“Civil Union Law: A Modest Proposal”?

Professor Robin West has recently published a short article in the current alumni magazine Georgetown Law which borrows from her recent book, Marriage, Sexuality, and Gender. The article entitled Civil Union Law: A Modest Proposal is available [HERE].

Her take on civil unions is very interesting to read; however, her proposal is not a modest one.

She begins her “modest proposal” with a critique of the institution of marriage and the traditional laws that regulate it by suggesting that marriage “poses a political question requiring democratic resolution.” I don’t think she specifies what the question (or problem) is that requires resolution. While her effort is cast as a noble one, it appears that the objective toward which she labors and the justification for it pose challenges not only to democratic resolution of underlying issues, as she identifies them, but to the common good of society and the posterity of its members. Her fascinating understanding of traditional marriage misunderstands that it is, by its nature, a covenant, which in vows and exchanges of consent expresses a complementary commitment of love. Her counterproposal to replace it is an appropriation of the problematic dicta of Casey that there is “a realm of personal liberty which the government may not enter… At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Because of her subscription to this kind of exaggerated freedom, she sees 19^th century marriage as “a patriarchal institution” and marriage of the mid-20^th century as “a purely traditional institution, widely viewed as delineating gender roles, sexual mores, and a conception of the good life that jointly constitute the natural foundation of civil society.”

For her, marriage was transformed after 1970 and became something different in the early 21^st century mind: the product of Casey’s understanding of liberty—less of an enduring institution and more of personal choice. As she asserts in her critique, “Parties [now] enter marriage when and if they want to and with partners of their own choice”, and it is a “custom design” institution of their own making. Cohabitation may or may not lead to marriage, and Professor West, unlike myself, is not troubled by either path to which cohabitation may lead. But, she should be. The reason she is not is because she suggests that persons should be able to “contractually mimic the benefits of marriage without entering the legal relationship.” [Emphasis mine] I think this contention of hers overlooks the fact that marriage is supposed to remind individuals not only of self-established rights freely chosen but also freely embraced responsibilities they owe to the other spouse, their children, and the society that does or should encourage them in their spousal, parental, and societal obligations.

Professor West intimates early in her “modest proposal” that marriage has “become a much better deal for both sexes, but most profoundly, for women.” Her rationale for this appears to be largely based on the notion that potential or existing parties to marriage now have the right to be left alone without much, if any, sense of duty, and can take the relationship to wherever they choose to go with it. As she states, the marriage partners “have the power to avoid marriage altogether, if they so desire, or to exit it, if need be.” These points apply particularly to women, who are also free to become mothers “outside of marriage” and can do so “with very few legal impediments”, such as the right to abort their children. Once again, Casey’s formula for liberty has played a prominent role in her “modest proposal.” The good that has been achieved for Professor West in the institution’s evolution is presented in her declaration that marriage “has become a more liberal institution, and women are somewhat more equal, and much freer, as a result.” Yes, indeed, members of both sexes appear to be very free of any expression of responsibility to themselves, to their spouse, to their children, or to society as one follows the explication of her “modest proposal.” But I do not view this as a good as does Professor West; rather, I see it as a tragedy or one in the making.

At this point she professes that marriage “has become a political question, and hence a matter for public deliberation.” The tribute that she has paid to marriage now begins to evaporate. I would not disagree that marriage has surely been the subject of laws made by most state, and previously colonial, legislatures. However, I think what the author has in mind is that marriage can remain a “political question” insofar as the political and legal mechanisms of American society reflect her views of marriage and what it should be and by what it should be replaced. When these mechanisms do not concur with her position, let us use the example of the legislative efforts to restrict or prohibit same-sex marriages or civil unions or to define marriage as the union of one man and one woman, I think she would not allow for this sort of public deliberation.

In support of my interpretation of her “modest proposal” I consider her statement that marriage is not only an issue of “individual choice” (such as terminating a pregnancy) but something that reflects and supports her views on what is normative and what is not. While she seems to assert the contrary in her statement, “it is the need for political judgment, not individual choice, which now presses upon us,” it is clear from the rest of her “modest proposal” that civil unions—be they heterosexual or homosexual—will become the substitute for marriage and the obligations marriage has entailed for so long. As she states,

My long-range goal…is to redirect the movement for same-sex marriage in a way that will not compromise its commitment to formal equality, but that will also address directly definitional and normative questions about the nature and point of marriage. I want to fashion a proposal for political reform of marriage that will turn the debate away from that of who may enter, and instead toward the question of the value of the house then occupied.

Her immediate goal is to place into the “public debate” the “reform” of marriage—which for her is the establishment of civil unions, as she defines them, as the new norm. While she professes that she is not in the camp that wants to eliminate marriage, her “modest proposal” will do just that because, as she states, her understanding of civil union will “over time, become the legal mechanism by which any two people—regardless of sexual orientation—who wish to commit themselves to the lifelong care of each other and their shared dependents, formalize and sanctify their intention and desire to do so.” She notes that this “modest proposal” would provide the sanction and protection of the state by material and moral support. Her justification for this state role is founded on undefined “desirable social ends” in which the state has “a not inconsiderable interest in promoting.” My skepticism of this portion of her “modest proposal” is founded on her earlier recitation of the expression of liberty she wants associated with civil unions minus the responsibilities that traditional marriage incurred. Here she asserts that civil unions would be permanent; but is this really her objective? I think she has put aside her earlier concerns about traditional marriage that focused on what might constitute needs to end the traditional marital bonds by retaining the power “to exit it [the civil union], if need be.” What is permanent in an early assertion becomes temporary in a following one. The nature of her proposal is not so modest when one considers that, if accepted, it will replace marriage with a “mimic”, to use her word, that will make its partners “fully entitled to all the privileges, rights, and benefits currently given to married couples.” As she states, “There would, ideally, be no practical or legal difference between the two legal regimes, except that civil union would be considerably more ‘open’ in terms of who might enter.”

It is vital to the survival of marriage, as American society has long embraced it, to realize that Professor West’s “modest proposal” is a wolf in sheep’s clothing: it opens the door to many combinations and permutations, such as multiple-member “civil unions”, that take little regard of anything else other than the parties’ desires. While she appears to insist that a civil union will be restricted to a partnership of two, what would prevent those persons seeking equality for, let us say, polygamous unions to join in the “public debate” so that their claims to “equality” are satisfied too? Building upon Professor West’s “modest proposal,” why should these citizens who have a role in the “public debate” have any less equal interest in Professor West’s conclusion that there “just isn’t any good reason for the state to take an interest in whether that couple’s sexual activity is contracepted or not; or whether it is coital, digital, anal, oral, or missionary; or whether it is masturbatory, coupled, or involves multiple partners; or whether it is monogamous, polygamous, polyamorous, or open; and so on.” Since the state has no legitimate interest in these matters, why should it have a legitimate interest in the number or the age of the parties to the civil unions that are at the core of her “modest proposal”?

In short, Professor West’s “modest proposal” is a recipe for whatever an association of people want the union to be because it “expand[s] choice” by intensifying “the cumulative effect of many individual choices [that are] in turn guided by evolving social and cultural norms.” She is open to her “modest proposal” defining the civil union “so that it is available not only to same-sex conjugal couples, but also as an option for straight couples, couples consisting of ambiguously sexed individuals, and nonconjugal couples of any combination of sexes and sexual orientations, as well.” And when this is accomplished, who knows where this new “norm” would go after it has been accepted as a parallel institution that would not complement but would compete with marriage?

But Professor West suggests that this is not the case when she states,

A heterosexual couple could either civilly marry, or civilly unite — the difference at the point of licensing might be (as Chai Feldblum has helpfully suggested in private conversation) nothing but the color of the form filled out. The choice between them also might, however, reflect the couple’s view regarding the nature of the state’s interest in their union.

But, I ask, what happens when the public debate, the political process, and the state conclude that there is no need for different colored forms when one will do, regardless of its color? While Professor West again suggests that civil unions in conformity with her “modest proposal” would be more durable than marriage, she offers nothing that will justify this bold assertion. Moreover, she concedes that civil unions will be no more durable than conventional marriage when she concludes that a civil union “is open to change; it is intentionally malleable.” And this would include the change and the malleability afforded by dissolution. She concludes her article by stating that a civil union should not be viewed as transitional; however, under her “modest proposal” we ought to consider marriage as the “transitional institution” since it is “historically rooted in irrational traditions, imposed for centuries on unreflective boys and powerless girls, serving rarely explicated and never well understood state needs for eugenics, population control, female subordination, and sexual discipline.” I fear that she does not see that it is her “modest proposal” which is far more transitional since there is nothing to anchor it other than human caprice.

Professor West has crafted a fascinating proposal, but it is by no means a modest one.    RJA sj