Gilboa argues that a genuinely liberal society should allow for same-sex marital ceremonies but would not be discriminating against same-sex couples by denying them the benefits and protections of the marriage license.  (I review Jeremy Garrett’s response to this paper, in the same issue, elsewhere on Philosopher’s Digest.)

Gilboa distinguishes between the right to marry a person of the same sex (by, e.g., having a wedding ceremony) and the right to obtain public recognition of such a marriage (by, e.g., obtaining a marriage license).  He argues that liberalism should admit the former, but not for the reasons typically given.  And he argues that liberalism can deny the latter without unjustly discriminating against same-sex couples.

The idea that liberalism should allow for same-sex wedding ceremonies is uncontroversial, claims Gilboa.  But two reasons that he thinks are typically given for this idea are inadequate: (1) marriage is essentially about love, commitment, or intimacy (Gilboa counters that such essentialism about the institution of marriage is dubious, and, more importantly, avoidable, since we should focus instead on the marriage ceremony as a private service); (2) bans on same-sex marriage treat homosexuals and heterosexuals unequally before the law because only the latter can marry those they find sexually attractive (Gilboa counters that it is sometimes permissible for the law to exclude a group of people based on the uniqueness of the people’s preferences).  Gilboa’s own reason for accepting the idea that liberalism should allow for same-sex wedding ceremonies is that liberalism guarantees the freedoms of speech, assembly, and religious expression.

The idea that it is not discriminatory to deny same-sex couples the legal rights and benefits of marriage is given two defenses by Gilboa.  The first is based on a definition of “discrimination”; the second, on an understanding of “non-discriminatory reasons.”

Gilboa’s definitional argument runs as follows.  Since “to discriminate against a person is to deny a legitimate claim of that person for equal access to public resources, including legal rights and benefits, because the person is a member of a protected group,” and since the denial of the legal rights and benefits of marriage to same-sex couples does not do this, the denial does not discriminate.  He supports his definition of discrimination with examples of behavior that is non-discriminatory in the relevant sense: failure to give a girl a spot on the high school football team (it’s not because she’s a girl), failure to invite the one Jewish family in the neighborhood to a party at your house (it’s not a public resource), and failure to provide hearing impaired people hearing aids at the symphony (it’s not a legitimate claim).  He supports his claim that denying same-sex couples the legal rights and benefits of marriage does not satisfy his definition of ‘discrimination’ using an analogy with public education.   Equal access to public education is not denied when a person who prefers private education foregoes the public subsidy of the service, even though the state does not subsidize their private education.  Likewise, equal access to marriage is not denied when a person who prefers same-sex marriage foregoes the public support of opposite-sex marriage, even though the state does not support their same-sex marriage.  In either case, Gilboa argues, to suppose that equal access has been denied is to implicitly alter the nature or definition of the kind of resource that the public elects to provide.

Gilboa’s second argument for his claim that it is not discriminatory to deny same-sex couples the legal rights and benefits of marriage is that two common reasons for this denial are non-discriminatory reasons: (1) the belief that homosexual acts are morally wrong, and (2) a concern for the social consequences of the public recognition of same-sex marriage.

Regarding (1), Gilboa argues that even if homosexual acts are in fact morally permissible, a failure to recognize same-sex marriage that is genuinely due to moral disapprobation of such acts is not the same as targeting homosexuals for exclusion.  He considers an objection: such moral disapprobation cannot be fruitfully distinguished from bias against homosexuals as a group.  His reply is that in general, there is a perfectly valid distinction between moral disapprobation of certain things that members of a social group would like to do and bias against the group as a whole.  Another objection: what if bans on interracial marriages were based on a belief that interracial sex was morally wrong? Gilboa’s reply here is that there are significant differences in the background conditions of homosexuals now and interracial couples during the time of anti-miscegenation laws in the United States: for example, while it is unbelievable for moral disapprobation of interracial sex back then to have been isolatable from comprehensive bias and hostility against African-Americans, it is believable for moral disapprobation of homosexual sex nowadays to be isolated from a comprehensive bias and hostility against homosexuals.

Regarding (2), Gilboa considers the argument that the consequences of giving public support to same-sex marriage might be negative, since such public support might dislodge the good effects of legally privileging heterosexual monogamy over other forms of union, thereby opening the door to (for example) polygamy.  While he gives a favorable gloss to this argument, Gilboa insists that it can only legitimately be employed to deny public support to same-sex marriage, but cannot be used to ban the practice of homosexual wedding ceremonies or revive anti-sodomy laws.

In his conclusion, Gilboa argues that, even though it would not be discriminatory for the state to fail to support same-sex marriages, such failure to support same-sex marriages might lead to injustices of other kinds.  In that case, he argues, it would be appropriate for states to create domestic partnership arrangements which would allow same-sex couples to obtain some, or even all, of the legal rights and benefits of civil marriages.

Taking his lead from Robert Nozick (who observes that “the fundamental question … one that precedes questions about how the state should be organized, is whether there should be any state at all” (Anarchy, State & Utopia, p. 4)), Jeremy Garrett investigates, not how the institution of civil marriage should be organized, but whether there should be any such institution at all.  Finding there to be a compelling prima facie case against the institution, and finding two important arguments against this prima facie case to be wanting, Garrett concludes that we should not, in fact, have the institution of civil marriage.  Instead, he defends a view called Marital Contractualism (henceforth ‘MC’), a proposal for a ‘privatized’, ‘dis-established’ marriage regime.  On such an arrangement, the state’s involvement in the institution is to act as a third-party enforcer of contracts for life-partnership; the sanctification of such unions as ‘marriages’ is left to the private sphere.

Though a regime of civil marriage represents the status quo, Garrett cleverly organizes his discussion so as to shift the argumentative burden to the institution’s defenders.  This feature, though not explicitly signaled in the text, is perhaps the article’s distinctive merit, and among its more important contributions.  For by illustrating MC’s congruence with basic liberal principles, Garrett astutely demonstrates that – from the perspective of liberal political theory, if not from the perspective of contemporary social policy – disestablished marriage should be regarded as the natural default position.  One might even suspect an attempt at covert agenda-setting here: by thus organizing his argument, Garrett is tacitly inviting further theorists to likewise regard MC as the default liberal position.

Garrett’s case for a presumption in favor of Marital Contractualism is threefold.  First, citing its affinity with core liberal values such as personal liberty and freedom of contract, he argues that MC is “default-justified” (163-4).  Secondly, Garrett cites five important virtues of MC.  These are as follows:

(1)  “Efficiency in social policy”: Garrett concedes that marriage policy is currently put to use, albeit awkwardly, in serving worthwhile social policy goals.  However, under MC, the state could serve these same ends less clumsily by other means, which do not involve marriage policy: “For example, in securing the legitimate interest of children, the state would be encouraged to work directly through the categories of parenthood/guardianship to provide education, material resources, etc.  Since every child will be assigned parents/guardians but not every child’s parents/guardians will be married, this more direct approach to social policy should be more efficient in achieving the desired goal” (164).

(2)  “Treats citizens as equals”: Under a regime of MC, a certain form of inequality-before-the-law would be excised from current practice – viz., no longer would citizens be treated differently (for, e.g., tax purposes) according to their marital status.

(3)  “Respects diversity and individual freedom”: Together with the preceding virtue, this attraction is best illustrated by considering its implications vis-à-vis the same-sex marriage controversy: MC “immediately resolv[es] one of the most divisive issues in contemporary democratic life … Since MC would not recognize anyone’s ‘marriage’ per se, its equal treatment would remove the issue from democratic debate altogether” (165).

(4)  “Increases likelihood of informed consent”: By playing up the ‘contractualist’ element of marriage, and eliminating its ‘status’ component, MC encourages prospective life-partners to attend more carefully to the terms of the unions they contemplate entering.

(5)  “Compatible with many theories of justice”: While I share some of his optimism in this regard, I am a bit less sanguine than is Garrett that “[o]ne could be a conservative, libertarian, liberal, feminist, or utilitarian and still consider MC the appropriate” marriage regime.  Consider, for instance, that throughout his piece Garrett draws heavily on a 2003 article by Anita Bernstein – an article in which the legal theorist examines MC and, as Garrett himself tells us, explicitly rejects it on utilitarian grounds (174).

Third, Garrett appeals to important disadvantages inherent in MC’s primary alternative.  On this front, he cites both direct and indirect costs of the institution of civil marriage.  Among the former, there are the administrative costs associated with regulating the institution, and the foregone revenues resulting from tax incentives designed to encourage marriage.  Among the latter, there are both the familiar impacts (“the effects of marital status on access to employment, health insurance, and other benefits”, where nonmarried citizens “either cannot access these goods at all or can do so only at higher costs than would otherwise exist” (167)) and the less familiar (such as “ideological subsidies” by which “social currency” is transferred “in ways that work to the detriment of both the married and unmarried” (167)).  This third section of Garrett’s tripartite prima facie case in favor of MC is perhaps the only place where I detected substantial room for improvement.  For the case that civil marriage suffers from substantial costs to be fully convincing, it must also be demonstrated that these costs significantly outweigh the institution’s benefits.  (Garrett acknowledges this same point later in a different context, when he is rejecting the objection that MC is unduly impracticable.)  Unfortunately, at this stage, Garrett does not take this further step.

Having defended a ‘presumption of MC’, Garrett now turns to consider possible arguments that might be deployed so as to rebut this presumption.  He identifies three broad strategies the defender of civil marriage might invoke: (1) holding “that certain kinds of intimate relationships have significant value … that is sufficient to warrant their recognition and promotion by the state”; (2) arguing that “whatever value is had by a given form of civil marriage, MC is morally unacceptable” in its own right; or (3) “challeng[ing] the practicability of MC” (168).  Due to space constraints, and noting that he has taken up strategy (1) elsewhere, Garrett considers only the latter two objections.

Garrett contends that the second criticism – which he calls the ‘moral defect’ charge – almost always relies on a mischaracterization of MC, or upon an exaggerated expectation regarding the social goals MC ought to effect.  To illustrate the latter sort of error, Garrett examines Susan Moller Okin’s charge that MC is ill-equipped to ameliorate many of the various gender-related inequities associated with the traditional institution of marriage.  Garrett dismisses Okin’s worry on grounds that such comprehensive policy goals lie outside the scope of what one might legitimately expect from MC – or from any single public policy.  Instead, he suggests that these (worthwhile) policy goals are best facilitated by “’outsourcing’ them to other areas of the law or social policy that can address them in ways that are more efficient, effective, wide-reaching, and consistent with treating citizens as free and equal” (169).

The third criticism – what Garrett calls the ‘impracticability’ charge – merits a three-part response.  First, Garrett alleges, this accusation has all the features of a desperate ‘last resort’ strategy for the opponent of MC; besides, it might have been invoked with equal plausibility as a rationale for resisting any number of previous admirable social reforms – for instance, abolishing slavery or extending voting rights.  Second, and like the ‘moral defect’ charge, this criticism typically relies on a mistaken assumption about MC – for instance, the previously-encountered (and dismissed) assumption that marriage policy is necessary inasmuch as the state must deploy the legal category of ‘married’ pursuant to its legitimate interest in securing children’s welfare.  Third, and most damagingly to the MC opponent, this appeal underestimates the adaptability of contract law.

Jeremy Garrett has contributed a clear and convincing case to the burgeoning literature on the ‘disestablishment’ of marriage.  Garrett’s discussion is singular, in my estimation, for its most perspicuous survey of the conceptual terrain: he recognizes clearly that, while civil marriage represents the status quo as a matter of current social policy, it ought not represent the status quo as a matter of liberal political theory.  Readers will profit from engaging both his case for a philosophical ‘presumption of MC’, and his treatment of arguments which seek to rebut that presumption.