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Claudia Card

Ink on paper by MICKEY PATEL

Birth certificates of children born out of wedlock once bore the notation ‘illegitimate’. Today, it is widely acknowledged in the United States that no child is illegitimate. The reason is not that the state now confers legitimacy on births out of wedlock. Rather, we no longer regard the state as having the right to distinguish between legitimate and illegitimate children. When no children are illegitimate, none are ‘legitimate’ either. Similarly, I hope one day we may recognise that the state has no right to distinguish between legitimate and illegitimate mutually voluntary intimate unions between adults. Laws prohibiting kidnap and rape, including statutory rape, should be sufficient to provide protection against involuntary intimate relationships.

If any two (or more) people simply want to use the language of "marriage" to describe their intimate union, without invoking the sanctions of law, they can probably do so without hurting others. But there are actually good political reasons to reserve the term "marriage" for unions that are recognised as legitimate by such institutions as insurance companies, who distribute benefits only to married persons. These institutions recognise as marriages only those unions that are licensed by the state. I have been persuaded by John Boswell’s Same-Sex Unions in Premodern Europe (New York: Villard Books, 1994) to call intimate unions that deviate from those legitimated by the state simply "unions" or "intimate unions", rather than "marriages", to avoid confusion about what is under discussion. I do not oppose intimate unions. Intimate partnerships are wonderful. What I oppose is, rather, legitimate marriage, which tends to spoil most of the unions that it legitimates.

When the state recognises the union of any two people as a legitimate marriage, with the legal privileges, responsibilities and rights attaching thereto, everything changes. Now the burden of justification is on whichever partner wishes to dissolve that union. It is up to the state to determine whether those justifications are acceptable and whether the dissolution will be granted. It is also up to the state to determine how the property belonging to members of that union will be divided among them, how responsibility for debts will be divided, and what rights any of them will have regarding any children of whom that union may have had guardianship.

Further, parties to legitimate marriages are liable to be in deep trouble if they enter into intimate relationships with someone else to whom they are not legitimately married. If marriage confers social status and respectability, adultery confers a stigma. It often confers legal liabilities as well. It may provide a spouse not only with sufficient justification for divorce but also with a legitimate claim to substantial financial support for a long time afterwards.

The difficulties are not only connected with dissolving a marriage (although they become acute when one spouse wishes to dissolve it because of the other’s abuse). During marriage, a spouse has legal access to the person, property and history of the other spouse. Legal marriage destroys any protection of privacy that one might otherwise have had with respect to one’s spouse. The two are regarded as one, and even if ‘He’ is not always the one, the implication is that spouses have abandoned the integrity of their persons within that union.

Historically, this made a certain sexist sense. When He was the one they became, He could speak for both, make decisions for both, determine the residence of both and so on. His wife became almost his property. Although He could not sell her, he could sell just about anything she (had) owned. It is easier for the state to be able to deal with the leader of a corporation than to have to consult each member or await their consensus. Marriage is a kind of corporate union.


The state does not rob victims of the means of self-defence. Victims of physical abuse by partners who are not legally their spouses do not encounter legal obstacles to refusing the abuser access. Victims can sometimes enlist the cooperation of the law in defending themselves against abusers, who may be guilty of legal trespass. Trespass is easier to prove than assault, if only because it is more likely to have witnesses. There is no general presumption, when partners are not legally kin, that the abuser must have the victims’ interests at heart. Consequently, the victim does not have the same burdens of proof as a victimised spouse

Today, of course, in many places He is no longer the one. Yet difficulties linger, despite spouses’ more nearly egalitarian status. The problems that lead me to reject the institution of marriage are those that make it almost impossible for a spouse to defend herself (or himself) against stalking, battery, and eventually murder by the other spouse or to defend their children against stalking, battery, and sexual assault by that spouse. These evils are extraordinarily difficult to prove in particular cases. Under US law, the burden is always on the accuser to prove them.

Even when there are visible bruises, cuts and other injuries, and a hospital record documenting them, causality is difficult to prove without witnesses. In family violence, the only witnesses are commonly the perpetrator and victim. But many forms of abuse leave no visible evidence. In her book Next Time She’ll Be Dead: Battering and How to Stop It (Boston: Beacon, 1994, pp. 90-91), Ann Jones discusses the applicability of Amnesty International’s "chart of coercion" (from its Report on Torture in 1973) to abusive relationships. The recognised methods of coercion include (1) isolation (deprives victims of social support for resistance, makes victim dependent on interrogator), (2) monopolisation of perception ("fixes attention upon immediate predicament," eliminates competing stimuli), (3) inducing of debility and exhaustion ("weakens mental and physical ability to resist"), (4) threats ("cultivates anxiety and despair"), (5) occasional indulgences ("provides positive motivation for compliance"), (6) demonstration of omnipotence ("suggests futility of resistance"), (7) degradation ("makes cost of resistance appear more damaging to self-esteem than capitulation", "reduces prisoner to animal-level concerns"), and (8) enforcing trivial demands ("develops habit of compliance"). Notice that none of these eight methods of coercion explicitly mentions physical hitting or sexual assault. Of course, all of these methods make assaults easier to perpetrate. But even without hitting or other physical assault, these methods themselves render the victim a prisoner and make her life intolerable. Yet it is even more difficult to prove monopolisation of perception, the inducing of debility and exhaustion, threats, degradations, and the enforcement of trivial demands than to prove outright hitting and sexual assault. Amnesty International’s eight strategies of coercion seldom leave bodily marks or send victims to the hospital.

Defenders of marriage often assume that the problems with the institution of marriage are simply due to sexism and that they can, therefore, be eliminated as we make progress with defeating sexism. This analysis has also been offered as a reason to think there would be no such problems with lesbian or gay marriages. I believe this is a serious mistake. These problems are surely aggravated by sexism, but they do not depend on it for their existence. Sexism may enter more at the stage of social response than at the stage of originating causes. As long as there are people who have tendencies toward violence and domination and who lack scruples regarding the use of violence, there will be battering, stalking, sexual assault and murder of intimates by partners. Fear of divorce and the resulting loss of unjust economic privileges that currently go with marriage may be among the motives to spousal assault. But they are not the only motives. Some people are just insanely jealous.

It will be objected, of course, that these hazards exist for intimate unions even without marriage, not just heterosexual unions but also lesbian and gay relationships. In response, it should be noted that at least without marriage, it is easier for a victim to escape the relationship and get her (or his) life back. The state does not rob victims of the means of self-defence. Victims of physical abuse by partners who are not legally their spouses do not encounter legal obstacles to refusing the abuser access. Victims can sometimes enlist the cooperation of the law in defending themselves against abusers, who may be guilty of legal trespass. Trespass is easier to prove than assault, if only because it is more likely to have witnesses. There is no general presumption, when partners are not legally kin, that the abuser must have the victims’ interests at heart. Consequently, the victim does not have the same burdens of proof as a victimised spouse. It is enough that she chooses to deny the abuser access to her. And so it does not matter nearly as much that she probably cannot prove the details of the abuse.

Marriage law has improved. Divorce is not only possible but in most jurisdictions in the US, it no longer requires one spouse to accuse the other of wrongful behaviour. When my parents divorced in 1969, after 32 years of marital hell, Wisconsin law required accusations. My mother finally had to accuse my father of "cruel and inhuman treatment", although he was not a batterer, stalker or sexual abuser and engaged in none of Amnesty International’s eight strategies. He was actually guilty of non-support because he had become an alcoholic, and his alcoholism was not difficult to prove. Nevertheless, charging him with "cruel and inhuman treatment" left him with a lesser social stigma than the charge of "non-support" would have done. "Cruel and inhuman treatment"had become a relatively meaningless charge. It was code for "we don’t want to be together anymore", and, therefore, was easily accepted as grounds for divorce. Although mutual consent to divorce is no longer the crime of "collusion" that it was in 1969, divorce is still easy only when it is amicable, when both parties are in basic agreement to dissolve the marriage. My parents colluded behind the scenes, and my mother was persuaded to charge "cruel and inhuman treatment". But divorce is still not easy when one spouse objects to dissolving the marriage. The state sides with the resisting partner, at least to the extent of placing the burden of justification on the other.

My point is not that most marriages are violent, although a great many people do experience some violence from a spouse. The point is, rather, that victims of violence — whatever their number — are trapped by marriage in what may become a lethal relationship. Even if many lucky people experience great joys in their marriages, they do so at the cost of grave peril to others.

Lesbian and gay agitation for the right to marry would, if successful today, give us unions that are burdened with these perils. That is why I oppose it. We should not seek marriage rights. Rather, we should oppose the whole idea of legitimacy in voluntary intimate unions, so that there is no more distinction between legitimate and illegitimate intimate unions or partnerships than there is between legitimate and illegitimate births.


 
Claudia Card is Professor of Philosophy at the University of Wisconsin, USA, and Associate Professor of Women’s Studies and Environmental Studies. Among more than a hundred books and scholarly articles, she has written The Unnatural Lottery: Character and Moral Luck and edited the book series Feminist Ethics. Based in Madison, Wisconsin, she works in ethics, social and political philosophy, feminist philosophy, environmental philosophy and lesbian culture