Marriage: Public Institution or Private Contract

Abstract

For many critics, the very existence of the institution of civil marriage compromises the liberal state’s claim to neutrality by according moral privilege to a particular way of living. Although it purports to afford a private space within which the participants can develop their capacities for intimacy and care, its boundaries as a status afford little flexibility. I believe that if we relax somewhat the terms on which we offer the material benefits of marriage to more varied family forms, we can retain civil marriage as a public status without succumbing to perfectionism. First, as long as public authority exists, regulatory policy exists also even in the absence of regulation. Second, public policy may have the effect of favoring some ways of life as long as it is not justified by arguments that these ways of life are superior to others. If the existence of civil marriage is viewed not as an intrinsic good, but as an instrumental good through which persons may achieve their private aims, it need not function as a state-sanctioned preferred way of life. It affords what has been termed “public privacy” or a buffer zone of privacy for its participants through the affirmation of commitment in the eyes of the community.