Welcome to Ban Week, in which Splinter writers build a case for burning it all down.
Marriage is a political institution and a personal achievement. It’s the best choice you ever made and your greatest regret and maybe something you did because you were of a certain age so really why not. It’s a covenant with God and the reason you lost your housing subsidy. It’s a pathway to citizenship and a party that set you back $300 for mason jars. It’s a drag on men and a scam of the patriarchy. It’s a privatization scheme and a profound expression of romantic optimism at a time when everything else seems to be falling apart.
To be married in the United States today means so many things that identifying the act’s precise political contours can feel like sand moving through your fingers, but marriage, at its conservative core, is a tool of the state that confers and withholds legitimacy and material benefits. You can tell your partner you love them and will never leave them, you can speak your vows into the air, but you’re not married until a piece of paper issued and stamped by a local bureaucrat says you are. That’s marriage.
But it is possible to have a system in which the basic meeting of needs, the creation of citizenship, and the various burdens of care have nothing to do with whether or not you say you’ll fuck the same person for the rest of your life. It is possible to resist the state’s scheme to pass off its responsibilities for these things under the banner of love by demanding a more robust welfare state, a redistributive tax system that reverses wealth consolidation, and more just immigration laws.
This is a political moment in which we are witnessing new and inventive forms of political cruelty on a near-daily basis, but it is also a time during which mainstream discourse is grappling—often in unprecedented ways—with the meaning and importance of the public good and universal programs. So what if we also used this opening to try to better understand what marriage is and what it does—the things it makes possible and the things it puts out of our reach?
What would it look like to ban marriage?
According to the Office of General Accounting, marriage opens up 1,138 distinct rights and privileges that other relationships—including unmarried couples but also non-conjugal relationships of all types, which means the extended kin relationships that define a growing number of U.S. households—can’t access.
These include everything from laws around stalking to whether or not you get to remain on land designated as a national park in the event of a loved one’s death, but what they all have in common is a designation of which relationships are legitimate in the eyes of the state, and which are not. An uncle, aunt, cousin, or best friend may have been the person living and working alongside you all these years, the ones sharing the utility bills and listening to your stupid stories, but they largely aren’t eligible for any such protection or preference if you die or find yourselves in crisis.
United States v. Windsor, the landmark Supreme Court ruling that in 2013 opened a political dam and created a pathway to legalizing same-sex marriage in all 50 states, was a case about love, about the bonds formed through long-term partnership, and about the many ways in which the state demeaned same-sex couples and deprived them of equal protection under the law. It was also, at bottom, about a tax burden of $363,053, which Edith Windsor fought to reverse after her wife, Thea Spyer, died and left her a $4.1 million estate.
The Defense of Marriage Act, which was signed into law in 1993 by Bill Clinton, banned the federal government from recognizing same-sex unions for the purposes of government benefits and other programs, which meant Windsor could not claim the spousal deduction that would allow her to avoid paying taxes on her sizable inheritance. So she went to court to fight it, and her case wound its way through that system until 2013, when Justice Anthony Kennedy cast the deciding vote in her favor.
The ruling was monumental for many reasons—including its clear articulation of the ways in which legal marriage, in addition to its cultural and emotional resonances, is explicitly about our material lives. It is a contract that structures our economy and stands in as poor substitute for the welfare state. In the eyes of the government, love is an afterthought.
“That is one of the biggest paradoxes about marriage,” Priscilla Yamin, an associate professor of political science at the University of Oregon, tells me. “We think of it as so private, as though it doesn’t have a politics.” But marriage does have—always has—politics, and they are profoundly conservative and exclusionary.
The story we often tell ourselves about modern marriage is that it had its origins as an institution meant to maintain power and property for white men, but has evolved over the years to become something more democratic—about love, romantic choice, and mutual care. This is true to an extent. Most conjugal couples, in the wake of Loving v. Virginia and Obergefell v. Hodges, can now marry if they want to. We also no longer enforce laws that stripped women of their citizenship if they married a non-citizen man or consider women the property of their husbands.
But as we’ve seen in recent demographic shifts in who marries in this country and who does not, the institution remains, in almost every way, about the preservation of class status.
Rich people are far more likely today to get married than poor people. There are good reasons for this: The legal protections of marriage allow upper-income and middle class households to reproduce and protect their wealth. (For the extremely wealthy, this process more closely resembles dynasty-building.) For the poor in that same system, marriage can mean losing already insufficient welfare benefits like food assistance, childcare supports, and housing subsidies. The logic behind each choice is pretty straightforward.
As the historian Stephanie Coontz wrote in 2012, single parenthood, which constitutes a growing share of our households, is often blamed for poverty, and black women are uniquely pathologized on these terms. But the fact is that single parenthood isn’t a cause of poverty. It is often a strategy low-income women use to navigate a system rigged against them:
Non-marriage is often a result of poverty and economic insecurity rather than a cause. Unemployment, low wages and poverty discourage family formation and erode family stability, making it less likely that individuals will marry in the first place and more likely that their marriages will dissolve.
Blaming single mothers for poverty also erases the poverty that exists in married families, which is much higher in this country than in other similarly wealthy nations. And yet, there is no shortage of conservative think tanks or politicians recycling the same argument about marriage as a cure for being poor—as opposed to more direct means of addressing poverty like a higher minimum wage, a child allowance, and any number of social democratic institutions that already exist in other countries.
But in the United States, “the family has a lot of work to do to keep society going,” Yamin says. “In some ways, marriage is sort of like welfare. The state expects that families take care of each other rather than the state taking care of people.”
So we see that marriage is a bad system for curing poverty. And it has shown itself to be a poor substitute for coherent and humane immigration laws. But moving away from marriage as a gatekeeping institution is more complicated than just reworking our laws. After all, marriage is about more than just the license you get and the tax benefits that may accrue with it—it is about concepts of family, commitment, and adulthood. This is part of the reason it is so hard to imagine something beyond it, and why most of our political interventions into civil marriage have been about expanding access to it rather than doing away with it entirely.
It is difficult to name another institution that we experience so personally. Even once we start unwinding marriage from the material benefits it has historically conferred, there is still the social and psychological meanings of marriage that we are left to muck around in. People do not invite friends and family to act as witness as they submit their taxes or change their address at the DMV, but these are similarly bureaucratic errands that make us known and accountable to the state. Marriage is a paradox or a political hybrid or maybe some kind of institutional alchemy, but it is never simple.
There is nothing new about the political knot we find ourselves in when it comes to marriage. Queer theorists and activists have been at the forefront of this argument for decades, articulating the ways in which extended kin networks—non-traditional and chosen families—are devalued under a system that privileges marriage and romantic love above all other relationships, and how the focus on marriage and the military in the mainstream gay rights movement was assimilationist above all else. Their writings proved prophetic, as these assumptions about assimilation, the “good” citizen, and the exceptionalism of marriage were baked into the defense Kennedy wrote alongside his crucial vote in Obergefell:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The arguments of those resisting marriage for all these decades are just as relevant today as when they were being most forcefully advanced in the pre-Obergefell political moment. Particularly as economic precarity means abstaining from marriage or delayed marriage for so many in this country, there exists an opportunity to reimagine and expand how we define family—and adulthood—instead of retreating further into an institution that’s so clearly failing on its own terms.
But “banning” marriage might not be the most useful way to think about this political opening, so maybe instead we call it something else: an unwinding or de-escalation of marriage’s more coercive elements; a resistance to the privatization scheme of marriage as substitute for more universal structures around mutual care and providing for our material needs. If we can empty marriage of the political and economic consequences that either replicate wealth or lock people into poverty—freeing people to form romantic and familial partnerships on their own terms—then what comes in its place?
Think about the reasons people get married today: Love, of course. (At least starting around the late 18th and early 19th centuries.) Bringing family and friends together to declare your commitments and lubricate the social dynamics that animate so much of our lives. But also citizenship for mixed-status partnerships, health insurance, veterans benefits, help with childcare and domestic work (at least nominally if not in practice for most straight couples), the assumption that there will be someone around to care for you in your old age.
We know that alternative structures can be built to meet these needs. It’s possible to have what we think of as marriage—the love, partnership, and household anchor for child-rearing, living, and dying—without it being the central organizing principle for what it means to be a citizen and fully realized adult.
In 2013, when Windsor first heard that the justices had sided with her, she reportedly exclaimed: “I wanna to go to Stonewall right now!” The choice was both appropriate in that moment and strange. Forty-four years earlier, Marsha P. Johnson, a black trans woman who was just 25 years old at the time, lobbed a brick at police officers who had been systematically targeting and harassing the LGBTQ patrons of the bar, becoming a match that ignited the uprising at Stonewall. But on that day in 2013, a wealthy white lesbian would use the space as a site to celebrate a legal victory over the estate tax.
Windsor, whose activism and influence extended far beyond her Supreme Court case, was demanding fairness when she brought her court challenge. The question we have before us now is if we might start demanding something closer to justice.