We are pleased to present our second installment of PEA Soup's collaboration with Ethics, in which we host a discussion of one article from each issue of the journal. The article selected from Volume 120, Issue 2, is Elizabeth Brake's "Minimal Marriage: What Political Liberalism Implies for Marriage Law" (open access copy here). We are very grateful to Cheshire Calhoun for starting our discussion; her commentary follows beneath the fold…
Commentary on Elizabeth Brake's “Minimal Marriage: What Political Liberalism Implies for Marriage Law” by Cheshire Calhoun
From the standpoint of political liberalism, the state’s involvement in licensing marriages and supporting them via a package of rights does not look easy to justify. There is, first of all, the fact that current marriage law appears to be predicated on views about what kinds of relationships are especially valuable ones and thus deserving of state recognition and support. Advocates of same-sex marriage, while wishing to expand the range of relationships recognized and supported by the state, typically assume either explicitly or implicitly that there is something especially valuable about same-sex relationships that are like traditional marriages; so the state should support them as well. Rawlsian political liberals, however, require that laws and public policies appeal only to reasons all could share regardless of their conception of the good. Thus appeals to particular conceptions of what makes some relationships especially valuable ought not to be used as justifications of marriage law. In addition, political liberalism requires that the law be neutral, not favoring one conception of the good over another, by, say, legally favoring one kind of caring relationship over other kinds when there are no public reasons for doing so.
As Brake observes in her essay, there are many kinds of caring relationships that adults enter into with many individuals. Some resemble traditional marriages, others are nonexclusive sexual relationship (such as those favored by polyamorists), others are ongoing economic or caretaking relationships between adult family members or friends, others involve sharing a household and finances without necessarily sharing sexual intimacies, and so on and so on. What should a political liberal recommend that the law’s relation be to the plurality of possible adult caring relationships?
One option is to argue that the law should get entirely out of the marriage business. A second option, and the one recommended by Brake, is that a political liberal should endorse what she calls “minimal marriage”—the legal imposition of a minimal set of restrictions on with whom marriage rights can be exchanged. In particular, marriage law should not restrict either the number or sex of the spouses, or require that that the exchange of rights and responsibilities be reciprocal, or require that the entire package of marriage rights be exchanged with one person. The most intriguing and innovative feature of Brake’s notion of minimal marriage is that it would disaggregate marriage rights in such a way that one might have multiple “spouses” each of whom is offered a different marriage right (or set of rights); of course one might also choose to exchange one’s entire package of rights with one other person creating something that looks like traditional marriage.
There is much in Brake’s proposal that is food for thought, and that will provide readers with pause for thought. Here I will dwell on one point that gave me pause for thought: Brake’s political liberal justification for the state’s involvement in marriage at all, even in the form of minimal marriage.
In response to the question “Why should the state recognize and support any relationships?” Brake answers, in a nutshell, because the social bases of adult caring relationships—like the social bases of self-respect—is a primary good; thus state support of adult caring relationships is required as a matter of justice.
Two questions might naturally spring to mind. First, why think that regardless of one’s conception of the good one will want to have the social bases of adult caring relationships secured? Brake answers this question at length. Second, supposing that we agree to add this new primary good to Rawls’s original list of primary goods, why think that the social bases of adult caring relations aren’t adequately secured through liberty rights to freedom of association and privacy? Brake does not address this question except very briefly.
Starting with the first question: what’s the argument for regarding the bases of adult caring relationships as a social primary good? Brake describes adult caring relationship as “emotionally significant personal relationships between parties who know each other in their particularity” (327). Such relationships may, or may not, involve material caretaking but always involve attitudinal care. Such relationships, Brake argues, are instrumentally necessary for the development and exercise of the two moral powers of persons, since “we form our conceptions of the good in colloquy with those close to us and exercise our sense of justice in relationships” (328). Moreover, caring relationships provide the kind of psychological support that, like self-respect, is an essential support of our pursuit of projects (329). Finally, even though a hermit might not find adult caring relationships instrumentally useful, adult caring relationships are nearly universally useful and a primary good need not be more than nearly universally useful.
While it seems obvious that we do not exercise our two moral powers in isolation, it is much less obvious that the exercise of our two moral powers is especially dependent on adult caretaking relationships. Clubs, workplaces, sports teams, libraries, classrooms, political organizations, internet chatrooms and so on are also sources of relationships that contribute to the development of individuals’ conception of the good. In addition, the kinds of psychological support some receive in these less personal relationships may be just as significant to sustaining their confidence and interest in their life plans as the support that others receive from care-taking relationships. These less personal relationships, of course, might be adequately secured through liberties of conscience, association, and speech and would not require minimal marriage.
So we need some reason for singling out adult caretaking relationships and treating the social bases of those specific relationships as a primary good rather than treating the social bases of, say, the exchange of ideas or social commerce with the like-minded as a primary good. Brake does not provide that reason. On the contrary, there seems to me to be an unstated, and undefended, assumption running throughout the piece that caretaking relationships are an especially valuable form of human relationship. And that comes perilously close to predicating the argument for minimal marriage on a particular conception of the good—namely the view that the best relationships are ones in which a person is known in his or her particularity. To the extent that this is so, the minimal marriage proposal looks more like a significant step toward a more neutral marriage law, without actually being entirely neutral.
Arizona State University