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.

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