Ethics Discussions at PEA Soup: Elizabeth Brake’s “Minimal Marriage: What Political Liberalism Implies for Marriage Law” with commentary by Cheshire Calhoun

36 Replies to “Ethics Discussions at PEA Soup: Elizabeth Brake’s “Minimal Marriage: What Political Liberalism Implies for Marriage Law” with commentary by Cheshire Calhoun”

1. Why restrict marriage to “nondependent caring relationships between adults”? (p. 303) Brake’s answer seems to be this: “children and nonhuman animals cannot make marriage contracts because they cannot make any contracts. No one can marry unilaterally; minimal marriage status designations require consent from both parties, and minors are not legally competent to consent” (p. 310). But she allows that exchanges of marriage rights can be asymmetrical and don’t have to come in complete bundles. So why can’t someone take her marriage entitlement, say, to removal expenses or to bereavement leave and transfer that entitlement to a child or a pet? Why would the child/pet need to consent to be given this entitlement? There are adoption contracts that don’t require the consent of the child. These contracts entitle the child to care by the adoptive parents. So it’s not as if children can’t be parties to a contract in the sense that the contract gives them certain entitlements. And if, in minimal marriage, there is no requirement that the exchange of marital rights be reciprocal or come in complete bundles, I don’t see why the child needs to consent to receiving some entitlement. So I wonder why no one can marry unilaterally. I see why no one can enter into a traditional marriage unilaterally: traditional marriage involves incurring certain obligations and it would be unfair to impose such obligations on someone without her consent. But I don’t see why no one can enter into a minimal marriage (which just amounts to the not-necessarily-reciprocal exchange of various rights and entitlements) unilaterally. If one is closer to one’s pet than to any human, why can’t one designate one’s pet as one’s spouse for the purposes of receiving bereavement leave should the pet die? If one cohabitates with some pet that would require substantial expense to relocate from one city to another, why can’t one establish that pet as one’s spouse for the purposes of receiving relocation assistance from an employer or government agency? Isn’t Brake appealing to some notion of what an ideal relationship is in advocating marriage only for adult-adult nondependent caretaking relationships and not for dependent adult-child/adult-pet relationships? Can’t adult-child and adult-pet relationships “provide psychological benefits that underpin varied pursuits”? (p. 329) I would like to hear more about why minimal marriage shouldn’t be more minimal than what Brake describes.

2. About Cheshire’s comments:
   “In addition, the kinds of psychological support some receive in these less personal relationships may be just as significant to sustaining their confidence and interest in their life plans as the support that others receive from care-taking relationships.”
   “may be just as significant, etc” in the sense of “capable of being just as significant, etc.” or “may be” in the sense “for all we know, they are just as significant, etc”? If “capable of being”, I wonder whether that’s true, for those who are psychologically capable of the kind of adult caring relationships Brake has in mind. Is some evidence that this is so?
   If the latter, does Brake’s argument require ruling out this possibility, if evidence suggests it’s unlikely? Or do you think there is evidence that it isn’t unlikely?
   I’m afraid I haven’t read her paper, but I’m wondering whether she’s relying on no more than the assumption that it is a near universal, brute psychological fact about the vast majority of normal human beings that adult caring relationships have a uniquely important role to play in “sustaining their confidence and interest in their life plans”. If that’s right, then she’s not predicating her argument on some particular conception of the good.

3. I too shared Cheshire’s concerns about “caring relationships” constituting an objectionable appeal to a conception of the good, but from a slightly different direction. In particular, I was thinking about those who might believe attaching benefits to caring relationships in this way may discriminate against their own conceptions of the good. In the U.S. especially there are not insignicant numbers of folks who view themselves as “rugged individualists,” those who make their own way and claim not to need others to pursue it (perhaps even viewing those who do as “weak”). These aren’t necessarily hermits, a case which Elizabeth does address briefly by saying that the Rawlsian “thin theory of the good reflects goods almost, but not quite, universally useful” (330). The addition of “rugged individualists” perhaps presses the “almost” in that formulation.
   Beyond this, though, I wonder whether or not this new minimal marriage view would discriminate against those who have what may be termed a very traditional conception of marriage, namely, arranged marriage. Stipulating that these involve no rights violations or gender discrimination, they certainly aren’t built on top of caring relationships (the parties may not even know one another beforehand). While the latter may be hoped for within the marriage, its primary function is different, it seems.
   Along similar lines, finally, some caring relationships that Elizabeth would include in her rubric could be merely paid arrangements. I’m thinking here of caretakers for Alzheimer’s patients, for example. It’s very difficult to see, though, how this sort of caring relationship would be “essential to developing and exercising the moral powers” (328), either for the patient or for the caretaker.

4. I think the idea of a minimal marriage is a step in the right direction, but I’m not sure it goes far enough. I’m starting to think that the state should compensate for a vast majority of those who are not married. This will probably be true to some degree even if we do extend the notion of marriage to minimal marriages.
   Many liberals (well, luck egalitarians really) accept something like Dworkin’s distinction between option luck and brute luck. Distribution of benefits should not be sensitive to option luck (after all, this is a result of agent’s own choices) but it should be sensitive to bad brute luck by compensating for the harmful consequences.
   Let us accept Brake’s plausible idea that marriages (including minimal ones) bring about many primary social goods for the partners (such as self-respect, increased life-expectency, income, safety, human interaction, and so on). Oddly enough, the state even further benefits the individuals who get these first-order benefits by granting married individuals various legal rights and the like.
   Now, either one chooses to be married or one cannot get married. One necessary pre-condition for marrying is that someone wants to marry one. This much will be true of the minimal caring relationships too. In order to enter one, someone will need to want to care for one.
   If one chooses not to marry, then it is bad option luck not to get the first-order primary social goods and state provided benefits from marriage. In this case, the one has no complaint or a claim to compensation.
   If one cannot marry because no one will marry one, then this is bad brute luck. Even if we extend the notion of marriage to minimal marriage, there will be individuals no one will care for. And, to have qualities that make one not cared for is something beyond one’s control, so it is bad brute luck. As a result, one loses benefits (both the first-order social primary goods and the state provided) through no fault of one’s own.
   This means that if we accept the liberal starting-point according to which morally arbitrary factors (such as having natural qualities that make one unmarriable) should not affect how well one does in one’s life, then the state should actively compensate the unmarriable individuals by providing them some other social primary goods.
   All the notion of minimal marriage does is that it might make more people marriable, and thus more people such that it is their choice whether they get married or not. But, this still does not make the distribution of benefits just altogether. So, at least the minimal marriage proposal should be set up with a back-up compensations for those with whom no one will want to have caring relationships.

5. Jussi: Isn’t your concern less about the minimal marriage proposal and more about widening the scope of “fair equality of opportunity,” such that all citizens are given a chance to develop themselves in ways that will increase their odds that others will want to enter into the beneficial relationships with them? So perhaps the state must provide open access to charm schools, or grooming training, or some such.

6. Thanks for the many challenging and productive comments, and thanks especially to PEA Soup for hosting this discussion, and to Cheshire for her excellent precis. A few initial responses (more to follow! There’s a lot to respond to!):
   Cheshire raises two significant objections to my argument that the state should enact some marital rights – and not merely privatize marriage. Let me address her second point first. I must make the case that the support for caring relationships provided by minimal marriage cannot be attained through private contract nor, as Cheshire suggests, through rights to privacy and association. However, three kinds of minimal marriage rights are not covered under privacy and association rights: first, entitlements to special eligibility for immigration or legal residency (which has concrete implications for, e.g., in-state tuition and taxation); second, entitlements against employers for care-taking or bereavement leave (this would also apply to entitlements to spousal relocation and hiring, which now exist for some U.S. civil servants and members of the military); and, third, entitlements to hospital and prison visiting rights. None of these entitlements are protected by privacy or association rights, as I understand such rights. They require that the relevant institutions (state, workplaces, hospitals, prisons, etc.) extend special treatment to the parties to the relationship, not simply refrain from interfering in their pursuit thereof. But, as Cheshire asks, can a neutral case be made that the kinds of relationships (continuing, non-fungible) which need such rights for protection are really primary goods?
   Cheshire objects (as do Dave and, in a related point, Doug) that my case that caring relationships are primary goods is not itself neutral. First, one minor clarification: in the paper, I distinguish attitudinal caring from material care-taking, and focus on the first as the good supported by minimal marriage (thus the paid care-taker for an Alzheimer’s patient whom Dave describes, in his third point, would not fall under the minimal marriage framework if s/he is only engaged in material care-taking). Thus the claim is that the social bases of attitudinally caring (not material caretaking) relationships are primary goods (I do not mean to imply that the latter are not also candidates for primary goods or that the two do not often overlap; it is just that here I am focusing on the former).
   Janice is correct that I am hoping to ground this crucial point in a psychological claim – specifically, a claim about what humans normally need for the development and exercise of their moral powers and, secondly, for the mental health that underlies the pursuit of projects. Let me focus on the latter point, which I take to be the stronger (for the reasons Cheshire gives – I take her point that we can exercise our moral powers in other contexts). At fn. 87 I cite a survey of psychological studies showing connections between “close” interpersonal relationships and psychological benefits, although I concede that this crucial point would benefit from grounding in a wider, and more expert, survey of the relevant psychological literature.
   However, assuming (as the cited survey claims) that there are generally close connections between close interpersonal relationships and mental health benefits, I can start to sketch a response to Cheshire and Dave. If caring relationships are a (statistically normal) condition for mental health benefits which underpin our pursuits of conceptions of the good in the way that a healthy diet and exercise are a condition for physical health, then their occupying this role does not depend on the agent’s conception of the good. Presumably, for most of us, the factors which affect our mental health are not subject to our choice and do not alter with our conceptions of the good. Notice that I need not deny that for some people, impersonal relationships (i.e. internet chat rooms or philosophy colloquia) can play a similar role. As I point out in the paper, the fact that some people do not need a certain primary good to pursue their conception of the good is going to be a problem for any account of primary goods. A peripatetic monk who takes a vow of poverty does not need money. Dave presses the point by arguing that attributing primary good status to care might conflict with the rugged individualist’s conception of the good. But so, too, attributing primary good status to money will conflict with a communist’s conception of the good.
   However, Dave also raises the difficult question of numbers: if a large number of Americans (and not just a few outliers) identify themselves as rugged individualists, ideologically opposed to close relationships, can primary-good status for caring relationships really be neutral? This raises interesting empirical and philosophical questions. I am doubtful that there really are large numbers of people who choose to eschew caring relationships on such grounds. But the more interesting philosophical question is how close to ‘universally useful’ a good must be to be a primary good. I’m not sure what to say about the question of what percentage of citizenry must be able to use a good in the pursuit of their projects for that good to be eligible for primary-good status – i.e., how many ‘outliers’ a primary good can tolerate. Is there a principled way to determine this? The need to specify what, exactly, principles of justice are meant to secure and distribute is in tension with the incredible diversity of people’s psychological needs and conceptions of the good here. I’ll continue thinking about this.
   Thanks for all the helpful comments – I will respond to the others in a separate post.

7. Elizabeth: Thanks for the thoughtful reply. I do apologize for having misread you (or actually overlooked what you say) on the material caregiver question: for some reason I missed the key line that “caring relationships involve attitudinal care” (327), emotionally significant personal relationships. This doesn’t preclude material caregivers, as you point out, but if that’s all they are, then minimal marriage doesn’t apply to them.
   My main intention above, however, was really, clumsily, to try to get at something Doug also raised, namely, the possibility of assymetrical marriages. Suppose, then, that the physically injured person I’ve been a caretaker for–either as a paid worker or neighbor–develops Alzheimer’s. Prior to this point, I have developed attitudinal care for her, and her for me, and we were in a caring relationship (her loss would now affect me very deeply). Now, however, she is in a demented state. While she may be able to respond to my presence with a smile occasionally, most of the time she doesn’t recognize me anymore. She becomes more and more difficult. Being her caretaker weighs me down tremendously, emotionally and physically.
   The questions, then: (a) is this still a caring relationship? (b) if so, could we now get minimally married (which would open the door to asymmetrical relationships and which would also have a questionable connection to primary goods for either of us)? (c) if not, mightn’t I not have grounds to complain of discrimination against me in favor of symmetrical caring relationships?
   (This is essentially just to extend Doug’s point about entitlements not requiring consent to the case of adult-adult dependent relationships.)

8. David,
   even if the state would have to set up such charm and pruning schools, this would show that widening to notion of state supported minimal marriages is not sufficient to guarantee a just distribution of primary social goods. I also don’t think that such schools would make not marrying a matter of option luck for everyone. Even if one has qualities that make one in principle eligible for minimal marriages, it might be that one never comes across anyone who will want to form such a relationship (even if one takes reasonable steps for doing so). Here too the matter of not being married is down to bad brute luck which should be compensated. And, I’m sceptical about whether any amount of charm schools and pruning will make everyone such that someone will want to marry them. This is probably my pessimism though.

9. Doug –
   Your comments pick up on a really important point; I don’t say anything to justify the ‘uptake’ requirement (i.e. that minimal marriage rights not be transferred unilaterally). The main thought is that such relationships are reciprocal (i.e. a friendship involves some mutuality, although it need not require a reciprocal exchange of rights for its support); ‘uptake’ then becomes a criterion to insure that the relationship meets this condition.
   But could a stalker derive benefits from an unreciprocated obsession? If the benefits depend on delusional beliefs (i.e., that the objection of his affection does respond) this doesn’t seem like a problematic case for me (as presumably his mental health problems diminish his autonomy); but perhaps there are non-delusional cases where someone secretly watches over and benefits another person and derives psychological benefits from doing so. I think I can limit the fallout from the latter case in a pragmatic way: since the minimal marriage rights mostly serve to support relationships in ways that won’t be relevant here, the only relevant one is bereavement leave. And since bereavement leave will presumably be capped for efficiency, it doesn’t seem to me wildly problematic if the ‘secret guardian’ wants to use his allotment should this person die.
   A second reason for the uptake requirement is that of costs to the recipient of a unilateral transfer. For some such transfers there might be no significant cost – for instance, if Judith Jarvis Thomson wants to transfer hospital visiting rights unilaterally to Henry Fonda, this doesn’t seem to burden him (he doesn’t have to use them). But in other cases unilateral transfers might cause administrative chaos – if, for example, Judith Jarvis Thomson were to designate Henry Fonda a Boston resident – or deprive the transferee of the opportunity to be the partner in a transfer which is numerically restricted – e.g., relocation expense eligibility might be capped for reasons of efficiency, and recipients tracked to prevent fraud, etc. (I am referring to Thomson’s example in her ‘Defense of Abortion’, in case anyone doesn’t know that article!)
   With children, there is another set of issues. Parental rights generally give rights to exclude others from interfering. So here, at the minimum, there would need to be coordination with parental rights and presumably, parental consent. And for child welfare, presumably we would want more rigorous screening of applicants. Finally, if an adult proposes a continuing relationship with a child, it might be desirable to have, at least, some minimal obligations imposed. (For instance, since continuity is important for children, we might want to burden the adult’s exit.) Because of children’s vulnerability, it seems better to place adult-child relationships under a parenting framework which coordinates and establishes responsibilities (an idea I describe briefly in the paper).
   But I take it the deeper question is why (non-parental) adult-child or adult-pet relationships should not be accorded the same status as adult-adult caring relationships. With pets, my suspicion is just that deriving profound self-esteem and significant mental health benefits from pet interaction is psychologically abnormal (not to deny that there may be some benefits), and (if this is correct), this returns us to the numbers question with which I finished the last post.
   More on asymmetry in response to Dave’s latest post.

10. Iussi –
    Thanks for the comments. I second what Dave said, with a modification and some additions.
    On charm school – Legislators would have reason to create institutions promoting possession of non-distributable goods where society can influence that (e.g., public health messages – ‘smoking kills’). But there’s a difference between such public health initiatives and charm schools – there simply isn’t (to my knowledge, anyway!) the same kind of evidence regarding how to form a caring relationship as there is for, say, the health effects of smoking (interestingly, and I cite this in the article, one study of US marriage promotion policies finds that marital therapy leaves 25% of couples worse off and post-therapy divorce rates remain high – see fn. 44). Increasing people’s relationship fitness might not be well done by government programs. Having said that, one function of schools is socialization. If there were solid evidence regarding educational techniques likely to make kids better able to form relationships later in life, these might be implemented in schools just as hand-washing lessons are for public health reasons.
    On compensation – Two points. First, it’s going to be difficult to distinguish brute and option luck here. Say someone is so annoying, rude, or thoughtless that he drives away potential friends and lovers – should he be held responsible for that? If so, this isn’t brute luck. But (point two), there is one case where it is clearly brute luck that someone choosing a relationship is unable to pursue it – if the loved one dies. Here your comment prompts me to rethink the minimal marriage rights. Current marriage law typically includes a right for spouses to sue for compensation in the wrongful death of a spouse. I did not include this among the minimal marriage rights because, I thought, such a right illegitimately assumes financial dependence. But your comment makes me see that such a right should be included, since losing a spouse does not just involve losing the spouse’s financial support, but involves losing the good of the relationship. Thanks for the prompt!

11. thanks Elizabeth!
    I’m with you on charm schools. I’m fairly sceptical whether marriage prospects could be enhanced in this way – this was David’s idea. All the more reason to think that there’s a need for compensation.
    I’m also with you on the epistemic problem. This is a standard issue with laziness and industriousness in work success. Is this something one is responsible for or can it be a trait over which one has no control?
    Yet – being annoying, rude or thoughtlessness are not the only reasons why one might not be getting marriage proposals. Clearly there are many obviously natural features that have same effects. And, as I said in response to David, this might not always be because of one’s qualities but rather with just brute bad luck in meeting people. There are many reasons for why someone might not end up in marriage and not all of them are down to choices for which one is responsible.
    I’m less certain about the death of a spouse cases. It suggests that one could get the primary social goods only with the specific person one was married before. In some cases this is true, and the legal rights should compensate for this in all kinds of marraiges. Yet, it is often possible to remarry.

12. On the asymmetry issue –
    As I said above, I never wanted to deny that material care-taking is a primary good; indeed it seems easier to make the case that such care is a good (for the cared-for) than that attitudinal caring relationships are. This suggests – and I don’t develop this in the paper for reasons of space, but also because excellent work has been devoted to this in recent years – the need for material care-taking or dependency frameworks (including but not limited to parenting frameworks). Such frameworks would support (unpaid) material care-taking relationships of the kind Dave describes through minimal marriage rights but also, among other things, by specifying responsibilities and privacy rights and ensuring equal opportunity for care-takers (see, e.g., Anne Alstott’s No Exit, Martha Fineman’s The Autonomy Myth, Eva Kittay’s Love’s Labours). Such structures are, of course, of special interest to feminists because women still tend to do the lion’s share of such care-taking. Because such material care-taking, if asymmetrical, has significant costs for the care-taker, engaging in it looks less like a primary good for the care-taker; but the framework which protects the relationship for the benefit of the cared-for also has the effect of protecting it for the benefit of the care-taker who derives psychological benefits from it.
    As I suggest in the paper (328), one consideration in favor of minimal marriage rights is that they can provide continuity as relationships shift from non-dependence to dependence, as Dave describes in his latest example.
    So, in answer to Dave: (a) It’s a care-taking relationship; if she doesn’t recognize you, it seems defective qua caring relationship given the assumption that these require mutuality (this is, by the way, still a psychological assumption about the kinds of relationships which enhance mental health in ways that enable us to pursue projects). (b) No, but had you been minimally married before the rights could facilitate your designating the relationship as a material care-taking relationship (not that a prior minimal marriage is a condition for this). (c) I don’t see why, as you would have access to rights supporting your relationship, but in a context which also recognizes i) you now have certain obligations (and some corresponding privacy rights) due to the cared-for’s vulnerability and ii) you might have equal opportunity rights to compensation.

13. Hi Elizabeth. Thanks for the very thoughtful article!
    I have three follow-up questions, the first about the implications of your “argument from primary goods.” If I’m understanding things correctly, the paper invokes the notion of primary goods in the political sense as that which is (near universally) necessary for one to develop and exercise the two moral powers, a sense of justice and a conception of the good. The paper then argues/assumes that caring relationships are (near universally) necessary for one to develop and exercise a sense of justice and a conception of the good, and, hence, the state has a legitimate interest in recognizing and supporting such relationships.
    Now, whereas Cheshire’s latter point seems to be that other kinds of relationships (e.g. with one’s teammates, clubmates, etc) would be sufficient for one to develop and exercise a sense of justice and a conception of the good (and, hence, that additional reason needs to be given for singling out relationships in which one is known in their particularity), I’m wondering about the implications of there being other kinds of relationships that are also nearly universal necessary. Specifically, I’m wondering whether “teammate relationships” of the kind Cheshire mentioned—relationships among individuals working as part of a team or group for a common purpose. Assuming (i) such relationships do not require one to know other teammates “in their particularity” and (ii) there is evidence that being part of such a relationship network is nearly universally necessary for one to develop and exercise a sense of justice and a conception of the good—both of which I would think are the case—wouldn’t your reasoning apply to these relationships as well? And so wouldn’t the state have a legitimate interest in recognizing and supporting, by way of marriage rights, teammate-type relationships? (Don’t take ‘teammate’ to literally as applying to those within sports teams—I’m thinking of the kinds of relationships that develop in good work environments, in good classrooms, etc. in addition to sports teams.) If so, then there would be nothing special about singling out relationships in which a person is known in his or her own particularity, and marriage rights would seems to be distributable to individuals engaged in a much larger variety of relationships.
    The second question is also about the relation between (attitudinal) adult-adult caring relationships and primary goods. Such relationships, I’m assuming have two parts: caring for, and being cared for. Even assuming good evidence that caring relationships are near universally necessary for developing and exercising a sense of justice and a conception of the good, is the evidence (or intuition) clear that caring for is necessary? My own intuition is that, to the extent that caring relationships are necessary for the development and exercise of the two moral powers, it is being cared for that is necessary, and not necessarily caring for. (My intuitions are hightened when I consider your oft-used analogy between caring relationships and self-respect.) Do you share these intuitions? If so, wouldn’t that lead us back to Doug and Dave’s initial concerns about your focus on symmetrical relationships?
    The third question is just a quick follow-up on Dave’s earlier question regarding some very traditional marriages, such as arranged marriages, many of which do not even require that the individuals know each other, let alone care for each other or share a history. I’m assuming that these kinds of marriages would, by implication of your arguments, be ruled out by minimal marriage and that you’re just fine with this implication. But I just wanted to make sure.
    Thanks again for the thought-provoking article!

14. Elizabeth,
    Thanks for the reply. You write:

    But I take it the deeper question is why (non-parental) adult-child or adult-pet relationships should not be accorded the same status as adult-adult caring relationships. With pets, my suspicion is just that deriving profound self-esteem and significant mental health benefits from pet interaction is psychologically abnormal (not to deny that there may be some benefits), and (if this is correct), this returns us to the numbers question with which I finished the last post.

    Why do you suspect that “deriving profound self-esteem and significant mental health benefits from pet interaction is psychologically abnormal”? I think that many people gain a great deal of self-esteem from taking care of their pets. These relationships make them feel loved and needed and, from that, they derive profound self-esteem. What’s abnormal about that? And aren’t there a number of studies showing that relationships with animals have a number of mental health benefits? I’m mainly going off of media reports regarding the use of animal interactions in prisons and long-term care facilities as well as some of the anecdotal evidence I have from my own experience with pet owners. Of course, I know that such evidence is potentially unreliable. But have you done any research into this, research that has led you to suspect that “deriving profound self-esteem and significant mental health benefits from pet interaction is psychologically abnormal”? My suspicion is different. I suspect that there are quite a few people for whom their relationships with their pets are among their main caring relationships. Do you have any reason to think that these people are less psychological normal than, say, those who derive profound self-esteem and other mental health benefits from their urban tribalist or polygamist relationships? And isn’t it the attitudinal caring and not the object of the caring (be it a friend, a sexual partner, a pet, a child, a member of one’s urban tribe, etc.) that’s essential to gaining the self-esteem and other mental health benefits associated with the relationship? And if it’s the caring relationship regardless of its composition that’s a statistically normal condition for various mental health benefits, why do you want to restrict “minimal” marriage to specific sorts of caring relationships?
    And if you want to insist that the mental benefits are at least normally tied with reciprocal caring relationships, then I want to hear more about what you take the reciprocity to consist in and why you think that adult-pet relationships are not reciprocal. Do not pet-owners feel loved by their pets? Surely, reciprocity doesn’t have to involve material care-taking.
    And what about (non-parental) adult-child caring relationships? I have in mind here live-in, paid child care-takers. I take it that these people often provide more than just material care. And I suspect that many of them gain a great deal of self-esteem and other mental health benefits from the attitudinal care that they have for the children that they care for on a daily basis. Do you think that those who derive profound self-esteem and significant mental health benefits from these relationships are psychological abnormal? And if so, why? And if not, why shouldn’t they be able to designate the children whom they care about as their spouse for the purposes of receiving, say, bereavement leave–assuming that they also work at another job from which they would need bereavement leave?

15. Maybe it is because the term “marriage” is still part of the conception of minimal marriage. Or maybe it is because I am troubled by the idea that the state should support certain types of relationships, which implies that some are not supported. But there is still something that doesn’t feel quite right to me – as a single by choice and an anti-singlism activist.
    Overall, I think it might make sense to step back a little further and ask: What are we trying to accomplish? It seems fuzzy to me – and maybe that’s my activist hat causing trouble to my brand new philosophy one – to claim that caring relationships somehow contribute to the good and should thus be supported by the state. Elizabeth lists three issues that are not covered by other rights: immigration, leave from work, and visitation rights. None of these need to be tied to any kind of relationship but could benefit from improvement. What is the issue with immigration? We want to ensure that people who care for each other can be together without having to worry about potential deportation. So, maybe rather than (minimal) marriage rights, we could include something along those lines in immigration petitions (e.g., show how connected you are here, incidentally this could also include the team memberships). What about leave from work? Again, the underlying issue is really being able to take time off from work without losing one’s job. Maybe a minimum number of vacation days would be a better way to take care of that. Visitation rights are particularly interesting because we seem to focus on the right. I have a way shorter list of people I do not want to see if I were hospitalized, so maybe there should be a “stay away” registry and the default assumption is that anybody who wants to who is not on that list can visit.
    These might not be the answers but I would like to encourage thinking beyond expanding the rights of marriage to more people. Instead, I suggest (as Nancy Polikoff and the Beyond Conjugality commission have done, too) that we step back and ask: What good are we really trying to support here? Granted, this makes things more complicated but I think that ultimately this would be more just – even to the hermit…

16. Jussi –
    I take your point that someone might just have brute bad luck in not meeting people, although this still seems to pose an epistemic problem. Also, remember that the ‘minimal marriage’ relationships include friendships so are less limited (I think) by the kind of ‘natural features’ you have in mind which might preclude relationships (actually, I’m not entirely sure what features you have in mind!).
    On wrongful death – the thought was that spouses would have a right to sue the person who caused the death, not compensation from the government (just to be clear). Since the primary good is the relationship with the particular other, that particular relationship is irreplaceable; and even though the widow/-er might find another relationship later, this doesn’t compensate for the loss of the previous good. (Just as if someone torches your car, your right to sue them for compensation wouldn’t be vitiated because you might later buy another car even without compensation.)

17. Hi Doug –
    First of all, let me clarify my previous comments. I was not saying that deriving significant psychological benefits from child-rearing or child-mentoring relationships was abnormal; what I said was that such relationships, if structured in law, should be structured through a parenting framework, not minimal marriage, for the reasons I gave above, to wit: coordinating rights of adult care-takers, mentors, or friends of children with parental privacy rights, establishing what legal responsibilities, if any, such adult friends or mentors should have, and screening such adults for child safety. The thought was that a parenting framework would not be limited to specifying parental rights and responsibilities but would also coordinate the rights and responsibilities of adult care-takers, friends, or mentors of children who are not parents. So yes, I am open to the possibility that such adults may have a structured legal role vis-a-vis children, but it would need to be enmeshed in a different legal framework. Nannies would clearly fall under such a framework, and it seems plausible that, as you suggest, such a framework would include bereavement leave.
    On pets: Let me clarify: I agree that it may be normal for pet owners to derive health benefits (physical as well as psychological) from pet ownership; my scepticism concerned the profundity and significance of such benefits, as well as the numbers of people whose most significant relationships are with pets as opposed to with other humans (the latter category including the ‘traditionally’ married or partnered, polygamists, friends, and urban tribalists). I haven’t done research on pets and mental health (other than, like you, seeing news reports on such studies). But to try to give an answer to what I think is your crucial question, you ask:
    “And isn’t it the attitudinal caring and not the object of the caring (be it a friend, a sexual partner, a pet, a child, a member of one’s urban tribe, etc.) that’s essential to gaining the self-esteem and other mental health benefits associated with the relationship?”
    My armchair intuition here – and I think Dan pushes this as an objection, which I’ll try to answer in a separate post! – is that being cared for as a particular other is just as important as caring for another in producing such benefits. And here I mean attitudinal caring, not material care-taking. To take myself as an example, taking care of my cat does enhance my well-being, I am sure; so does taking care of my plants, for that matter. It is true that my cat recognizes me and responds to me positively as a source of food and warmth; but to all appearances he is completely unable to comprehend any of my interests, distinctive personal characteristics (except basic physical ones), preferences, etc. In other words, I don’t think he cares for me as a particular other. Further, there is a complete inability to communicate most of the things that are of interest or important to me, and I suspect this would be true for most humans (unless their interests were limited to hunting mice and birds, and eating cat food; even then, they couldn’t communicate thoughts on the topic).
    I suspect that what provides a lot of the psychological benefit of interpersonal relationships is not just caring for the other, but the enhancement of self-esteem one gets when the other appreciates one’s projects or characteristics, or simply cares about them (a friend might not understand the details of your latest article, but his willingness simply to listen to you talk about it, and the sense that it is important to him, might be beneficial). And (this next point is partly in response to Dan) I also suspect that it enhances the psychological benefits when one cares for the person who is caring for one – that is, it matters more when the person one cares for appreciates your abilities than (in most cases) when a total stranger does. There’s an additional cognitive dimension to continuing relationships – not just can humans normally have better knowledge of one another than pets can have of their humans, but over time in relationships people develop a detailed knowledge of the other which again, I suspect, helps to provide a beneficial narrative continuity and sense of being known.
    I realize this answer is going to leave me open to objections not just from the pet lobby, but from some disability theorists. But, in a nutshell, my answer to your question about reciprocity is that the significant reciprocity in reciprocal caring relationships between humans involves knowledge of one another and communication greater than that which can be had with pets, and that this reciprocal knowledge and communication accounts for some of the psychological benefits of such relationships. Again, though, this points to a need for further research in the psychological literature.

18. Rachel –
    Thanks for your comments. One motivation for the minimal marriage proposal is the thought that recognizing a diversity of relationship types would help to combat hetero-normativity, including the assumption that ‘traditional’ marriage-like relationships are more valuable than friendships or more fluid arrangements, so in that sense I would hope that it could help fight singlism as well, where singlism involves discrimination against those not in ‘traditional’ marriage-like arrangements. A ‘single’ might be involved in many caring relationships (I take it that ‘single’ usually means ‘not married’ or ‘not partnered’, not ‘not involved in any relationships’?), and so could use minimal marriage rights. Of course, you might still raise your concern vis-a-vis the sub-category of singles who are relationship-free (like Dave’s rugged individualists, albeit with a different emphasis).
    I want to separate the practical question you raise from the deeper question, which you also raise, of which relationships we should recognize as primary goods. Practically, you raise the question of why we need to designate any category of relationships as ‘counting’ for legal purposes (“None of these needs to be tied to any relationship …”). But we need some specification of which relationships count unless any relationship (an economic transaction, mail-order brides, a stranger seen once across a crowded room …) could count. You describe an immigration petition which requires the applicant to demonstrate a connection – but what criteria regarding this connection will the immigration official use to make a decision? In fact, if the criterion is that it be a caring relationship, then your description sounds to me just like the implementation of a minimal marriage right! (This point about designation will also apply to relocation and spousal hiring policies.) With bereavement and care-taking leave, the thought is that an employee would need extra to the normal vacation entitlement (like sick leave – one might not use it, but it’s additional to the vacation entitlement everyone has), and so, again, there is a need to designate certain relationships as significant enough to merit such leave. Finally, visiting rights are on our cultural radar, I think, because of the horror stories of long-term same-sex couples who have been unable to visit each other in hospital. Because in certain circumstances hospitals limit visitation to ‘family members’, which is sometimes understood not to include friends or same-sex partners, the entitlement would ensure that significant friends or same-sex partners would have a right to visit in such cases.
    The good to be achieved by supporting such relationships is the benefit to the parties to them – first, the psychological and material benefits which support those parties in pursuit of other projects; second, their ability to develop and exercise their moral powers in those interactions (see 328-329).
    Your other question about which relationships should be recognized overlaps, as you point out, with Dan’s, which I will address in a separate post!

19. Elizabeth (and Doug),
    Just a quick comment in anticipation of your response to my earlier questions: Granted a person derives important health and psychological benefits by caring for others (or pets). But the question, I take it, is not whether there are such benefits, but whether these benefits of caring for others is (near universally) necessary for the development and exercise of a sense of justice and a conception of the good.
    And then there is the question of what the implications are of there being other kinds of such relationships.

20. Elizabeth,
    To take myself as an example, taking care of my cat does enhance my well-being… [But] I don’t think he cares for me as a particular other.
    That’s because you have a cat. You should try having a dog as a pet. 🙂
    Seriously, though, I find your response mostly convincing. My remaining worry is that in assuming that it’s not the enhancement of self-esteem that one gets from, say, being the caretaker of a pet or from, say, being the recipient of romantic love, but “the enhancement of self-esteem one gets when the other appreciates one’s projects or characteristics, or simply cares about them…” that is the sort of psychological benefit that the state should be in the game of promoting, you’re making an objectionable appeal to a particular conception of the good.
    So I agree that there are additional psychological benefits that come with having that sort of reciprocal relationships that you’re talking about but there may also be additional psychological benefits that come with having a relationship that involves romantic love and/or sexual intimacy. Yet you don’t think that state should make the latter a requirement of marriage but you do think that the state should make the former a requirement of marriage. I suspect that there are very few people who can maintain mental health without some sort of caring relationship, but I’m skeptical that people need the sort of reciprocal relationship that you’re talking about. Moreover, it’s seems to me that there are a fair number of people who don’t value that sort of relationship in the way that you and I do, people who just prefer to interact with pets as opposed to people.
    But I’ll need to think about it more. Thanks for any interesting article and an interesting discussion.

21. Dan –
    Thanks for your questions.
    I say something on your second point in response to Doug (above). My intuition is that caring (attitudinally) for someone who cares for you has benefits which merely being cared for (attitudinally) would not. Examples of the latter, I suppose, might be cases of unrequited love or where one party is keen to be friends with someone who is completely indifferent, and it seems plausible to me that in such cases the benefits to the cared-for would be limited. It seems to me that where care is reciprocal, each would gain more because they care about (a third kind of care!) the other’s caring for them (to return to the example I used above in response to Doug, if my friend’s interest in my work benefits me because it matters to him, surely part of the reason his interest is beneficial is that he matters to me).
    On arranged marriage (and sorry for letting this point drop!): My proposal would seem to rule them out because there is no existing caring relationship. But I can see an argument for allowing some arranged marriages, although it depends on a view about minority cultural rights which I don’t endorse (I’m not sure I reject it, either, I just don’t have considered views). Here is the idea: for some cultural or religious groups, the only way to enter a significant caring relationship is through marriage. (Of course, it might be objected that members of such groups could form friendships instead, but set this aside for now.) So long as the marriage is intended to produce such a relationship, there might be a minority cultural right to establish a caring relationship in this way; this is just the way, in this culture, such relationships are created. Such a special right would be conditioned on the purpose of the marriage being to create such a relationship, and the fact that within such a culture the only way to establish such a relationship is through marriage. But on a practical note, couldn’t members of arranged marriages write to one another beforehand and thus begin to establish a caring relationship?
    Finally, on teammates – First of all, I want to be sure we are using “in their particularity” in the same way, because I would assume most team members do know one another in their particularity – i.e. colleagues in an academic department of 20 or members of a sports team of 20 people who play together for a school year would typically come to know one another in their particularity. Classmates in a class of 40 which meets only 3 hours a week, though, probably wouldn’t. Knowing another person in their particularity is a matter of degree, of course; but it simply means knowing the other’s characteristics, history, preferences, interests. I suspect that in many cases the kinds of beneficial interactions you have in mind are actually cases of friendships, where the friends could invoke minimal marriage rights.
    Group membership may be beneficial in a different way which does not depend on personal particularities, knowing one another, and caring for one another. But even if we established that group membership was a primary good (and I’m not conceding this, though I think it is an interesting idea!), the conclusion that minimal marriage rights should be more widely distributed does not follow. Those rights are designed to protect continuing caring relationships between particular others. Protecting groups would require very different rights, depending on the nature of the group – a philosophy colloquium, an academic department, a sports team, a church, an AA meeting, a workplace, a university. For many of these groups, rights to association and privacy would, as Cheshire suggests, suffice. But minimal marriage rights wouldn’t be relevant here, because – I assume – what matters as an entity is the group, not relationships between particular individuals within it, and the group may persist in the relevant sense while individuals exit and enter. If by hypothesis the beneficial relationships here are not caring relationships between particular others, then the rights designed to protect such relationships would not be needed to attain the benefits. Particular people would be (in this very limited context!) fungible.

22. Hi Elizabeth,
    About caring for/being cared for/caring about: Your response is what I was anticipating with my comments just above at 05:43am. The point there is that Doug, and you in some of your responses, appear to be assuming that your own view is that any kind of relationship that is beneficial to one’s mental or physical health is appropriately/ought to be recognized, supported, and protected by marriage laws. Of course that’s not your view as I understand it. Rather, your view assumes the following:

    (A) Any relationship that is near universally necessary for the development and exercise of a sense of justice and a conception of the good is appropriately/ought to be recognized, supported, and protected by marriage laws.

    That’s why I’ve been wondering why you just haven’t responded to Doug like this: “Caring relationships with one’s pets are not nearly universally necessary for the development and exercise of the two moral powers.” And that’s why I wanted to press the issue again about whether you think caring for another–or, perhaps in light of recent responses, caring for another who cares for you–is near universally necessary for the development and exercise of a sense of justice and a conception of the good. Do you think that, or have good reason to think that?
    (Perhaps you’re relying on a particular conception of the good such that caring for another who cares for you is intrinsically good?)
    About this:

    But even if we established that group membership was a primary good (and I’m not conceding this, though I think it is an interesting idea!), the conclusion that minimal marriage rights should be more widely distributed does not follow. Those rights are designed to protect continuing caring relationships between particular others. Protecting groups would require very different rights…

    First, the suggestion wasn’t that group membership is a primary good. It was that certain kind of relationships–teammate relationships in which a number of members work together to achieve a common goal–are a primary good. (Many of these relationships may not even require being in any kind of official group.) I don’t know that I agree with this, but it is certainly plausible that engaging in such relationships is near universally necessary for developing and exercising the two moral powers. If so, and if I’m right about your assumption (A), then it would follow that such relationships–not the existence of groups–are appropriately/ought to be recognized, supported, and protected by marriage laws. (Which, I’m assuming, is a reductio.) And, though it’s true that one might also forge friendships with some or most of one’s teammates, it is certainly not true that teammate relationships require friendships with or caring for all of one’s teammates.
    Second, you say that “those rights are designed to protect caring relationships between particular others.” But this, of course, is your conclusion gained by way of assumption (A) (along with the claim that caring relationships are an instance of the kind of relationship specified in the antecedent.) The suggestion has been that assumption (A) allows for other kinds of relationships to be recognized, supported, and protected by marriage laws, leading to the question whether such implications provide a kind of reductio, or at least food for thought.

23. Dan –
    Sorry, I think my reply to you crossed paths with your preemptive response in the ether!
    I’ve avoided appealing to the “nearly universally necessary” claim because in the discussion with Dave above I was prompted to reconsider what “nearly” means here, exactly (or “normally,” which Rawls also uses in describing the primary goods’ usefulness), and I’d like to think about that more. But in responding to Doug I did briefly raise the issue of numbers, to wit, my scepticism about how widespread such benefits are.
    As I said above, I’m relying on a survey article for the psychological claim, and I concede that defending this claim will require a more extensive and more expert (i.e. with the help of a specialist) look into this literature. As Rachel might point out in line with her comments above, some anti-singlism theorists have raised concerns about the methodology in some studies purporting to show the benefits of marriage (e.g., Bella DePaulo in _Singled Out_). The article I draw on includes friendships as well as marriages in its category of ‘close personal relationships’, but it doesn’t go into the reciprocity question; that response to Doug was, as I said, my armchair intuition. So this has been very helpful in terms of pointing out specific topics for further research!
    I still have questions about the teammate proposal. I’m not sure exactly how you mean to distinguish teams from groups, which could also be described as “a number of members working together to achieve a common goal.” It still seems to me that the relationships with other teammates are less likely to be psychologically important than the pursuit of a common goal and the phenomenon of belonging. (The question is the source of the alleged benefit.) The possible variability of ‘teams’ in size, structure, interactivity, duration, etc., makes me think that you’re not picking out one kind of relationship which is a, nearly universally necessary, means of developing and exercising one’s moral powers, but rather, that the good here (assuming there is one) is that of working with others towards a shared goal, in the course of which interpersonal relationships may sometimes be salient. In other words, it seems like there could be teams which yield the alleged benefits and in which interpersonal relationships are relatively unimportant (religious orders, teams with changing memberships, teams working remotely). (This is, I think, to take the response you suggest!) And it seems to me that such group membership is generally supported by freedom of association rights. But once again, this is precisely where more psychological data would be useful. Thanks for the challenging point – this is definitely a lot of food for thought!

24. Hi Elizabeth,
    Thanks again for all of the thoughtful work, including here in this discussion. Just a couple of comments to answer your questions, but please don’t feel the need to keep the discussion going. I add them only to try to give you a better sense of what I have in mind.
    I’ve been trying, apparently badly, to focus on what I’ll now call “teamwork” relationships, to avoid focusing on teams or groups. It’s the relationships that I’m trying to get at. What is a teamwork relationship? A relationship among two or more individuals each performing a functional role in order to achieve a common purpose. Nothing mysterious I don’t think. What is the good in such relationships? Well, what’s the good in caring relationships? I’m assuming your answer is: they are primary goods, that is, they are (near universally?) necessary/important for developing a sense of justice and a conception of the good. That what I suggest is the good in teamwork relationships. They are primary goods, that is, participating in such relationships is (near universally?) necessary/important for developing and exercising these two moral powers.
    So, your argument:

    (A) Any relationship that is (near universally?) necessary/important for developing a sense of justice and a conception of the good is appropriately/ought to be recognized, supported, and protected by marriage laws.
    (P) Caring relationships are such relationships
    (C) Therefore, caring relationships is appropriately/ought to be recognized, supported, and protected by marriage laws.

    An analogous argument:

    (A) Any relationship that is (near universally?) necessary/important for developing a sense of justice and a conception of the good is appropriately/ought to be recognized, supported, and protected by marriage laws.
    (P) Teamwork relationships are such relationships
    (C) Therefore, teamwork relationships is appropriately/ought to be recognized, supported, and protected by marriage laws.

    You’ve also replied that “The possible variability of ‘teams’ in size, structure, interactivity, duration, etc., makes me think that you’re not picking out one kind of relationship…” But of course, caring relationships are also quite variable with respect to most of these characteristics, so that should be no objection to an analogy with teamwork relationships.
    Again, thanks so much for all of the thoughtful replies.

25. Elizabeth Brake’s article raises many fascinating issues. In this comment, however, I just want to address the criticisms that she makes of my
    article, “The Fundamental Argument for Same-Sex Marriage” (Journal of Political Philosophy 1999).

    1. I claimed in my article that when the state creates the institution of monogamous marriage, and does not create various alternative legal relationships that have sometimes been advocated by
    theorists, it is not plausible that the state is doing any serious injustice to anyone, because – as I wrote – “no one in modern Western society seriously wants to enter one of these alternative legal relationships” (p. 239).

    Brake describes this comment as “dismissive”. In making this claim, she says, I ignore “widespread calls in the queer community for recognition of adult care networks, as well as similar demands made by” various others. But she does not give strong evidence that there are such “widespread calls” for legal recognition of “adult care networks” in the queer community or anywhere else. I do not believe that such calls are “widespread”. I have been a reasonably attentive reader of the gay press for at least 20 years, and I spent several years as an activist on the issue of same-sex marriage while I was living in Massachusetts. I have to say that I encountered extraordinarily few people (Peter Tatchell is practically the only example who springs to mind) whom I took be serious about calling for the legal recognition of such “adult care networks”.

    Of course, she is quite right that many theorists and political activists have criticized the institution of marriage: she gives a long list and cites many sources. But it seems clear that these activists and theorists are not calling for the creation of alternative legal institutions in which “adult care networks” are recognized by the civil law of the state. They are generally calling for some much more radical abolition or transformation of our current legal institutions altogether. (It is not plausible, I believe, to interpret bell hooks as a Rawlsian liberal!) So I do not believe that the comment that I made was unacceptably “dismissive” as Brake seems to imply.

    2. Brake also makes two criticisms of the neutral justification for marriage law that I tried gave in my article. I claimed that the institution of marriage gives citizens the power to make choices (such as the choice to marry, or indeed the choice not to marry) that they may have an extremely serious (non-frivolous and non-malicious) desire to make. Such serious desires, I claimed, should be respected; and the state has good reasons to help citizens to fulfil such desires, if it can do so without injustice and without causing harm to others. I also defended a complicated theory of the “social meaning” of marriage that helped to explain why the desire to marry was typically a serious desire of this sort.

    Brake has two objections. First: “Preferences are shaped by existing social practices and so may reflect oppressive power structures. Thus, satisfying wants
    regarding marriage could be in tension with equal opportunity.” It is certainly true that satisfying some wants that some citizens have would be “in tension
    with equal opportunity”. But I tried to argue (in the passage that Brake criticizes above) that satisfying the desire that so many people have, to have
    the power to marry the person of their choice, is not in tension with equality of opportunity. So this first objection seems to have no force whatsoever (unless Brake can adduce some further evidence that supports the suggestion that satisfying this desire is “in tension with” equality of opportunity).

    Secondly, Brake endorses a point that was apparently made by an anonymous reviewer for Ethics, that “minimal marriage better
    accords with citizens’ diverse preferences than current marriage law does.” I do not believe that this point is correct. According to the account that I gave in my article, the desire to have the power to marry is a response to what I called the “social meaning of marriage”. To some degree, then, watering down or blurring the social meaning of marriage will make marriage less effective at satisfying this desire. By entering a relationship that has a totally indeterminate social meaning, a couple cannot so effectively communicate to the rest of their community how they wish their relationship to be interpreted.

    Anyway, as I argued, it is really quite striking how little demand there is in the contemporary
    West for the kind of polygamous marriage institutions that Brake advocates. As I wrote in my article (p. 242), “Even among Mormons and Muslims living in the West, there is remarkably little demand for polygamy.” So I do not believe that there is empirical evidence that supports the claim that Brake makes (endorsing the anonymous reviewer’s point) that her institution of “minimal marriage” would satisfy citizens’ diverse preferences than the kind of marriage institution that I envisaged in my article.

26. Perhaps I should clarify the second half of the first point (1) that I made above.
    On pp. 320-22 of her article, Brake cites various criticisms of the way marriage works in Western society today. The main point that I was trying to make above is that it is far from clear that these criticisms are best interpreted as calling for legal recognition of “adult care networks” of the kind that she is advocating.

    • Some of these criticisms seem to be calling for the complete abolition of marriage and of any intrusion by the contemporary state into our intimate caring relations. (Neither Brake nor I are really in agreement with these critics.)
    • Some of these criticisms seem to be focusing on culture rather than law: e.g. the cultural phenomena that lead to monogamous heterosexual marriage’s being widely regarded as an ideal. (Both I and Brake are entirely sympathetic with these critics, but it is not clear to me that this has anything to do with the legal recognition of “adult care networks” or the like.)

    At all events, it is not true that I was writing “as if critiques of the central relationship ideal reflect academic theories removed from real life”, as Brake complains (p. 322). In the passage that she criticizes, I was not discussing such “critiques” of cultural “ideals” at all. I was trying to reply to the idea that it is a serious injustice that current law gives legal recognition to married couples, but not to “best friends”, etc.

27. Hi Ralph,
    First of all, let me say that your article is one of the best philosophical essays on marriage law I’ve read, in part because it delves into the question of why a liberal state should legislate marriage in the first place, and my criticisms of it are meant in the spirit of engagement with what is, in my view, one of the strongest defenses of liberal marriage law on offer – but one which I still think is problematic. Second of all, I apologize if my choice of words gave the impression that I thought you were “dismissive” of a social movement in which you have been active.
    1. Let me explain what I mean to refer to when I cite a widespread call for recognition of alternative family forms. (Again, to be fair to you, my criticism of you for ignoring such calls is in one respect anachronistic, as the urban tribalist and quirkyalone publications postdate your article.) Paula Ettelbrick, in her classic 1989 article, “Since when is marriage a path to liberation?” criticizes same-sex marriage, and one of the objections she raises is that it would take away “the incentive to continue the progressive movement we have started that is pushing for societal and legal recognition of all kinds of family relationships.” She gives specific examples of a legal right allowing a partner to stay in a rent-controlled apartment after his partner’s death, and recognition of a group of two lesbians and two gay men as a family unit. She also calls for “the law to acknowledge that we may have more than one relationship worthy of legal protection.” (Unfortunately, I’m traveling and don’t have my copy of this article with me; but the original publication details in _Out/Look: National Gay and Lesbian Quarterly_ are cited in my article at fn. 52, and these quotations can be found in an anthology published on google books, _Families in the U.S._, ed. K. V. Hansen and A. I. Garey, Phil.: Temple Press, 1998, at 484.) Ettelbrick also suggests (483 in the google books version) a transformation of marriage from an institution regulating property and a narrow set of relationships to one recognizing many different kinds of relationships.
    I take it that your point is that Ettelbrick, and other critics of same-sex marriage who oppose the recognition of one ‘legitimate’ as opposed to a plurality of ‘legitimate’ family forms, are not calling for those alternative family forms to be recognized as marriages because marriage, as they understand it, is an unduly restrictive institution. However, Ettelbrick (and she speaks of a ‘movement’ to this end) is calling for legal rights to support and recognize relationships – just not rights which regulate and restrict in the way that marriage rights do.
    But let me try to unpack my criticism a little so it rests on a point with which I hope you will agree. This is that, in gay and lesbian writing on marriage, there has been division over same-sex marriage because of the worry it would lead to ‘assimilation’ of the plurality and diversity of relationships in that community to the ‘monogamy straightjacket’ (Card’s phrase) of ‘traditional’ marriage. One worry voiced by such theorists has been that the legal division between marrieds and unmarrieds underlies discrimination, both in the distribution of goods such as healthcare and in the respect and value accorded to the relationships. Such theorists advocate the social recognition of non-‘traditional’ relationships as of equal worth as ‘traditional’ relationships. (And some, like Ettelbrick, also call for legal recognition of the alternative relationships in the form of rights protecting the parties to them.) And they oppose same-sex marriage because they believe it will reinforce this invidious distinction. I hope you would agree that this view can be described as “widespread,” or as a familiar position in the lesbian and gay debate over same-sex marriage.
    Now, in your article, you ask:
    “The institution of marriage singles out just one sort of intimate relationship for special treatment; does this not discriminate unfairly against those who prefer relationships of other sorts?” (238)
    You then say that the three criteria which, in your view, constitute the core of marriage – “sexual intimacy, domestic and economic cooperation, and a voluntary mutual commitment to sustaining the relationship” – are quite flexible, as they can include “many different sorts of relationship,” namely polygamy and same-sex marriage. (238-239) You then say that the definition you have given does necessarily exclude some relationship forms, such as temporary marriage, marrying another man’s foot, or forced marriage, but that (as I quote you in my article) no one seriously wants to enter such marriages.
    In this context, my point is as follows: gay and lesbian theorists (and other like bell hooks, and, latterly, urban tribalists) have called for recognition (social, and in some cases, legal) of relationships which do not meet your three criteria, and they have argued for an affirmative answer to the question you raise on 238 – that singling out just this one sort of relationship for special treatment is unfair discrimination. It seems surprising, then, that you do not mention alternative relationship forms – like that described by Ettelbrick in which two lesbians and two gay men wish to form a family unit, or like hooks’ revolutionary parenting – which have been claimed to be the objects of unfair discrimination, in part due to the lack of (social) recognition which legal marriage reinforces. (This might be a place to add the tangential point that I don’t see why the fact that bell hooks is not a Rawlsian is relevant to whether or not she is calling for recognition of diverse relationships.) Because, in the passage I cite, you are discussing the recognition of different forms of relationship in the context of answering the question of whether a more restrictive marriage law is unfairly discriminatory, the fact that theorists have called for social recognition of different relationship forms (not, or not all, sexual, or involving domestic or economic cooperation) which your proposed law would not recognize does seem to me relevant!
    A response to your point 2 will follow!

28. In response to Ralph, continued:
    2. First of all, as I said above and as I think the discussion in my article makes clear, I do think you offer a serious candidate for a neutral defense of marriage law. But I also think it is problematic, or, at least, inferior to my proposed rationale. The most important difference, in my view, between my rationale for marriage law and yours is this: on my view, marriage rights are a fundamental matter of justice, as the social bases of the primary good of caring relationships. This status makes such rights subject to claims of justice. On a desire or preference view like yours, they would not be subject to claims of justice. But on my view, a narrow set of rights – hospital and prison visiting rights, special consideration for immigration eligibility, bereavement and caretaking leave – are appropriate subjects for claims of justice.
    In the article, I didn’t have space to discuss your views regarding the social meaning of marriage, but part of the purpose of my proposal is, in your phrase, to ‘water down’ that social meaning precisely in order to improve the social standing of alternative relationship forms. As I say in the final section, by affirming difference the state can denormalize the ideal of heterosexual monogamy. Insofar as this ideal presents sexual, cohabiting relationships as more valuable or more worthy of state support than other caring relationships, it sustains social discrimination against those other relationship forms. Furthermore, as I say in the final section, to the extent that women are still made vulnerable by anticipation of and through gender-structured marriage (in Okin’s phrase), denormalizing such relationships would benefit women. (Although, as some theorists have argued, simply legalizing same-sex marriage will do a lot already to undermine gender-structured marriage.)
    In response to your first point, then, the main problem I identify is with the preference that only ‘traditional’ relationships be recognized as marriages in law, or the preference to enter a form of marriage which excludes non-traditional caring relationships. Satisfying this preference sustains unjust discrimination against other forms of caring relationships – unjust because it deprives those other relationships (such as friendships or urban tribes) of the protections and benefits accorded marriage.
    In response to your second point, my proposal would satisfy the desires of traditionalists to receive state support for their relationships, plus the desires of non-traditionalists. Your proposal would satisfy more desires of the traditionalists, but would not satisfy the desires of the non-traditionalists – hence of fewer people. It seems to me better to satisfy the desires of more people, especially given that the desires my proposal satisfies involve more concrete benefits (having rights to protect one’s relationships) than the additional desire yours would satisfy (having the social meaning of one’s relationship communicated). It’s also not clear to me how well marriage communicates a determinate social meaning anymore anyway – at least, I think it means very different things in different circles, so there’s already some confusion and thus a question as to whether it can carry out this role. (I mean, for example, to some groups in the U.S. the husband is still head of the household, and husband and wife have clearly defined gendered duties; to other groups it expresses a commitment, but not to gendered roles.)

29. Thank you for the article, which contains a great deal that I agree with (I am currently working on the same area). I certainly agree that existing marriage law violates political liberal state neutrality. But I don’t agree that political liberalism either permits or requires minimal marriage, and many of my reasons echo those given by Rachel above. I don’t think your answer to her is sufficient, so let me quote some of that answer:
    “Practically, you raise the question of why we need to designate any category of relationships as ‘counting’ for legal purposes (“None of these needs to be tied to any relationship …”). But we need some specification of which relationships count unless any relationship (an economic transaction, mail-order brides, a stranger seen once across a crowded room …) could count.”
    Here you miss the possibility that NO relationship would “count”. You go on to give the example of immigration. Presumably immigration rights are a balance between meeting the wishes of those immigrating (to have companions included) and meeting the wishes / needs of the host country (which may include limiting numbers of immigrants. Surely the most neutral policy would be for the host country to decide on the maximum number of immigrants and companions per immigrant it can handle (or wishes to accept), and then to allow each immigrant to bring that many people with him or her – whether those people be in a relationship with the immigrant or not. I might want to bring my hairdresser, or a particularly skilled doctor, or someone who I think deserves a new start in life. And the most neutral, liberal thing to do would be to allow this. (You may think this would be a bad policy since there is something more important about those with whom we are in a caring relationship. I submit that this would be a plausible but non-neutral view.)
    Your response continues:
    “With bereavement and care-taking leave, the thought is that an employee would need extra to the normal vacation entitlement (like sick leave – one might not use it, but it’s additional to the vacation entitlement everyone has), and so, again, there is a need to designate certain relationships as significant enough to merit such leave.”
    Again, why? Wouldn’t the most neutral, liberal thing to do to be to give everyone a fixed amount of leave to use as they please? This might need to be more than existing vacation leave, but again neutrality suggests that caring may not be prioritised. Perhaps you don’t want to call it vacation, but rather discretionary leave. In general, the liberal will support maximal autonomy, which means both maximal discretionary leave but also maximal discretion on what to do with it.
    Now, it might be that there are some matters in which there is a justice-based distinction between people in a certain sort of relationship and people not in such a relationship. Here regulation may have to follow those relationships. But I do not see why a status – let alone one called “marriage” – is needed for that. Here I am unsure whether my disagreement with you is substantive or merely a failure to be convinced by your comments about nomenclature.
    Finally, if having the social bases of caring relationships is necessary to pursuing a conception of the good and exercising moral personhood, does that mean that all those who are unmarried in contemporary society lack moral personhood and are unable to pursue a conception of the good? Surely not.

30. Clare,
    Thanks for the comments. Just to clarify, my post addressed to Rachel was only intended to answer part of her question – what I understood as a practical question she was raising with her example of the immigration petition, namely, why the state should designate relationship types at a general level rather than making evaluations on a case-by-case basis. Since in her example Rachel made reference to caring and to teams, as well as to petitions explaining the ‘connection’, I took it that she was still assuming that not any relationship could be the basis for a successful immigration petition; hence my response in that post.
    But I also understood Rachel to be raising the question which you raise and on which most of the discussion has really focused, that is, the question of why caring relationships, and in particular the reciprocal caring relationships I have described, should be considered primary goods, and I attempted to address this in my answer to Dan. My admittedly inconclusive response turns on the claims about the correlations between caring relationships and psychological or emotional qualities normally needed for the pursuit of conceptions of the good. One of the really helpful things to come out of the discussion so far (and the reason for inconclusiveness) is the need for further research in two areas.
    First, there are a number of specific questions about the psychological literature which the discussion has raised – how widespread the correlations between caring relationships or lack thereof and the relevant psychological costs and benefits are, and whether it matters if the relationships are reciprocal. Thinking over the discussion, I think that it may be less important for me to focus on the benefits of such relationships (and these are documented, the question is just what a survey of the literature will show about how widespread and extensive they are) than on the ‘normal’ costs of the lack of such relationships. Again, there is a documented correlation between lack of close relationships and depression, a state which would, I think, normally interfere with the ability to pursue one’s conception of the good. But I need to take a broader look at the psychological literature, with an eye to the extent of the correlations as well as to whether there are reasons to distrust the methodologies of the studies (were they singlist, for instance?).
    A second, and philosophical rather than psychological, issue which has emerged from this line of questioning is how to think about primary goods. If we take them to be goods normally (not universally) needed in the pursuit of conceptions of the good, how is ‘normally’ to be understood? This is an issue, as I argued in the paper, which any attempt to defend a Rawlsian theory is going to have to address. (Any suggestions from anyone on further reading would be welcomed, by the way!)
    To respond to your specific questions, then:
    With regard to immigration, I am assuming that the state does have reason to limit immigration in some way. I have made an (inconclusive, for the reasons just noted) case that caring relationships are grounds for an entitlement to special consideration, and hence that the state’s limits on immigration should be constrained in light of this. Of course, there might be other reasons grounding an entitlement to have someone given special consideration for immigration eligibility in the kinds of cases that you mention. But I wonder what reasons you might give for such an entitlement?
    With regard to leave entitlement, my background assumption was that different categories of leave recognize that some situations give rise to abnormal leave requirements, and that, along with illness and parenthood, bereavement and care-taking for a seriously ill friend or partner are (typically) sufficiently unusual and draining that they fall into the special leave category. But of course the deeper rationale for including bereavement and care-taking here depends, as my answer in the post addressed to Rachel did, on the point about primary goods.
    I’d be interested to hear what justice-based distinctions you would allow – I suspect our views might be (terminology aside) substantively closer to one another’s than to most of the views on the market.
    Finally, to your final question: no, of course not. Just as one can have self-respect or self-esteem without the social bases thereof, one can engage in caring relationships without the social bases. The claim is that the relationships are the primary goods, the goods normally needed for the pursuit of conceptions of the good, and that as such they can ground claims to their social bases. But the relationships can exist without the social bases.

31. Elizabeth, thank you very much for your response.
    It is very interesting to read what you say about primary goods. I find it plausible that caring relationships are primary goods; certainly the ability to have them is a primary good, and possibly also actually having them. In any case I am willing to grant that idea. But I am unclear on the idea of the social bases of a primary good – be it self-esteem or caring relationships – as it appears in your work and also in Rawls’s. I had understood the idea of the social bases of a primary good to be those things essential for the realisation of that primary good, not simply those things that make it easier to get the primary good. After all, there are lots of things that the state could do to make it easier for me to get into caring relationships, but it can’t, surely, be a requirement of justice that I am provided with things like a subscription to a dating site, therapy to help me work out why I find it so difficult to commit, beauty treatments to make me more attractive to men, etc. So it seems the social bases of the primary goods – the things whose distribution must be secured by justice – must be those things that are essential for realising the good in question. And I cannot see how having state recognition of a particular relationship status is essential for one to access the primary good of a caring relationship, as my example of the unmarried was meant to show.
    And a very quick one: re: immigration you ask “what reasons [I] might give for such an entitlement?” If I were a political liberal I would give the reasons of liberty and neutrality. Each person is to choose who is most important to them.

32. Hi Clare,
    Thanks for your reply – your remarks on primary goods are helpful. I think you’re right that a social basis isn’t anything which makes it easier to realize the primary good. But still, I don’t think the social basis must be ‘essential’ or necessary for realizing the primary good, as one can have self-respect or self-esteem even in a society where the social bases are not secured.
    Now that I think about it, the relation in the case of caring relationships is complicated. My thought was that normally, shared time and experiences are essential for developing and maintaining such a relationship. Thus, the social bases that I describe would entitle people to the normally essential means to the primary good, without the social bases (the rights) themselves being essential, except when the relationship is threatened (by immigration law, hospitalization, imprisonment, illness, relocation, etc.). Perhaps it’s not right, then, to call these social bases for primary goods – another direction for further research! – but I think I can argue just as well that such legal frameworks, protective of primary goods, are subject to claims of justice.
    On immigration, how could liberty and neutrality ground an entitlement to have a person given special consideration? If we don’t posit the importance of durable relationships with particular others, what would be the basis of an entitlement to have someone given special consideration if, say, the state decided to limit immigration to PhDs and MDs? Wouldn’t liberty just ground a claim to non-interference or privacy (not to special treatment)? I might equally want the state to give special consideration to my importing something else whose importation was constrained for reasons of efficiency or public good (pharmaceuticals, perhaps, or certain wild animals), but surely liberty and neutrality wouldn’t give me a claim that the state constrain its policy so that I can meet my preferences.
    Thanks again for your comments.

33. The question is: What should our government’s laws be related to marriage? Which begs the question: What should our government be trying to accomplish with its laws related to marriage? We should recognize that presently the government does not require a qualified couple to state that they intend to love each other, have a “caring relationship”, live together, make babies or anything else to get a marriage license. A problem is that although the government legally defines WHO can get married, it does not, and practically cannot, define WHAT marriage is.
    I would submit that our tax dollars should be distributed based on need rather than marital status. The non-financial benefits to marriage such as hospital visitation can be accomplished by means of legal documents. A single person (or person without a marriage license) would like to have someone visit them in the hospital as much as a married person.
    I suspect that the vast majority of couples in a “caring relationship” do not need government support whether they have a marriage license or not. Having a government marriage license is not going to turn an uncaring person into a caring person.
    If we phased out government’s involvement in marriage, I submit that life would go on. Couples would fall in love, live together, have “caring relationships”, raise children and live as families.

34. Hi Christian,
    Thanks for the comments. It hasn’t come out in the discussion, but one aspect of my ‘minimal marriage’ proposal is that many of the financial supports attached to marriage (see 306-307 for a list of rights currently attached to marriage) would be phased out in an ideal liberal egalitarian society. I agree with Card et al. that it’s unjust to make marital status the basis for an entitlement to health-care, for instance, or direct cash payouts. However, given that so many people now depend on such entitlements, a call for immediate abolition seems premature – for example, phasing out marital health-care entitlements would need to be done in tandem with ensuring universal health-care. So I am mainly in agreement with you about phasing out financial benefits (but the question of financing is complicated: drawing up a hospital visitation law, promulgating it, hiring clerks to file the papers, etc., will take some tax dollars).
    As far as the government defining what marriage is, I think it’s useful to separate social, religious, and personal understandings of marriage (which the government can’t define) from the rationale for marriage law – as you ask, what is the government trying to achieve with such law, and my answer is to support caring relationships (not to turn uncaring people into caring people!). In response to your final comments, I can only repeat some things said in the discussion above – in certain cases (draconian hospital visiting policies, international romances/friendships, relocation) the relationship-supporting rights would be essential to continuing the relationship – but not, as you say, to forming them in the first place.

35. Dear Elizabeth,
    Thank you for your thoughtful response. I agree with you that “immediate abolition (of marriage entitlements) seems premature”. One way to ease the shock of reducing marital benefits is make some of these benefits available to everyone.
    A problem with phasing out financial benefits for people with government marriage licenses is that they are intertwined with other much larger and more difficult issues, for example Social Security, Medicare, Income Tax., Inheritance Tax, Employer provided health plans. An answer is to untangle the web one bit at a time using two principles: using our tax dollars (or tax exemptions) where they will do the most good and not increasing government debt.
    Social Security: Currently a spouse, upon reaching the qualifying age to receive Social Security, can collect 50% his/her spouse’s Social Security payments even if he/she had not contributed anything to Social Security over the years. This can be a large amount. In our case, my wife and I collect an extra $9,000 per year. Very nice for us and easy to get used to, but does not make our relationship more caring. Some poorer senior citizen without a government marriage license probably needs that $9,000 more than we do. The fix is to increase the age for Social Security, reduce the indexing to inflation, increase the maximum wages subject to social security, require everyone from teachers to congressmen to contribute to Social Security, graduated income tax on Social Security benefits, phase out the 50% spousal entitlement, phase in payments to poor old people who are not now covered by social security. Not an easy political project, but eventually we will be forced to do it and the longer we wait the more painful it will be.
    Medicare: Same kinds of changes, plus institute the cost saving (as opposed to cost shifting) measures that were left out of the recent health care bill.
    Income Tax: What a mess. It is not clear if/when there is a benefit or a penalty for being married. The simple solution, which should not cause much pain, would be for each tax payer to file his/her own tax return.
    Inheritance Tax: Another crazier mess that is in state of flux. Solution: no inheritance tax on estates worth less than $3 million, no step up in basis, and no unlimited spousal exemption.
    Employer based health care: More mess. Get employers out of the health business entirely. They add no value. Easier said than done.
    “Support caring relationships (not to turn uncaring people into caring people!)”: On the financial side, it is not obvious to me that giving financial benefits to a couple with a “caring relationship” is going to help support that relationship. The news is filled with stories of rich couples where their “caring relationship” has deteriorated. The other problem is how is the government going to determine which relationships are “caring” and worthy of support. Consider the logical difficulty the government now has determining a “sham” marriage for the purpose of immigration or where a young beautiful woman marries rich old man for his money.
    On the non-financial side, relying on the fallback of marriage laws is really a bad thing. The government does a disservice by giving people an excuse for not having a will; holding large assets in JTWROS (Joint Tenants with Right of Survivorship) or not having a living will or durable power of attorney. These are simple and cheap documents.
    Elizabeth, I can see glorious wedding celebrations with friends, family and neighbors, just without the words “By the authority vested in me by the State of California…”

36. Dear Elizabeth,
    I confess that before my previous post I had not read your “Minimal Marriage: What Political Liberalism Implies for Marriage Law”. I am in agreement with your sections I through III. You have articulated my position with intellectual rigor. Our point of departure is section IV, “Why a Liberal State Should Recognize Minimal Marriage”.
    I think we can stipulate that “caring relationships” are good, even “crucial to our well being” (at least for most of us), and that society benefits from “caring relationships”. I submit, however, that government is not needed in those cases where “caring relationships” are functioning perfectly well without government involvement. If that statement is true, the question is then, what can government do about those “caring relationships” that are not doing well?
    You say (pg 331) that “Caring relationships sometimes need support and protection which the state is uniquely able to provide.” You say that the government can provide “entitlements” that “greatly facilitate spousal contact”. I have a problem with the implication that “a spouse” is identical to a “minimal marriage caring relationship”.
    Your list some benefits that the government now provides to “facilitate spousal contact”. As I understand your thesis of Minimal Marriage, you would permit citizens to distribute these benefits to different people. For example a person may select one person who would be immune from court testimony; another to immigrate into the United States; another for hospital visitation, another to qualify for military housing. I agree that such an arrangement is appropriate and even practical for testimony immunity hospital visitation and perhaps military burial. I have problem with the money issues like increased military housing allowance for married soldiers. I predict what would happen is that all the single soldiers would designate a friend so he would receive the increased housing allowance. The Army would then end up simply paying every soldier the same housing allowance. There would be a similar fate to all the other money issues.
    Immigration is an interesting case. If each of 200 million adults in the US could bring in an immigrant of his or her choice, we would get swamped with 200 million immigrants. A possible way around this problem is that each native born US citizen gets to bring in one tenth of a person during his lifetime.
    I do not see how government minimal marriage is going to convey status, especially if it is called (pg 324) “personal relationships” or “adult care networks”. Most folks are going to get married in a church anyway and introduce their spouses with, “I would like you to meet my husband Ralph. We were married last year.”
    It seems to me Minimal Marriage would lead inexorably to the complete exit of government from marriage and its laws related to marriage—which I think would be a good thing.