I am a married lesbian. Let’s just start there. I blame health insurance, ok? A woman needs it and marriage is considered a “qualifying life event” in the insurance world. Our one year wedding anniversary is coming up in a few weeks, and my home state of New York just legalized same-sex marriage on Friday night. Oh joy!! So let’s talk about MARRIAGE, huh? And yes, please be forewarned that this will be a US-centric post because that’s my context.
As a political matter, I am actually opposed to marriage as a legally recognizable relationship. Gay Inc. has gone wildly conservative supporting a blatantly oppressive patriarchal institution that was specifically designed– and still used!– to control female reproduction and autonomy. I mean, really. Marriage is not cool. See the graphic above and don’t act shocked about marital rape FINALLY being outlawed as recently as 1993! By supporting marriage, similar to celebrations of “gender,” the homo political agenda has chosen to fully embrace a fundamentally conservative social concept without regard to the female-specific harm it is responsible for. I am simply stating the obvious: the LGBTIAQQLOLWTF movement supports misogyny and substantially fails to represent the interests of its female participants.
So, you know, I’m happy for all us married lesbians and gays. We enjoy some nice legal protections. And, by the way, our weddings are way more fun than traditional straight weddings. We’re breaking the rules from the word GO!! Just a heads-up for any future ceremonies you might be invited to. I’m happy for us! I really am. But I have no intention of defending the institution of marriage. Rather, I’d like to see a radical re-conceptualization of legally-enforceable personal relationships and what values we aim to protect or express through them.
As an example of a unique marital benefit, let’s look at spousal privilege. It protects some kinds of marital communications as confidential and functions very much like attorney-client privilege by protecting one spouse from sharing evidence and/or testifying against the other in court. This is one of my favorite marital benefits! The wife and I have secrets from the government! Ahahahaa! Take that, Big Brother! I remember Rosie O’Donnell complaining about not being allowed spousal privilege in her very public and acrimonious breach-of-contract case several years back. Basically:
Because they are not a married couple [though they had a civil union], she and Carpenter were denied spousal privilege, meaning that Carpenter had no legal right to refuse to testify against O’Donnell, even through they have four children, and have been together for six years.
“As a result, everything that I said to Kelly, every letter that I wrote her, every e-mail, every correspondence and conversation was entered into the record of this case,” O’Donnell said. “After the trial, I am now, and will forever be, a total proponent of gay marriage.”
ABC News. This situation illustrates a mutually desirable exercise of spousal privilege. The original intent, however, of this “privilege” was surely to protect male behavior: those things that husbands tell and also do to their wives. Unfortunately, “Spousal abuse is prevalent throughout our society, and no race, ethnicity, or economic class is immune.” As usual, women are the overwhelming victims, and males the overwhelming perpetrators, of domestic violence. Considering our patriarchal context, spousal privilege actually makes perfect sense, then, doesn’t it? Despite the fact that spousal privilege laws apply equally to both sexes, when operating under the conditions of male supremacy, it has created a disparate impact. Spousal privilege hits women harder. Literally. When women sustain more damages from the same law, it becomes a female-specific concern. It is a feminist issue.
As such, feminists have advocated for a legal exception to the exception– I mean, an exception to the spousal testimonial protection– for when one spouse has committed a crime against the other. Makes sense, right? Women must be able to TELL. THE. TRUTH. about how they are being treated behind closed doors! So what happens if your spouse does commit a crime against you? Could the battering spouse still disallow the victim spouse to testify about abuse that happened between them? Yes! This could happen!
In 1995, Texas joined the majority of states by abolishing the spousal privilege in cases where one spouse is charged with a crime against the other spouse. But in some states, waiver of spousal privilege remains conditionally optional. Just a few days ago I read this story about some married lesbians:
Deborah Snowden was charged with assault and reckless endangerment for allegedly threatening Sha’rron Snowden with a knife. When called to the stand, Sha’rron refused to testify against Deborah invoking the spousal privilege.
The ACLU and Lamba Legal even filed a joint brief in favor of the validity of the Snowden marriage (yay gays, I guess) and, therefore, of Sha’rron Snowden’s right to remain silent against her abuser. By finding that their out-of-state marriage was recognizable, the Maryland court also determined that the state’s spousal privilege law applied to the Snowdens’ domestic dispute. We will never know what kind of pressure or threats Deborah may have used to secure Sha’rron’s silence.
Swinging the pendulum all the way in the other direction, some states have gone so far as to frame domestic violence as a crime against the state, thereby compelling spousal victims to testify against their abuse.
In every other crime, prosecutors compel testimony. Failure to enact statutes that create an exception to the spousal privilege sends the message that the state views wife beating differently than stranger assaults. This reflects societal attitudes that it is not a crime to beat a spouse, mainly a wife.29
Renee L. Rold. All States Should Adopt Spousal Privilege Exception Statues, J. Mo. Bar Vol. 55 No. 5 (1999).
Now, I’m not going to delve any further into the feminist debates surrounding prosecution of spousal crimes because my central concern is about marriage. It should be clear that entering into the marital relationship has many serious and complex legal consequences, and that this is especially true for the “wife” half of the arrangement because marriage was originally structured by men to serve male interests, which necessarily operate at female expense.
So what to do about the marriage relationship? Well, despite my distaste for the traditional terms of marriage, certain kinds of life experiences and interpersonal connections continue to deserve legal protection. As a result, I think we have to replace marriage with alternate relationship-forms that may achieve some of the same purposes, but without the harmful effects to women.
In her classic 2000 article entitled A Radical Dyke Experiment for the Next Century: 5 Things to work for Instead of Same-Sex Marriage, Betsy Brown suggests that:
We should develop the concept of designated next-of-kin (DNOK). This would be like domestic partnership, except more inclusive. You could name any number of people as DNOKs–friends as well as lovers. You would have the right to include–or exclude–any of your biological relatives. Your DNOKs would have automatic rights to visit you in the hospital, make medical decisions for you if you were incapacitated, assume custody of your children when you die, and inherit from you in equal shares.
These various social powers need not be exercised or assigned symmetrically. For example, you might want your sister to be able to visit you in the hospital, but not assume custody of your children when you die. You might want your domestic companion make medical decisions on your behalf in the event of your incapacitation, and your friend who likes goats to inherit your house.
Currently and historically, marriage acts as a kind of short cut for many of these decisions. It also offers a few unique benefits, like the spousal privilege protection discussed above. We should separate these legal benefits from the traditional “marriage” structure, and allow them to to be attached to other kinds of legally recognized relationships. I like the term Designated-Next-of-Kin because it speaks to both intent and intimacy. Both parties’ written assent should be required for each “power” granted or assigned, and any of them could be individually terminated at will, by either participant (survival clause, please!) except where there might be dependencies between the powers. For example, you might decide that you are no longer willing to take custody of so-and-so’s children, but still want to be able to visit her in the hospital– you’d simply modify the relationship agreement like you would any contract.
Then, we’d also have to set up separate relationship responsibility structures for minors and disabled people, including some elders. Guardianships, adoptions, wills, power-of-attorney, etc, already provide the frameworks needed for most of these situations.
Other feminists have described marriage’s short-comings as a a result of:
…the law’s focus on the “Husband/Wife dyad” 182 (i.e. the coupled heads of a household) as opposed to the “Mother/Child dyad.”183 [Martha Fineman] proposes abolishing marriage as a legal category in order to raise all intimate relationships—including nonsexual, dependency-oriented relationships—to the same level of legal support and recognition.184
Demoya Gordon, Transgender Legal Advocacy: What Do Feminist Legal Theories Have to Offer?, 97 Calif. L. Rev. 1724 (2009).
So, really, what does SEX have to do with any of this? Nothing at all! Demanding exclusive sexual access to another person is a means of control, not of support. Sexual monogamy doesn’t necessarily benefit either party or society in general. In fact, given the socio-historic tradition of strictly limiting the marital relationship to one male and one female, controlling sexual access amounts to nothing less than state-sanctioned male ownership of female reproduction. Mention of sexual activity should be unconditionally excluded from legally recognized relationships. It is irrelevant. The state has no business telling adults who they can and cannot have sex with, regardless of how many Designated-Next-of-Kin one might be legally involved with.
Marriage has traditionally served as the backbone of patriarchal social organization that enforces compulsory heterosexuality and supports male power. Its historical legacy can be traced directly back to divinely-justified misogyny and male control of reproduction. Women are wise to oppose any political movement or ideology that seeks to celebrate this out-dated institution! We can do better. Using radical feminist analysis, we can identify a few redeeming marital benefits that foster virtues such as trust, mutuality, stability, and support. We must then isolate these elements and transfer them to non-sexual, non-religious, legally recognized relationships that are designed to serve and protect women. Now, that would be radical.