Toward a Less Minimal Marriage

Elizabeth Brake’s Minimizing Marriage breaks new ground in the contemporary liberal critique of traditional arrangements. The object of her critique is what she calls amatonormativity—the belief that society should value two-person, amorous love relationships. Even same-sex marriage (SSM) advocates are too restrictive for Brake in that they would confer benefits on two people alone; SSM advocates are unwitting amatonormativists. Their defenses of marriage leave out “urban tribes, best friends, quirkyalones, polyamorists” and other diverse groups united by a common bond of caring. Brake argues for an almost complete disestablishment of marriage.

Brake’s argument for minimal marriage is both destructive and constructive. Rather than propose that we abolish marriage, Brake contends that we free ourselves of any demand that marriage have an approved form. Yet Brake’s minimal marriage does not abolish the function of marriage, though she thins out that function considerably. After attacking traditional normative beliefs about marriage, she constructs a new vision of marriage as an institution that fulfills, broadly speaking, the function of caring. States, in her view, should recognize and provide benefits to caring relationships.

The destructive facet of Brake’s argument is pretty standard contemporary liberal fare. She holds two trump cards, and she plays them whenever she seeks to show that the institution of marriage is not really about children, procreation, amorous love or whatever one might think marriage is about. The first trump card is to show that things that seem connected are not really connected. It may appear, for instance, that marriage and procreation are connected, but, Brake argues, that connection is obviously illusory because some married couples do not procreate; some married couples adopt; and some people conceive children outside of marriage. Enough counterexamples can be piled up to show that the connection which people have long thought central to marriage is not really central.

The same disconnecting thoughts dissolve the idea that “‘marriage involves sexual intimacy, economic and domestic cooperation, and a voluntary mutual commitment to sustaining this relationship.” These are the characteristics that some SSM advocates put at the heart of their argument about marriage’s purpose. Brake one-ups this characterization. Might these characteristics be holdovers “from an institution now irrelevant to many citizens’ relationships?” she asks. Don’t close platonic friends or roommates often share finances? Three’s company and four is also, perhaps, when it comes to domestic cooperation or, perhaps, sexual intimacy. If these characteristics define marriage, marriage can, once again, move from bilateral to multilateral relations.

Brake follows this argument to its logical conclusion. Consent and consent alone is the ground for legitimate marriage. “Adult siblings and first cousins” can marry. Presumably parents can marry their children once the children have reached the age of consent. “Marrying one’s dog,” however, “is a nonstarter,” for canines are not able to consent. Lest one think that she is a “speciesist,” Brake concedes that should dogs develop an ability to consent through evolutionary processes, she will have to revisit this question and confer the proper rights to man’s best friend.

Brake’s first trump card erases the requirement that marriages be limited to two adults or that marriage have any particular purpose that might require a particular form. An accumulation of such trump cards leads Brake to conclude, on this important matter, that “legal frameworks for adult relationships are best considered separately from legal frameworks for parenting.” This conclusion is the most important outcome of her destructive argument against marriage, though its implications extend farther, for she willingly and self-consciously embraces where the slippery slope leads.

Brake’s second trump card is the contemporary liberal (Rawlsian) doctrine of public reason. Public reason rules out any argument that has reference to or depends on a comprehensive doctrine—a controversial religious or moral horizon that informs one’s life about the world. Only public reasons—reasons available to all citizens regardless of their comprehensive doctrines—fly in modern democracy. The doctrine of public reason allows Brake to make quick work of “conservatives and natural lawyers” who, on Brake’s reading, think that law can gently teach moral norms and guide citizens to a proper, if imperfectly realized, understanding of marriage and family life. Brake even dismisses the watered-down version of liberal virtues (embraced by perfectionist liberals), which would emphasize the teaching of self-control. Since some in society do not accept the value of marriage or self-control, all such arguments “inappropriately insert comprehensive moral doctrines into political life.”

Brake does admit that some public reason arguments might lead one to conclude that government should favor bilateral, heterosexual marriage. If children did better in such arrangements, perhaps an argument could be made for maintaining the link between parenting (if not procreation) and marriage. Brake quickly dismisses this argument. “Empirical findings of the benefits of marriage are mixed,” she writes. In any event, she worries that studies have not been conducted in a genuinely experimental setting. Current data arise from today’s environment that is, in Brake’s view, predominantly defined by amatonormative, traditional marriage; dysfunctional, broken families (products of divorce or the failure of marriages to form) result from the prejudice in favor of traditional marriage as much as (or more than?) inferior forms of family. Brake’s concerns about data suggest that it would be nearly impossible to persuade her that bilateral, heterosexual marriage might indeed be better for children.

Brake concludes that marriage cannot buckle any particular goods to an established relationship. “What we need,” she writes, “is the means to distinguish the central and peripheral aspects of marriage.” What ends up being central is caring, which, in Brake’s reading of our complex society, has a public purpose and would suffer without some state support and regulation. Minimal marriage buckles relationships (in whatever form) to the value of caring: sex and children and love and sharing are peripheral; caring is central.

The need to support caring is what keeps Brake from embracing a full-fledged abolition of marriage. “Care, broadly construed, may involve physical or emotional care taking or simply a caring attitude. . . Parties to such a relationship know and are known to one another, have ongoing direct contact, and share a history,” she writes. Participation in such relationships is a primary social good—a good that makes the exercise of one’s autonomy possible and desirable.

Government must be involved in creating a framework for caring relationships. Such frameworks must have easy exits, because otherwise they would be about something more than caring. Government would offer a menu of rights and protections from which caregivers choose; among these are immigration privileges and looser residency requirements (for in-state tuition, for instance), entitlements for care-taking leave against employers, and liberal visitation rights. Brake does not emphasize giving financial aid to caring relationships (such aid would presumably go directly to individuals so as not to create dependency on the relationship itself). Her framework seems to presume the existence of a robust social democratic state. Marriages are free to adopt purposes other than caring for one’s partner(s), but not to the extent that the partners become mutually economically dependent on each other. Dependency opens the door for abuse, an opposite of caring.

What are we to make of Brake’s argument? I suppose there may have been a day when someone who openly advocated adult incest would have been run out of town on a rail, but those days are not our days. There is much low-hanging fruit in Brake’s book—her unwillingness to acknowledge the social science data on the importance of family and marriage to children; the demographic disaster that her principles would produce and are producing; her awareness of the slippery slope created when marriage is minimized to consensual caring; her highly selective (and hypocritical) application of the doctrine of public reason, which erases all that she wants to abolish but keeps all that she wants (she sets an impossibly high bar for evidence that would sustain a more than minimal marriage, but is happy to speculate that alternative, unspecified caring frameworks will be adequate).

Yet, despite these blind spots, there can be no denying that Brake reflects something in modern public opinion. Her account of the individual emphasizes autonomy, spontaneity, and independence, while minimizing the conditions necessary for the cultivation of genuine liberty, ignoring the inescapable dependencies of human life, and even missing some of the beauty involved in the dependency which love involves.

The deepest problem with Brake’s argument is her cynical account of human nature. Though she asserts that “arguments from nature have no role to play in liberalism,” her case secretly relies on one: she presents human beings as incapable of rising above spontaneity or self-absorption in their relationships.

It is true, as Brake contends, that nature is a contested concept, but that does not mean we cannot distinguish true accounts of human nature from false ones; diverse conceptions of nature are the prerequisite for reasoning about which conception is right. Human institutions should be suited to correct conceptions of human nature—and marriage and the family are human institutions. We must resist Brake’s deceptive claim that we cannot reason about the right conception of human nature simply because there are so many different ones.

Let us speak up on behalf of nature, then. First, Brake would separate the framework of parenting from the framework of marriage—different agreements could govern each kind of relationship. What is the natural reason that these two frameworks might be linked? Human beings tend to love their own, to see themselves as responsible for what is their own. In this case, parents see their children as uniquely their own, which means that they are much more likely to make the personal sacrifices necessary to cultivate a foundation of self-control necessary to pursue rational liberty in their children’s lives.

While there is no doubt that this love of one’s own can cause an unseemly partisanship in some cases (watch a Little League game), this feature is also a sine qua non of the good life. Brake may think that we should combat this feature of human nature or ignore it, but it makes more sense to account for it, to see how it relates to other human goods, and to consider how institutions can take advantage of humans’ natural demeanor toward what they see as their own. This is as true of the family as it is of our governing institutions.

Another way to put this same point is that the love of one’s own encourages human responsibility for an uncertain future. The connection between marriage and parenthood expands the vision of one’s own from one’s self to one’s spouse and one’s children and, perhaps, ultimately, beyond them as well. Brake’s intention is to separate love from responsibility: she divorces love from commitment, and she thinks that human beings are so “fickle and easily distracted and confused” that we cannot control the direction of our love or concern in the future.

Marriage cannot, on Brake’s view, reflect a promise because one cannot promise to control one’s uncontrollable or spontaneous or unforced love. Yet marriage itself, and its connection to children, imposes such a commitment. The promise to love into the future does stabilize the individual and is more likely to make certain thoughts more unthinkable. This shows that Brake is indeed peddling a morality—a morality which encourages fickleness, weak commitments, and a loosening of human self-control projected into the future. She peddles an ethic of irresponsibility that makes a stable love more difficult over time. No wonder she is willing to rest satisfied with “care,” a weak passion or interest that changes with the winds.

Second, Brake’s effort to cultivate human independence obscures the ways in which human beings necessarily depend on each other. She rules out anything more than minimal marriage because all alternatives cultivate dependence. Children are dependent, but she hopes that their dependence on a variety of frameworks will prevent them from depending on any one more than the rest. Economic dependence may be a problem, but making all people equally dependent on the state for their sustenance can solve it.

For Brake, any kind of dependence raises difficulties (she overstates the link between dependence and spousal abuse); however, dependence is also an inescapable fact of life and connected to beautiful, enriching human experiences (as Brake acknowledges in her emphasis on caring). All agree that the dependence marriage must begin in consent; what is created, however, is a relation where two join in a common life in pursuit of a common good. This good is often the raising of children, though it is conceivable that other common goods might be central to marital life. Caring, however, is not enough.

The real questions involved in today’s marriage debate are first, what kind of dependence marriage should reflect, not whether human beings should be dependent; second, how parents can be encouraged to take responsibility for children, not how to separate parents from children; and third, how we can best recognize and mitigate human frailties as we situate the family within a set of legal and cultural institutions.

Brake finds simple solutions to these problems by embracing independence and ignoring human nature. A more mature teaching on the family would confront these challenges and recognize that the family begins in consent and overcomes consent’s individualist standpoint in the building of a common life and in the procreation of children. Love, not caring, makes the family, but love must be understood properly and grounded in that which fosters the procreation and education of children.