as

covenant marriage – by which couples wed. Doing so involves the government in

privileging certain kinds of marriages and promoting rigid "norms." There should

be laws against murder, assault, and theft, and there should be protections for

children, legal guidelines for child custody and division of assets in case of

the dissolution of a relationship, but when it comes to matters of the heart,

the law must treat us like free and autonomous human beings who create bonds

with others, struggle with decisions, sometimes break hearts, maybe even "wreck"

families. The law should have nothing to say about how adults enter into human

relationships, families, communities.


that mean there would be no social or cultural supports or inputs into nurturing

families, relationships, and satisfying sex lives? On the contrary. Progressives

should support good, widespread, age-appropriate sex education in schools and

elsewhere. We should work to undermine the use of sex, sexuality, and the female

body as a marketing tool, and reclaim all of those things as positive aspects of

human expression, power, desire, vulnerability, connection. In addition to using

social and cultural outlets to affirm sex as human expression, we should look

for ways to link it with responsibility, understanding our bodies, being

knowledgeable about health issues and pregnancy, and being in touch with life

goals, aspirations, needs, limitations, etc.

Progressives should also develop social and cultural channels for exploring ways

of being in family and in relationships – not to coerce or prescribe, but to

acknowledge the choices, the challenges, the meaning we might make of our role

in private and public human community. Inviting your community to witness and

support the choices you make – such as in a wedding ceremony – seems sensible

and meaningful, and part of the process of creating public space for

acknowledging and understanding choices about how to lead your life. But

limiting that celebration, acknowledgment, or public promise to heterosexual

couples makes no sense at all. Progressives should acknowledge and find public

ways to support a wide range of private choices.

Intimate relationships can be a source of support, affirmation, and joy as well

as many challenges. Even the much-affirmed, financially underwritten,

Disney-reinforced, over-idealized heterosexual married couple can claim only 25

percent of the population in their demographic. In other words, many

heterosexual couples are not getting and/or staying married despite all the

legal, cultural and financial props. Maybe it’s time to envision and create

social institutions and policies that nurture a wide range of intimate human

connection, rather than simply trying to pry open marriage and make it available

to more candidates.


Evan Wolfson, Marriage Project Director at the Lambda Legal Defense and

Education Fund says, "We’re now the kind of people you think of in terms of

marriage, instead of the crude and horrible stereotypes that we had to dispel,"

he is noting a positive development, but one that progressives should be careful

with. True, on the positive side, more people recognize that long-term, same-sex

relationships are acceptable and have as much chance of being healthy as

heterosexual relationships. But on the negative side, a campaign to increase

access to marriage does nothing to undermine the ways marriage as an institution

can extend the long arm of the state into our private lives, our bedrooms, our

choices about how to raise children. Nor does it do anything to challenge the

"crude and horrible" stereotypes of the "lewd and lascivious," non-marrying



when is it enough to be the "kind of people you think of in terms of marriage"?

Rather than fighting for the right to same-sex marriage, progressives should be

fighting for the right to a social safety net that protects everyone regardless

of whether the sex they’re having is lewd, adulterous, with the same sex, and/or

non-monogamous. And we should be fighting for social and cultural space outside

the marketplace and outside state-sponsored incentive plans where we can

exercise our right to define cultural and social norms about our roles in


Cynthia Peters is a political activist and freelance editor and writer. She

can be reached at [email protected]


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