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.