Does Marriage Protect or Control?

Does Marriage Protect or Control?

By Cynthia Peters

In a previous commentary I wrote in response to the gay and lesbian rights movement's pursuit of legal marriage: Be careful what you wish for.

Recent judicial and legislative decisions revealing some of the mis-uses of marriage help explain why the "freedom to marry" is a questionable goal. Clearly, denying marriage rights to gays and lesbians is discriminatory, but removing that barrier to access still leaves us with a sexist, sex-phobic, authoritarian institution that can be deployed to punish (mostly) poor women and others who don't follow certain rigidly defined "norms" of sexual and social behavior.

When progressives fight for access, we should not sell our struggle short by failing to look critically at what's beyond the barriers.

Being married does offer certain protections under law, benefits, and social recognition - all of which can be supportive to couples trying to build a life together and create family. But the institution of marriage can also be used to coerce, punish, and prescribe certain behaviors.

A recent Boston Globe article (August 26, 2001) explores the "alienation of affection" laws on the books in nine states, which require the "other" woman or man to pay damages to the spurned spouse. The idea is that the seductress or seductor lured away someone's mate, and so ought to pay for the "property" he or she has stolen.

Granted, the "alienation of affection" laws are archaic and little-used, but their recent re-emergence combines with other efforts to make "breaking up hard to do," and reminds us that marriage creates a channel for the state to prescribe what's normal and acceptable about how we have sex, create family, and negotiate private relationships. Consider the following:

* The 1996 Personal Responsibility and Work Opportunity Act (PRWOA) leads with the "finding" that "Marriage is the foundation of a successful society." The Act goes on to enforce marriage by requiring single mothers to work, but not necessarily married women. The PRWOA requires a two-parent family to work only 35 hours weekly (except when they receive federally funded child care, in which case they must work 55 hours per week). Meanwhile a single parent must spend 30 hours per week in the labor force. Gwendolyn Mink argues that despite what you may have heard about moving women from "welfare to work," the Temporary Assistance for Needy Family (TANF) regime treats wage work as the alternative to marriage, not to welfare -- as punishment for mothers' independence.

* Using an 1805 law against adultery (which prohibits a man and woman who aren't married to "lewdly and lasciviously associate, bed and cohabit together"), a North Carolina judge ruled recently that an unmarried couple should be arrested and the mother should lose custody of her children. "The court finds that the act of adultery by the mother living openly with a man she's not married to is detrimental to the welfare of these children" (Boston Globe, August 19, 2001).

* According to the Boston Globe (February 12, 2000), there is bi-partisan support for requiring states to spend part of their welfare money on pro-marriage activities, encouraging caseworkers to talk to pregnant women about marrying the baby's father, judging state success based on reductions in out-of-wedlock births, and teaching about the value of marriage in high school.

* Oklahoma has designated May 5th as "Save Your Marriage" day; earmarked $10 million in welfare funds for marriage counseling; and hired two "marriage ambassadors" to appear on talk shows and at schools. Engaged couples and newlyweds are entitled to "state-sponsored counseling and spiritual guidance" as part of Governor Frank Keating's efforts to slow the divorce rate. (Boston Globe, March 11, 2001).

* Louisiana and Arizona have new laws - and similar bills have been filed in 20 other states -- allowing couples to voluntarily enter into "covenant marriages," which do not permit no-fault divorces. Divorce or separation is permitted only if one spouse can prove that the other committed adultery, was imprisoned for a felony, was physically or sexually abusive, or abandoned the home for a year.

What should progressives fight for when it comes to the state's role in protecting, controlling, regulating, or otherwise defining the ways we construct relationships and families?

Being married should not entitle anyone to financial support or benefits of any kind from the state. We should de-link state-provided economic benefits and private choices about how, whether, and in what context we have sex, construct relationships, and create families. For example, there should be no tax benefits for married couples, no special social security provisions, no opportunities to avoid punitive welfare-to-work policies, no state-funded counseling sessions about how to make your marriage last.

Rather, progressives should look for ways to support people to be in whatever kinds of relationships they choose - whether they are long-term, monogamous, heterosexual or not. One way to do this would be to make sure people are not influenced by financial incentives. Women should not be put in the position where they consider marriage because it will make them more economically secure or help them avoid punitive welfare policies. There should be no financial incentives to get married or disincentives to get divorced. Progressives should fight for a social safety net that has no relationship to people's private choices. The safety net should include universal health care, a generous caregiver's allowance that would provide a guaranteed income to anyone caring for children or any other family member, paid family and medical leave, and workplace protections (that are not only just but make family life sustainable) such as a living wage, affirmative action, comparable worth, a shorter work week, and the right to unionize. (See The Women's Committee of 100/Project 2002 at http://www.welfare2002.org.)

Furthermore, being married should not create an opportunity for the state to infantilize adults. If my spouse is moved to leave me for someone else, I should not be able to sue that someone for stealing my property. Whatever else I may think of him at that moment, my spouse is not a puppet on a string.

Meanwhile, states should not write bills that create special terms - such as covenant marriage - by which couples wed. Doing so involves the government in privileging certain kinds of marriages and promoting rigid "norms." There should be laws against murder, assault, and theft, and there should be protections for children, legal guidelines for child custody and division of assets in case of the dissolution of a relationship, but when it comes to matters of the heart, the law must treat us like free and autonomous human beings who create bonds with others, struggle with decisions, sometimes break hearts, maybe even "wreck" families. The law should have nothing to say about how adults enter into human relationships, families, communities.

Does that mean there would be no social or cultural supports or inputs into nurturing families, relationships, and satisfying sex lives? On the contrary. Progressives should support good, widespread, age-appropriate sex education in schools and elsewhere. We should work to undermine the use of sex, sexuality, and the female body as a marketing tool, and reclaim all of those things as positive aspects of human expression, power, desire, vulnerability, connection. In addition to using social and cultural outlets to affirm sex as human expression, we should look for ways to link it with responsibility, understanding our bodies, being knowledgeable about health issues and pregnancy, and being in touch with life goals, aspirations, needs, limitations, etc.

Progressives should also develop social and cultural channels for exploring ways of being in family and in relationships - not to coerce or prescribe, but to acknowledge the choices, the challenges, the meaning we might make of our role in private and public human community. Inviting your community to witness and support the choices you make - such as in a wedding ceremony - seems sensible and meaningful, and part of the process of creating public space for acknowledging and understanding choices about how to lead your life. But limiting that celebration, acknowledgment, or public promise to heterosexual couples makes no sense at all. Progressives should acknowledge and find public ways to support a wide range of private choices.

Intimate relationships can be a source of support, affirmation, and joy as well as many challenges. Even the much-affirmed, financially underwritten, Disney-reinforced, over-idealized heterosexual married couple can claim only 25 percent of the population in their demographic. In other words, many heterosexual couples are not getting and/or staying married despite all the legal, cultural and financial props. Maybe it's time to envision and create social institutions and policies that nurture a wide range of intimate human connection, rather than simply trying to pry open marriage and make it available to more candidates.

When Evan Wolfson, Marriage Project Director at the Lambda Legal Defense and Education Fund says, "We're now the kind of people you think of in terms of marriage, instead of the crude and horrible stereotypes that we had to dispel," he is noting a positive development, but one that progressives should be careful with. True, on the positive side, more people recognize that long-term, same-sex relationships are acceptable and have as much chance of being healthy as heterosexual relationships. But on the negative side, a campaign to increase access to marriage does nothing to undermine the ways marriage as an institution can extend the long arm of the state into our private lives, our bedrooms, our choices about how to raise children. Nor does it do anything to challenge the "crude and horrible" stereotypes of the "lewd and lascivious," non-marrying types.

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

Rather than fighting for the right to same-sex marriage, progressives should be fighting for the right to a social safety net that protects everyone regardless of whether the sex they're having is lewd, adulterous, with the same sex, and/or non-monogamous. And we should be fighting for social and cultural space outside the marketplace and outside state-sponsored incentive plans where we can exercise our right to define cultural and social norms about our roles in relationships.

Cynthia Peters is a political activist and freelance editor and writer. She can be reached at cppk [at] email.msn.com