JMP Discussion of Alison Toop’s “Is Marriage Incompatible with Political Liberalism?”

Welcome to what should be a fun and insightful discussion of Alison Toop’s “Is Marriage Incompatible with Political Liberalism?” Lori Watson (University of San Diego) has kindly contributed a critical précis, which appears immediately below. Please join the discussion!

 

Toop and I agree that political liberalism is compatible with legal marriage.    Yet, while we both hold this view,  our reasons  vary considerably.  As Christie Hartley and I argue in ““Political Liberalism, Marriage and the Family,” (2012) and further develop in Chapter 9 “Political Liberalism and Marriage” of our Equal Citizenship and Public Reason: A Feminist Political Liberalism (Oxford, 2018), there are indeed strong public reason arguments available in certain contexts for state recognition of legal marriage.

In what follows, I will raise some critical concerns about the arguments Toop offers and develop some of the key claims Hartley and I advance in our work as points of contrast.

Toop reconstructs arguments from Elizabeth Brake and Clare Chambers to the effect that state recognition of marriage violates the core commitments of political liberalism and aims to reply to the substantive tensions she sees Brake and Chambers raising so as to show that there isn’t an incompatibility between the core commitments of political liberalism and state recognized marriage.

One of the key arguments Toop advances is that, contrary to her reading of  Chambers (and Brake for that matter), state recognition is compatible with state neutrality.   Before I consider Toop’s main argument, though, I want to stress that  although Chambers does argue that legal marriage is incompatible with political liberal neutrality, it is important to emphasize that she is not political liberal.  She favors a kind of comprehensive liberalism that is grounded in a commitment to substantive equality.  And, her critique of both political liberalism full stop and of state sponsored marriage regimes is grounded in a concern for the realization of substantive equality.  The problem with state recognized marriage, on Chambers’s view, is that it is institutionalizes and perpetuates objectionable forms of inequality and it fails to protect vulnerable persons.   Thus, Chambers’s liberalism doesn’t prize neutrality, or neutral justifications per se.  Thus, as I understand Chambers the problem with state recognized marriage is that it unjustly discriminates against the non-married (leaving some persons vulnerable and disadvantaged) and that, despite formal equality in the law, the institution pressures spouses to conform with patriarchal and heteronormative norms that result in just disadvantages for some.

Yet, Chambers does investigate whether political liberals can endorse marriage and argues that it is a violation of state neutrality as political liberals conceive of it.   As Toop reconstructs the argument, Chambers is concerned with the state making value judgments as a violation of neutrality.   However, I think the core issue isn’t for Chambers or for Hartley and I whether the state is making value judgments per se, which the state will have do to in making policies, but about whether the policy in question serves to institutionalize inequality or serves persons fundamental interests as citizens.

As to the argument that legal recognition of marriage unjustly discriminates, Toop replies by arguing that if we can show that there is a unique value in state support for marriage, then the differential treatment (recognition and non-recognition) is not unjust.  Moreover, she is skeptical that affirmative recognition of some relationships devalues others.   As the positive claims in response to the unjustified discrimination argument are capture in Toop’s public reason argument as well, I will turn to evaluate that argument.

Toop’s positive argument is that the supposed problematic value judgment at stake isn’t needed to justify state recognized marriage.   The state need not make a problematic value judgment to recognize rights for marriages nor to bundle rights in a package for those that choose to marry. Rather, according to Toop, efficiency may be the justification for bundling and that the state bundles rights doesn’t prevent the state from extending rights to non-marital relationships when important rights are at stake. Marriage is one way of “obtaining these rights and duties among others” (p.9).

In addressing this argument, I want to say something (perhaps controversial) about the role of neutrality in political liberalism.  I (and with Hartley) think that the idea of neutral justifications as a requirement of political liberalism is both overblown and widely misunderstood.  As Hartley and I argue in Equal Citizenship and Public Reason, “Political liberalism is a substantive doctrine based on moral ideas that are part of a particular view of constitutional democracy in which citizens stand in a relation of freedom and equality” (p. 251).  This means, among other things, that justifications for state action must be grounded in public reasons.  However, properly understanding the structure of justification in public reason is not significantly about neutrality per se, but whether the justification draws on a conception of free and equal citizenship and satisfies the reciprocity condition.  Such justifications must be addressed to other citizens as reasonable, free and equal persons, and because of this they may not rely on controversial conceptions of the good.  Rather, public reasons must be shared reasons among persons so described.  Thus, the fundamental questions for political liberals regarding marriage include:  does state recognition of marriage function to serve the fundamental interests of persons as free and equal citizens?  Does legal marriage unjustly discriminate or subordinate some persons in society?   Or is it necessary to secure the fundamental interests of citizens, including their interest in equality?

Hartley and I answer: It depends.  Whether the state can permissibly recognize marriage as an institution depends on the background conditions and kinds of inequalities present in a given political context.  If, for example, there is widespread religious recognition of only heterosexual marriages, and religion in a particular society is powerful enough such that that recognition serves to create inequality among those not so recognized by the religions in question, the state as a reason (and a public reason argument) for instituting state recognized marriage of say, same sex persons, as a vehicle for ameliorating the inequalities created by powerful social institutions.

This brings me to evaluating the public reason argument in favor of marriage proffered by Toop.  She argues that there is a public reason argument available for restricting marriage to romantic couples, namely, that the risk and vulnerability is romantic relationships is distinct and warrants protection in ways that other relationships do not (p. 23).  She writes: We “have reason to think that romantic couple relationships do have feature that enable particularly deep and intimate knowledge to be gained of the other person, which while opening up the possibility of individually tailored care, also leaves one distinct vulnerable, making the care that occurs in such relationships distinct valuable but also particularly risky.”   A couple of questions arise:  might not this argument also cut the other direction?  That is, if the risk is especially great, does that give a reason for prohibiting such relationships or at least not give such relationships any special protection or privilege?  Clearly, Toop thinks not, but then the reason must centrally about the value of such relationships.  But, why think that such only dyadic and romantic relationships confer that value?  Those who practice and live non-monogamy may (and I would say often do) have multiple deep and loving relationships, which carry with them the risk any love relationship carries. Why think there is something special about a dyad?   Perhaps Toop thinks, along with Macedo, that dyads are special because they involve reciprocal and exclusive co-dependence.  In fact, she gestures at this kind of argument (p. 16).  “The nature of romantic dyadic relationships particular fosters and enables the motivational and epistemic benefits of care.  In a romantic each individual is concerned with only one other person, whom they love.  This means each person has more time and opportunity to learn about the single other which provides enables them to provided uniquely tailored care” (p. 16).  She argues that because love is directed only at one other person the motivation to care is “undiluted.”  But, I am not convinced that only dyads can involve that kind of reciprocity or dependence. Love is not a zero-sum game.  Consider a non-romantic love case, that of parents with multiple children.  Parents provide unique care tailor to each child, and if things are going well have undiluted motivation to care for each child for their particular selves.  I can’t see why, apart from unfounded assumptions about the connection between sex/romance and love to think that persons can’t have multiple deep, connected, romantic relationships.  Or if Toop wants to deny that claim, then perhaps her argument proves too much:  for it seems to suggest that persons should have only one child as well?

Beyond this: why think that such risk and vulnerability occurs only in romantic contexts?  People can partner for a variety of reasons, have non romantic love, and yet be reciprocally dependent in particular areas of life and incur the exact same risks Toop highlights.  I find the claim about romantic love under motivated and under established.

In any case, there is a further part of the argument that Toop would need to make to show that there is a public reason argument here, and that is that the interests at stake are deeply tied to securing the free and equal citizenship of persons in such relationships.  I don’t see that argument, and so would like to hear more on this point.

5 Replies to “JMP Discussion of Alison Toop’s “Is Marriage Incompatible with Political Liberalism?”

  1. Firstly I want thank Teresa Bruno Nino and Travis Timmerman for choosing my paper and arranging this discussion. Thank you also to Lori Watson for the careful reading of my paper and for the insightful comments provided. It has been a little while since I thought about the arguments in this paper, but it is good to engage with them once again.

    The aim I had in writing this paper was more to challenge (what appeared to me to be) an increasingly accepted view – that marriage was incompatible with political liberalism – than to provide a fully worked out positive argument that demonstrated that marriage clearly was compatible (although of course I do offer what I take to be plausible routes in that direction).
    This leads to four initial points that I would like to make:
    First, Watson is right that the positive argument I put forward in this paper – particularly about the risks of the romantic relationship – requires further development. I hope to shed some light on that in a forthcoming post, but it is in fact the subject of multiple papers (in progress) drawing on work from my PhD thesis.
    Second, (and relatedly), my views on this topic have developed since writing this paper, and I now hold the position that whilst some sort of state recognition of romantic relationships is warranted, it is not clear that the political institution of marriage is the tool through which the state should provide this.
    Third, I am open to alternative arguments that demonstrate that there are (alternative) public reasons for state recognised marriage, and accept that these may well be conditional, as Watson’s is.
    Fourth, I recognise that there are further challenges that a political institution of marriage needs to meet – such as those advanced by Clare Chambers in her book Against Marriage: An Egalitarian Defence of the Marriage-Free State (2017) – that aren’t distinctly political liberal challenges. It is an oversight on my part not to have made Chambers’ overall position on this matter clear in this paper and I thank Watson for highlighting it.

    In this post I would like to focus on what I take to be Watson’s main challenge. The challenge, as I understand it, focuses mainly on my claim that there is something distinct about the romantic couple relationship that could potentially provide a public reason for the state to recognise an institution of marriage that is restricted to this relationship.
    Watson claims that the public reason I identify must primarily be about the value of the romantic relationship (rather than the risks) because it looks as though the risks could provide an argument for prohibiting romantic relationships or at least removing/refusing to protect/privilege them. She then challenges the claim that the romantic relationship uniquely has the valuable features I claim it has.
    I take it the thought is that it can only be the value of the relationship that prevents me from saying we should ban or cease protecting them. I disagree. There are other reasons to reject these options.
    I don’t take the first option – prohibiting romantic relationships – to be a real option. As Brake identifies there is a strong social norm to have and pursue romantic relationships, and policing such a ban would be horrendously invasive of our privacy and freedom. The second option – stop protecting the romantic relationship – can also be rejected (but not because of the value of the relationship). The risks that I identify are risks faced by the individual – and it is the individual that should be protected (as they are by marital rights/benefits) not the relationship per se. If this kind of relationship is likely to happen (given our social norms/society) and the individual is open to this kind of risk, then the state has reason to mitigate this risk.
    As such, I don’t think I have to accept that I am relying on the value of the romantic relationship to provide a public reason for marriage. I am claiming that the risks that this relationship can generate could provide a public reason.
    Nevertheless I do want to clarify some points regarding the value of the romantic relationship in comparison to other relationship types (and reiterate what I say in the paper in response to the unjustified discrimination argument about different relationships being distinctly valuable).
    Firstly, I don’t think that the parental love/romantic love analogy is helpful. Parental love is distinct from romantic love in a number of important ways – it is not between ‘equals’ (the child is a dependent) and it is not reciprocal in the same kind of way. The point about non-monogamous relationships is however relevant. Watson writes: “Those who practice and live non-monogamy may (and I would say often do) have multiple deep and loving relationships, which carry with them the risk any love relationship carries.” I agree that non-monogamous relationships are deep, loving, and risky. But they are deep, loving, and risky in a distinct way. The nature of the relationship – being between more than two people – will affect the nature of the intimacy and care that occurs within it. This does not mean that the intimacy and care is any less valuable. It just means it is different.
    My claim is that the risks generated by caregiving in the dyadic romantic relationship could be heightened because there are only two people. If the care/resources are not reciprocated then there is not necessarily anyone else to look to for support if/when required. There would be others to look to in a non-monogamous relationship.
    However, to argue that this difference could warrant differential treatment of the dyadic romantic relationship is not to rule out the possibility that the risks found in other (non-dyadic) romantic relationships warrant their own form of protection. I should point out also that if it is shown that the risks are relevantly similar in non-dyadic romantic relationships, then I would concede that marriage should be extended to such relationships.
    But I do think that the fact that these relationships are romantic is important. As indicated in my first point above a full explanation of why would require multiple papers (currently in progress) – but I will attempt to summarise my thoughts in the next post – especially as it will help to answer Watson’s question about how the interests at stake are tied to securing free and equal citizenship of individuals in romantic relationships.

    I look forward to reading other’s comments on my paper over the next two days. Apologies in advance that due to the time difference and evening commitments the next post and further replies may be delayed until the morning (UK time)!

  2. Here is the promised second post. As I said yesterday – a lot of this is work in progress – so there are inevitably gaps and flaws! I hope to motivate the idea that romantic relationships are uniquely risky and suggest that this could justify the state treating them differently to other intimate caregiving relationships.

    Intimate caregiving relationships lead to systematic material, physical and psychological vulnerabilities. I am drawing on Tamara Metz’s work here, as I say in the paper. When we provide care for someone, we use our own physical and material resources. These are the same resources that we might have otherwise used to care for ourselves. Whilst we might expect these resources to be reciprocated caregiving relationships, it is not reliable – it might not be in kind, and it might occur at a much later date.

    Material, physical and psychological vulnerabilities are of concern to the state because physical, material and psychological resources are primary goods. People need to have a basic level of health, a certain level of income and wealth, and self-respect in order to function as free and equal citizens. The state is therefore, as a matter of justice, concerned about the equal distribution of these resources.

    The state should provide the mitigation against these vulnerabilities because they are systematic so individuals are not solely responsible for the vulnerability and are not always in a position to mitigate against it themselves (e.g. via employment/access to healthcare). Tamara Metz highlights that intimate caregiving is particularly risky because it is “unpaid, unrecognised, and undervalued, and not seen as producing ‘marketable’ skills” (Metz 2010, p. 126). The vulnerability is due to social and political structures and norms surrounding both caregiving, and such things as employment and what is viewed as valuable and marketable within society. This is something that the individual themselves cannot mitigate, as they cannot easily change the social and political structures and norms causing this vulnerability.

    I think it is clear that romantic relationships are intimate caregiving relationships. My claim is that romantic relationships are particularly risky intimate caregiving relationships, and that this particular riskiness could provide a public reason for the state to deal with them separately to ensure those who are made vulnerable by the romantic relationship are not significantly disadvantaged by that vulnerability. (As I noted above I am now not sure whether this should be through a political institution of marriage or some other legal tool).

    It is difficult to fully defend this claim here as it relies on a particular view of the romantic relationship which I am in the process of developing. I have a role-based account of the romantic relationship which defines a relationship in terms of the norms governing that relationship. The basic idea is that the distinct obligations that make up the role of a romantic partner affects the nature of the vulnerability that participants face as a result of intimate caregiving. First, because the caregiving is performed in a relationship in which one makes oneself particularly vulnerable to harm; and second, because providing intimate care within a romantic relationship is a part of a duty – there is a sense in which we are obligated to do it, and to make ourselves vulnerable.

    Vulnerability to Harm
    On my account the role of a romantic partner involves the role-obligation to share the central aspects of our lives and identities. This makes romantic partners particularly vulnerable to each other. This intimate knowledge enables the care that is given to be particularly tailored but it also means that our romantic partners know exactly how to hurt us, in a way that attacks the most central parts of our lives and identities – whatever those may be.

    The role of a romantic partner also includes the duty to take joint responsibility for one another’s central aspects of well-being. This means that a romantic partner should not use the intimate knowledge to harm, but rather to benefit us. But romantic relationships are not always perfect. Some people abuse the intimate knowledge they are entrusted with and the position of power this puts them in. Romantic relationships also come to an end, and it is then that the intimate knowledge can be used to create real damage.

    Providing intimate care in a relationship in which one is this vulnerable to harm makes that provision even more risky. Not only are material, physical and psychological resources spent, their reciprocation not guaranteed, and the vulnerability this causes hard to mitigate against due to social and political norms and structures, meaning that the caregiver is at risk of not being able to look after themselves; in addition, the caregiver is at risk of significant harm, and of not being able to protect themselves from it.

    Duty to Provide Intimate Care
    Providing intimate care within a romantic relationship is a role-obligation. This means that people within romantic relationships (playing the role of a romantic partner) have an extra, binding, reason to provide intimate care for their partner and to make themselves vulnerable doing so within a relationship that puts them at an acute risk of harm. This makes it harder for romantic partners to stop providing intimate care when it becomes too burdensome.

    Role obligations are special, as opposed to general, duties. It seems that we generally accept the notion of role obligations in our everyday moral life, and take their prescriptions as binding. They provide us with decisive reasons to act in the way that the role specifies (consider the role of a parent or a professor) – even if there is some debate over how precisely they bind us.

    The role-obligation to take joint responsibility for the central aspects of your romantic partner’s well-being therefore gives romantic partners a decisive reason to provide intimate care, even if it makes them particularly vulnerable. Whilst there isn’t a duty to remain in the romantic relationship, releasing themselves from the duty to take joint responsibility, by ending the relationship, isn’t commonly a particularly salient or attractive option. Romantic relationships are likely to be important to their participants, and they will have reasons to remain in them, even if they are demanding. In addition, ending the relationship exposes one to the particularly acute potential of harm identified above.

    This means that it is harder for romantic partners to give up intimate caregiving when it becomes too risky, and harder for them to mitigate against the vulnerability that this causes. Whilst someone who provides care outside of a romantic relationship might have a variety of reasons for providing intimate care for someone, they do not necessarily have the additional, binding and motivating reasons that the romantic partner role obligations bring.

  3. Thanks very much to Alison for participating as an author and to Lori for writing the critical precis. I have a couple of comments on the paper and the discussion around it. First, I am sympathetic to Lori’s analogy of parental love. I agree with Alison that it is not completely analogous since it does not involve love between equals. However, the relation of care between adult children and elderly, often ill parents seems to me to involve many of the risks and vulnerabilities that romantic relations involved as sketched in the paper and above, even though it is not romantic in nature. Above, Alison emphasizes the fact that the romantic element in dyadic or other relationships plays a central role in generating the vulnerabilities and risks, but the case I’ve mentioned is one where they arise in the absence of a romantic connection. In a way this observation is compatible with some of what Alison says above. Maybe the fact that these relationships involve the risks and vulnerabilities, it is the state’s role to regulate them and provide protection for both parties.

  4. My second comment is about non-dyadic romantic relationships. With the caveat that I am only familiar with the dynamics of dyadic romantic relationships, it seems to me that many of the risks and vulnerabilities that arise in dyadic romantic relations arise in non-dyadic relations too. For instance, suppose that somebody is in a polyamorous relationship that has lasted many years, but she realizes that she wants to exit the relationship altogether and does not want to be involved with any of the members of that relationship. All the risks mentioned above about exiting a romantic dyadic relationship are present in this case too. The other members of the relationship have intimate knowledge of the member wanting to leave and can use it against that member. Finances might be tied in complex ways, maybe this person was shouldering more of the responsibilities of child rearing and is left financially dependable or vulnerable to the decisions of the other members of the family. Alison points out above that if there are distinct risks and vulnerabilities, they should have their own kind of protection. I just wanted to point out, first, the complexity involved in the risks and vulnerabilities associated with non-dyadic relationships and, second, that some of the risks and vulnerabilities will be the same and in some cases perhaps amplified because there are more individuals involved.

  5. Thank you Teresa for your comments. Both of your examples are helpful.

    For your example of adult children and elderly parents I agree that there will be vulnerabilities generated by caregiving in these relationships – and I think that (as people like Metz argue) there are reasons for the state to mitigate against this type of vulnerability in such relationships. However I still think that there is something distinct about the vulnerabilities that arise in romantic relationships as I started to gesture towards in my second post – and that distinct vulnerabilities could require distinct forms of protection.

    For your example of the vulnerabilities in non-dyadic romantic relationships: this kind of example suggests that there might well be reason to treat certain non-dyadic and dyadic romantic relationships similarly (particularly with relation to the type of vulnerability relating to exiting the relationship). But as you highlight nicely this is a hugely complex area – and one thing that makes it more complex is that there are different forms of polyamory. This is something that I hope to think about a lot more in the future.

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