MARTHA NUSSBAUM has written a clear and compelling argument for the position that “government cannot exclude any group of citizens from the civil benefits or the expressive dignities of marriage without a compelling public interest.” In carefully dissecting and deconstructing both what marriage is (and is not) in the contemporary US and the arguments against same-sex marriage, she effectively demolishes the case against same-sex marriage and argues that, if government offers a package of benefits that goes under the name of marriage, it cannot rightly exclude same-sex couples from access to that status and the benefits that accompany it. In the wake of the California Supreme Court decision about Proposition 8, and the Obama Justice Department’s recent brief in defense of the Defense of Marriage Act, this argument is certainly timely and important. And yet, although the essay is entitled “A Right to Marry?” it does not fully make the case for such a right. Nussbaum notes that marriage is a “public rite of passage, the entry into a privileged civic status” and that there is no legitimate justification for excluding gays and lesbians from that status. On this point, I heartily agree. But she leaves aside a deeper point—one I would like to use this opportunity to raise: should there be such a “privileged civic status” for anyone?
In the course of a nuanced, and sustained, analysis and critique of the various arguments against gay marriage, Nussbaum insists that the right to marry is more than just a non-discrimination right. It would not be sufficient, she claims, for the state to get out of the marriage business altogether, dropping the legal status of “marriage” in favor of civil unions for all. Instead, the state has an obligation to “offer a set of economic and civil benefits to married people.” But I do not find here an argument for this position. Indeed, Nussbaum notes that “nowhere [even in the cases (e.g. Loving and Turner v. Safley) where the Supreme Court seemed to assume or assert a due process and equal protection right to marriage] has the Court held that a state must offer the expressive benefits of marriage.” In other words, states could simply offer the status of civil union to all; what they cannot do is offer marriage to some, and civil union to others. But she then jumps to the claim that “in other words, marriage is a fundamental liberty right of individuals…”
Why does this matter? There are many benefits that, in the United States, can be accessed through marriage, some of them with real monetary components—including health insurance, Social Security survivor benefits, and favorable tax treatment, to name just a few of the more than 1100 federal benefits that are connected to marriage. There are also social supports that assume, and reinforce, expectations of stability over time, that are available to married couples, as opposed to the unmarried. Many arguments in favor of same-sex marriage (including Nussbaum’s) are rooted in the belief that gays and lesbians should have the same access to these benefits as do heterosexual couples.
But my concern here is that a focus on the issue of non-discrimination vis-à-vis lesbians and gays distracts us from a larger question: whether—and why—the state should be in the business of granting any relationships the “privileged status” of marriage. Why should government promote and validate only certain kinds of households/intimacy constellations? Nancy Polikoff, in her recent book Beyond (Straight and Gay) Marriage: Valuing All Families under the Law, argues that a focus on straight/gay marriage deflects attention from the enormous variety of family and kinship structures that exist in the United States, and the differential treatment accorded them.(1) Why should only some of these—those that fit a particular definition of “marriage” (even if that is expanded to include lesbian and gay couples)—be granted privileged status and accompanying benefits? To do so may well further marginalize those (whether heterosexual or not) whose family forms do not fit the two adults plus children model—e.g. single parents, singles, the widowed, divorced, those living with aides of one sort or another. Moreover, privileging marriage can have the additional consequence of treating marriage as a solution to the growing care crisis in the United States, further privatizing the responsibility of care for the dependent, and marginalizing those who do not have the resources (whether in money or household members) to provide care for those who need it.
More significantly, as Judith Plaskow and I argued in the wake of the Massachusetts Court decision (2): why should (access to) so many benefits in the United States be dependent on marital status? The economic crisis makes clear that we need to think much more deeply about the ways our society allocates public (and work-based) benefits through marital status, and work toward public policy that treats people equally regardless of marital status, and accords them the benefits they need.
In short, rights to equal treatment, regardless of sexual orientation? Yes. But I question the focus on a right to marry, that creates a privileged status for some, and leaves too many others without comparable social supports.
Martha Ackelsberg is Professor of Government at Smith College
(1) (Boston: Beacon Press, 2008)
(2) “Response to Mary Hunt,” Journal of Feminist Studies in Religion, Vol. 20, no. 2 (Fall 2004), pp. 107-112 and “Beyond Same–Sex Marriage,” in Righteous Indignation: A Jewish Call for Justice, ed. Rabbi Or N. Rose, Jo Ellen Green Kaiser and Margie Klein (Woodstock, VT: Jewish Lights, 2008), pp. 195-205