Married Is as Married Does?
So, I'm teaching a class on practical ethics, and I'm just now having my students grapple with the issue of same-sex marriage. In particular, I have them pretending to be members of a non-partisan think tank who have been approached by a state legislator who is frustrated with the tenor of the marriage wars and who wants to try something new. My students are to come up with a concrete recommendation, which might include legislation to redefine marriage itself.
Among the sources I provided my students is an excellent article from the Stanford Encyclopedia of Philsophy, available here: http://plato.stanford.edu/entries/marriage/
Reading this article has set me to thinking about polyamory and some of the widely shared values and assumptions of poly folk, especially those of us who are married.
In particular, there are two basic options: interpret marriage as a contract, or interpret marriage as an institution.
A contract is a legally binding arrangement into which two or more parties enter voluntarily, that is, by freely given consent. A contract may be dissolved when all parties consent to the dissolution, or withdraw their consent from the agreement. The terms of the contract may be renegotiated at any time.
An institution, on the other hand, is a particular social arrangement that limits freedom and restricts behavior in certain specified ways in order to channel human effort toward some socially desirable goal. Schools are like that, as are legislatures, and courts, and banks, and so on. On this view, the terms of the instution are set by some combination of social forces outside of and partly indifferent to the will of individuals. The terms of the institution cannot be renegotiated on a case-by-case basis . . .unless the institution is explicitly set up to allow such renegotiation, and then only within defined boundaries.
The bottom line is this: if marriage is a contract, it can be molded at will to fit the needs or interests of particular individuals; if it is an institution, then it can be changed, if at all, only through a slow and uncertain process of social or political or economic transformation.
It seems to me, though, that a contract model is too "thin" to really account for all the things marriage is and can be and should be. It would be too easy to walk away from a mere contract-marriage. An insitution of marriage backed by social sanctions provides stronger incentives to stick it out, to work through really rough times, to build something lasting . . . and, perhaps, to establish a good environment for children. Of course, the insitution has changed over the past decades to allow more flexibility in getting out of really toxic marriages, and that's probably a good thing.
At the same time, the institution model can be too rigid and slow moving to allow for much individual variation, when you or I judge compulsory monogamy, for example, to be too restrictive, too limiting.
Now, I'm one who thinks that freely given consent often trumps other considerations, so the contract model has its appeal. It's not an absolute, though, and there are also considerations of character (including moderation and temperance with respect to pleasure) and of consequences (including broader social goods to be secured by institutions that limit free choice in specific ways in order to enable the production of other goods).
So, here's the question: Can marriage, as a legally binding arrangement, be stretched and changed to suit the interests and values of the individuals in a particular relationship? Do my wife and I really have the prerogative to decide, on our own, to be non-monogamous? Or, in doing so, are we violating the very terms of the institution in which we participate and from which we benefit? If so, what should we do then?
If marriage is still to be regarded as institution, has it changed to allow more leeway for individual variation? Does that leeway include polyamory? (Evidence suggests not, or not yet, at least as a matter of social sanction!) If not, then what, exactly, are my wife and I doing?
I don't know precisely where to take this, but there's a whole hornets' nest of ethical and social complication here that seems worth considering.
I suppose I'm going to hear "consent! consent! consent!" from those who gather here, and I'm certainly sympathetic. But that seems, somehow, too easy, too one-sided and, in the hands of some poly folk, too much an excuse for simple self-indulgence. ("You can't tell me what I can and can't do!")
As I said, I think consent often trumps other considerations, but it really doesn't always do so. Sometimes, we have to bow to necessity, or to the call of the common good, in spite of our own choices or, especially, our own desires. Sometimes we have to work toward - and wait for - the slow, halting, and uncertain process of institutional change.
Seriously, though. What is a marriage? How free can individuals really be to redefine its terms, even in sharp opposition to the general run of things? Even if my wife and I agree, freely, openly and honestly that it's okay for us each to see and love and have sex with other people, could we be fundamentally violating the terms of our marriage which are, in large measure, not made by us.
(By the way, I like the idea that, if marriage is a contract, its a very peculiar contract. The parties never sign any thing, never read the fine print or, indeed, any size print, and can't dissolve the contract simply by mutual agreement to do so. It has to be state sanctioned to begin with, and can only be dissolved with the permission of public authorities.)
The question I think you are asking is:
Why is society not flexible enough to allow the people it is trying to serve to do everything they want to do?
My answer to that begins in the courts. The courts are where people who are fighting tend to go to settle their differences. In this world, more people fight with each other than get along with each other. That means society has to come up with a way to manage the fact that it is asked to play a role in settling those differences. The burden that management task places on society is so large than society responds to that burden by placing restrictions on what it's people can do. Those restrictions attempt to limit the fighting that can happen, therefore the burden society must shoulder as it participates in the settlement of those disputes.
The side effect of those restrictions is limited freedoms. Stepping out of theory and getting practical, there are a lot of grey areas in those restrictions that can be legally and reasonable used by individuals to create the flexibility and opportunities they seek. I would say the grey areas between contract law and institutional restrictions is the place to go to find those opportunities.
Well, it's not just about what laws and institutions will let us get away with. It's also about what we really ought to be doing, what responsibilities we have.
Maybe another way of putting it is this: What puts the "ethical" in "ethical non-monogamy", of which poly is one variant?
As I said, many people here will say "consent! consent!", and that is certainly part of the story. I have responsibility to be autonomous - which includes not being ruled by my own desires - and also to respect and uphold the autonomy of others.
But I don't think that's the whole story.
As an institution, marriage is only partly about the agreement between two people. It's also about contributing to the common good. A nation of stable households might, on the whole, be better off than a nation of free-wheelers doing whatever they consent to do . . . and that being better off may be the sort of thing that matters ethically.
It just makes me wonder, a little, about what we who think of ourselves are really after, and how we should consider our responsibilities.
Is our aim simply to be left alone to do as we choose . . . or do what we want? (Choosing and wanting are not the same thing!) Or are we aiming to transform social institutions at a broader scale, at least to open up degrees of freedom within the institution of the household that have not been seen in our culture before? Do we have to do the latter in order to be able responsibly, ethically to do the former?
I would ask why are contract or institution the only options when others are available which would possibly be more fitting? As it is, in its current form, I feel marriage is both contract and institution, depending on perspective and those involved.
That's the "ethical" part: who am I hurting? Is everyone aware and okay with this? Am I, in fact, destabilizing the lives of the people involved? Because from where I sit, permitting marriage to take the form that best suits the lives of the individuals involved can only have a stabilizing effect. Say four people marry in order to form a four-income household (or a three-income household allowing for one partner to pursue an artistic career, another degree, stay-at-home parenthood... you get the idea). How is that unstable? How is that unethical? If one household for four people suits those four people, why not let the law acknowledge them as a household?
I use the word "household" on purpose because I have got more intimate than I'd like to be with the restrictions the government places on aid to the indigent. The law counts me, one unmarried woman living at home, as a household of one. As such, though in practice I'm one of three living on roughly $60K a year, legally I am my parents' boarder making $0 a year. What this means is that I could collect any number of benefits -- but the way the law works, I end up needing them! If my parents suddenly asked me for rent, I'd need HUD or welfare to help me pay them. Since I am not part of that household, insurance companies don't recognize me as entitled to my parents' health care. Since I cannot, at this time, work for a living wage, I must instead look to the government for that health care. If I were part of their household, I'd be one less Medicaid applicant.
I'd also get a lot less in student loans. There are trade-offs. But I wouldn't have to worry about health care any longer, and I might even get the kind of care that allowed me to recover to the point of working through college or taking up a trade.
Legally, for the rearing of children, a household of four is more ideal than a household of two and two, assuming these four people will be parenting together anyway. Four parents with equal legal standing means four people to advocate for the children, four to sign permission slips, go on school trips, be with the children in hospital, provide the children health care, provide them food -- and the level below which those four would have to fall in order to qualify for help increases from where it sits for two and two. They will have the right to ask for help funding appropriate housing, should housing become an issue. They will not hear, "Technically, you're two and two, so go get two apartments." They will hear, "You are four, and you need housing for four." (Plus dependents. You get the idea.)
So to me, the "contract" view of marriage actually does contribute more to society than it takes away. If we mean to have our freedoms regardless, better for the government to recognize that, better because it will be saying, "Make your home. Be a family. If you can get it to work, you've earned your protections the same as anyone else who's gotten it to work."
See I have never really viewed marriage as either, I have always looked at it as a partnership...that's it. We both have a vested interest in each other and making this partnership work and we both stand to lose alot if it ever broke down. That does not mean one partner can't screw the other over big time but even though we signed a license I never viewed it as a binding 'contract'. I feel that the 'institution' view of it is far too outdated for current times because life has become too fluid for all parties in a marriage to ever restrict ourselves to defined roles and/or preconceptions of what a marriage should be.
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