Some people get married because they feel pressure to do so.Â There remains the outside pressure to “do the right thing,” especially when a woman becomes pregnant outside of wedlock.Â Frequently, what has resulted as an outcome of does not form the basis of a strong relationship, and as these two people are faced with marriage and children, the strains become too much.
A third reason that couples divorce is that one or both partners are unwilling to sacrifice some portion of their independence.Â Many husbands and wives maintain separate checking accounts, dividing up bills, groceries, etc. as if they were roommates.Â Many people are unwilling to give up other aspects of single life, such as the husband who still remains involved in sports to an excessive degree, or cannot give up his “night out with the boys.”Â Marriage should be the total joining of two people, or else it will fail.
Reflecting the difficulty of generating specific rules to protectlove, many such views have understood the ethical content of marriagein terms of virtues (Steinbock 1991, Scruton1986, Chapter 11, 356–361). The virtue approach analyzes marriage interms of the dispositions it cultivates, an approach which, by itsreference to emotional states, promises to explain the relevance ofmarriage to love. However, such approaches must explain how marriagefosters virtues (Brake 2012). Some virtue accounts cite the effects ofits social status: marriage triggers social reactions which securespousal privacy and ward off the disruptive attention of outsiders(Scruton 1986, 356–361). Its legal obligations, too, can be understoodas Ulysses contracts:they protect relationships when spontaneousaffection wavers, securing agents' long-term commitments againstpassing desires. Whether or not such explanations ultimately show thatmarital status and obligations can play a role in protecting love, thegeneral focus on ideal marital love relationships may be characterizedas overly idealistic when contrasted with problems in actual marriages,such as spousal abuse (Card 1996). This last point suggests that moralanalysis of marriage cannot be entirely separated from political andsocial inquiry.
Views understanding marriage as protecting love generate diverseconclusions regarding its obligations. But such views share twocrucial assumptions: that marriage has a role to play in creating acommitment to a love relationship, and that such commitments may beefficacious in protecting love (Cave 2003, Landau 2004, Martin 1993,Martin 1994, Mendus 1984, Scruton 1986, 356–361). However, bothof these assumptions may be questioned. First, even if commitment canprotect a love relationship, why must such a commitment be madethrough a formal marriage? If it is possible to maintain a long-termromantic relationship outside marriage, the question as to the pointof marriage re-emerges: do we really need marriage for love? May notthe legal and social supports of marriage, indeed, trap individuals ina loveless marriage or themselves corrode love by associating it withobligation? (Card 1996, Cave 2003; see also Gheaus 2016) Second, cancommitment, within or without marriage, really protect romantic love?High divorce rates would seem to suggest not. Of course, even if, asdiscussed in 3.1, agents cannot control whether they love, they canmake a commitment to act in ways protective of love (Landau 2004,Mendus 1984). But this returns us the difficulty, suggested by thepreceding paragraph, of knowing how to protect love!
In political philosophy, discussions of marriage law invoke diverseconsiderations, reflecting the various theoretical orientations ofcontributors to the debate. The ensuing discussion will set forth themain considerations brought to bear in arguments concerning the legalstructure of marriage.
On this approach, the structure of marriage derives from the behaviorneeded to maintain such a relationship. Thus marriage involves acommitment to act for the relationship as well as to excludeincompatible options—although there is controversy over whatspecific policies these general commitments entail. To take anuncontroversial example, marriage creates obligations to perform actswhich sustain love, such as focusing on the beloved's good qualities(Landau 2004). More controversially, some philosophers argue thatsustaining a love relationship requires sexual exclusivity. Thethought is that sexual activity generates intimacy and affection, andthat objects of affection and intimacy will likely come intocompetition, threatening the marital relationship. Another versionfocuses on the emotional harm, and consequent damage to therelationship, caused by sexual jealousy. Thus, due to thepsychological conditions required to maintain romantic love, marriage,as a love-protecting institution, generates obligations to sexualexclusivity (Martin 1993, Martin 1994, Scruton 1986, Chapter 11,356–361, Steinbock 1986). However, philosophers dispute thepsychological conditions needed to maintain romantic love. Some arguethat casual extra-marital sex need not create competing relationshipsor trigger jealousy (Halwani 2003, 235; Wasserstrom 1974). Indeed,some have even argued that extra-marital sex, or greater socialtolerance thereof, could strengthen otherwise difficult marriages(Russell 1929, Chapter 16), and some polyamorists (those who engage inmultiple sex or love relationships) claim that polyamory allowsgreater honesty and openness than exclusivity (Emens 2004). Otherphilosophers have treated sexual fidelity as something of a redherring, shifting focus to other qualities of an ideal relationshipsuch as attentiveness, warmth, and honesty, or a commitment to justicein the relationship (Martin 1993, Kleingeld 1998).
A second widespread (though less unified) institutional approach tomarriage appeals to the ideal marital love relationship to define thestructure of marriage. This approach, in the work of differentphilosophers, yields a variety of specific prescriptions, on, forexample, whether marital love (or committed romantic love in general)requires sexual difference or sexual exclusivity (Scruton 1986,305–311, Chapter 11, Halwani 2003, 226–242, Chartier2016). Some, but not all, proponents explicitly argue that the maritallove relationship is an objective good (Scruton 1986, Chapter 11,356–361, Martin 1993). These views, however, all take theessential feature, and purpose, of marriage to be protecting a sexuallove relationship. The thought is that marriage helps to maintain andsupport a relationship either in itself valuable, or at least valuedby the parties to it.
While much discussion of new natural law accounts of marriageoscillates between attacking and defending the basis in biological sexdifference, some theorists sympathetic to new natural law attempt toavoid the Scylla of rigid biological restrictions and the Charybdis ofliberal “plasticity” regarding marriage (Goldstein2011). Goldstein, for one, offers an account of marriage as a projectgenerated by the basic good of friendship; while this project includesprocreation as a core feature, the institution of marriage has, onthis account, a compensatory power, meaning that the institutionitself can compensate for failures such as inability toprocreate. Such an account grounds marriage in the new natural lawaccount of flourishing, but it also allows the extension to same-sexmarriage without, according to Goldstein, permitting other forms suchas polygamy.
A related, influential argument focuses on the definition ofmarriage. This argues that marriage is necessarily between one man andone woman because it involves a comprehensive union between spouses, aunity of lives, minds, and bodies. Organic bodily union requires beingunited for a biological purpose, in a procreative-type act (Girgis, etal., 2010). Like the new natural law arguments, this has raisedquestions as to why only, and all, different-sex couples, eveninfertile ones, can partake in procreative-type acts, and why bodilyunion has special significance (Arroyo forthcoming, Johnson 2013).
Marriage is a legal contract, but it has long been recognized to be ananomalous one. Until the 1970s in the U.S., marriage law restricteddivorce and defined the terms of marriage on the basis ofgender. Marking a shift towards greater alignment of marriage withcontractual principles of individualization, marriage law no longerimposes gender-specific obligations, it allows pre-nuptial propertyagreements, and it permits easier exit through no-fault divorce. Butmarriage remains (at least in U.S. federal law) an anomalous contract:“there is no written document, each party gives up its right toself-protection, the terms of the contract cannot be re-negotiated,neither party need understand its terms, it must be between two andonly two people, and [until 2013] these two people must be one man and onewoman” (Kymlicka 1991, 88).
A further point concerns law: to guide citizens' judgments andchoices towards the relationship in which they can uniquely achieve themarital good, the state should endorse marriage, as understood on thisview, and not recognize same-sex relationships as marriages. However,it might be asked whether this is an effective way to guide choice, andwhether state resources might be better spent promoting other basichuman goods. Moreover, as the argument equally implies a state interestin discouraging contraception, divorce, and extra-marital sex, thefocus on same-sex marriage appears arbitrary (Garrett 2008, Macedo1995). This objection is a specific instance of a more generalobjection: this account treats sex and the marital good differentlythan it does the other basic human goods. Not only is less attentionpaid to promoting those goods legally (and discouraging behaviorcontrary to them), but the moral principle forbidding action contraryto basic human goods is not consistently applied elsewhere—forexample, to eating unhealthily (Garrett 2008).