The Marriage License (1955) Norman Rockwell
Nicole Souter (NS): To begin with your recent book Against Marriage, you argue that liberals should continue to object to the state’s recognition of marriage. Why is this? Clare Chambers (CC): In Against Marriage, I outline two main kinds of objections to marriage: 1) objections based on equality, and 2) objections based on liberty. My writing on equality is aimed at any egalitarian, whilst objections based on liberty are targeted at political liberals, although they can apply to anyone who supports liberty. I essentially try to demonstrate that what I call a marriage regime, by which I mean a state that recognizes marriage, undermines both equality and liberty. To take an example related to equality, when the state recognizes marriage it gives married couples a bundle of rights and duties. In England and Wales, for example, married couples are given rights related to parenthood, immigration and taxation. In regulating marriage via the bundling of rights, the state offers special considerations to married couples, reinforcing marriage as the default relationship. This clearly violates equality as couples that do not marry are denied access to the same bundled rights, and it shows that the state favours a very specialised relationship.
NS: In recent years, there has been a global shift towards the legalization of same sex marriage. Once everyone can access marriage and the rights associated with it, does it remain an unjust institution? CC: When I first started working on Against Marriage, same-sex marriage was not recognized. So the first question I asked myself was, “If marriage were reformed, would it then become OK?” I concluded the answer was “no”. Recognising same-sex marriage is certainly a step forward, but there remains an implication that marital relationships are the most important forms of relationship. Those that are not married cannot access the same legal protections as married couples. So there are two groups of people who remain vulnerable in a same-sex inclusive marriage regime: 1) those who could be married and choose not to be, and 2) those who are in important relationships that do not align with marriage. NS: One liberal principle that you believe marriage violates is neutrality. How do you define neutrality and why does marriage violate it? CC: Neutrality is the belief that the state should not justify any of its laws by relying upon one particular notion of “the good life”. The state therefore cannot justify recognising marriage by appeal to the Bible, for example, as many members of the population do not believe that the Bible is an authority on how to live. Strict neutrality states that a law should not violate any reasonable conception of what is good. Marriage, by favouring certain world views and violating others (such as non-monogamy and bohemianism), is a violation of strict neutrality. NS: If the state abolished the institution of marriage, how could it regulate relationships in a manner which avoids the bundling of rights? CC: The first step in answering this question is asking whether the state even needs to regulate relationships. I believe that it does. People can often be made vulnerable in relationships by abuse of power imbalances. Therefore, when settling questions related to ownership of property or child custody, laws are necessary in order to protect vulnerable parties. However, protection should not arise from bundled laws, but rather from laws based on relationship practices. What I argue is that, instead of marriage, the state should focus on different things we might do in a relationship like having children, sharing a house or sharing financial assets. It should regulate those things separately. I certainly don’t think that changing the legal structures of marriage recognition will solve all of the problems related to marriage as there will remain the social problems connected with it such as the sexist imagery of weddings, the inequitable division of household labour or discrimination against the unmarried woman. However, having marriage as a legally recognized category worsens social issues because it legitimizes the idea that conventional marriage is special. NS: One issue that you raise is the state’s interaction with religion in relation to misogynist elements of religious ceremony and culture. How should the state tackle feminist problems relating to religion? CC: Currently, religion is given a special place in the UK. There is an established church with a constitutionally special place, but beyond this religions in general are given particular rights and exemptions. For example the Catholic Church is legally permitted to employ only men as priests, even though other employers cannot choose to discriminate against women. There are not adequate grounds for treating religions differently, so when we’re thinking about concerns relating to equality and discrimination, we ought to treat religions in the same way that we treat other voluntary and employing groups. By giving religion a special exemption from equality law, the state implies that it is justifiable to treat religious opinions that conflict with equality laws differently from non-religious opinions that conflict with equality laws. However, this is a very difficult issue and we need to be very careful, particularly in the current climate in which people from minority religions and races are facing a very hostile environment from mainstream government. We see growing anti-immigration sentiment, including in the UK and the USA. Crucially, any philosophical criticism of religious exemptions needs to be tempered with an awareness of the real world. There is an important philosophical discussion about what we should do which might not always translate into the best policy at any given moment.
NS: To turn to your first book, Sex, Culture, and Justice, you ask, “If an adult wants to undergo a dangerous procedure or take part in a harmful practice, with what legitimacy does the state prevent them from doing so?” Under which circumstances do you believe the state can override individual choice? CC: The traditional liberal way of thinking about things – John Stuart Mill is a really good example here – is to say the state shouldn’t get involved to stop you hurting yourself. It should stop you hurting other people but not hurting yourself. One objection to that thought is that if you’re hurting yourself really badly, the state has a duty to stop that really serious harm. This idea justifies all kinds of laws that we have like wearing a seatbelt and the prohibition of dangerous drugs. I agree that harm is an important consideration, but then I argue that there’s another consideration that we need to make related to the reasons that people might engage in harmful practices. Those reasons are often tied to social norms, under which the harmful practices will be required or beneficial in our social context. If our social norms are encouraging people to do things that harm themselves then it is the social norms we ought to be looking to change so that people don’t have that incentive. So I talk about all kinds of different harmful practices, which might range from practices of inequality to practices of physical harm such as smoking. When the reason that someone might choose a harmful practice is just to comply with the social norm or get the social benefit then that’s an injustice that the state has a duty to prevent.
NS: You frequently refer to social construction. What is it and how does it relate to questions of feminism? CC: Social construction is the process by which social norms and pressures shape our actions and our preferences. In Sex, Culture, and Justice I talk about two different ways that our actions are shaped by social construction. One is that social construction affects what options are available to us, so you can’t be an opera singer if there is no such thing as opera – you need the social form to exist. Often, societies will make some options available to some people and not others. The other way that social construction affects us is through shaping our preferences. We generally want to conform with social norms. We might want to conform simply because we might want to get the benefits that arise from conformity but we often internalize societal preferences quite deeply. I use the example of fashion and appearance here. You may want to comply with the rules of fashion and appearance because you know that it’s going to benefit you (for example, wearing appropriate clothes to an interview will help you get the job). However, you may comply with fashion norms because you have internalized societal fashion trends. We’re familiar with the idea that fashions change – the clothes we thought looked really good last year may now seem terrible! Our tastes and our preferences change in line with the social context. This is a difficult thing for liberals to take into account because their beliefs tend to be governed by notions of choice, but the fact that our preferences are shaped by our social context calls into question the extent to which choice is absolute.
NS: If norms are so deeply ingrained as a result of social construction, why not just revert to a form of cultural relativism?
CC: This is one of the objections that Anglo-American liberal theorists make to someone like the French philosopher Michel Foucault. Foucault argues that power is everywhere, in every interaction; liberals worry that his notion of power makes it hard to identify and counteract specifically oppressive or unequal power.
I would not advocate abandoning the idea of universal principles because we can clearly see from our own experience and observation of the world around us that there are good and bad outcomes – there’s suffering and there’s flourishing, there’s oppression and there’s equality, and because we can see that certain decisions and practices are fundamentally better, we must seek to identify them. What we need to do is combine an awareness of social construction with a normative perspective, an idea of some value we want to put forward, which is where the values of equality and autonomy still have a role.
NS: Could the search for and implementation of universal principles not be construed as neo-colonial – the implementation of Western principles with no regard for culture and tradition?
CC: There is a clear political problem in one group criticizing another group’s culture: the criticised group can quite clearly see that the criticising culture also has flaws. Politically we have to be really careful about such cross-cultural critique. I think the right way to think about this is that if we see something in a different culture that seems really problematic, wrong or unjust to us, we need to reflect on that practice and see if there is anything analogous in our own culture that has similar features. The example I used in Sex, Culture, and Justice was drawing a comparison between female genital mutilation and Western beauty practices such as breast implants. I would now extend this argument to labiaplasty and other cosmetic procedures on the genitals that have grown in prevalence over the last decade since the publication of the book.
NS: Given the extent to which patriarchal beauty norms have been imposed onto and internalized by women, do you think women could ever reach a position in which our decisions are not dictated by the influence of the patriarchy?
CC: I hope there could be. But I don’t think that any of us will ever be in a position where our decisions are not influenced by our social context, so I don’t think that’s the aim. We can find ways in which women’s positions have improved: equal rights under the law, employment, education, and the position of women in marriage. There are lots of ways in which women have a much better situation than we did once. But equally I think there are ways in which it is much worse. The appearance-related anxiety that is suffered by women is much worse than even ten or fifteen years ago. This is closely connected to social media and the “selfie culture” as there are now many more ways in which we submit our bodies to being looked at, inspected, approved or disapproved of. Beyond this, pornography culture has also worsened considerably in terms of levels of inequality, the portrayal of women therein, and how ubiquitous it has become. Overall I see areas which are improving and areas which are deteriorating.
NS: You mentioned pornography just now. Do you find the concept of pornography itself to be problematic or simply the misogynist elements of the porn industry? CC: If you define pornography in a neutral way, to mean “explicit depictions of sexual activity”, then I don’t think that it’s necessarily problematic. We can certainly imagine examples of explicit depictions or descriptions of sex that are equal and visibly consensual. Unfortunately pornography, especially since the development of the internet, has generally not been like that. It tends to eroticize inequality, and that’s not very surprising because in contemporary Western societies, the dominant model of sexual interaction is unequal. Male dominance and female submission can be what, to put it bluntly, turns people on. NS: In Against Marriage you utilise prostitution as an example of a sexist form of work so I am curious as to your position on the legalisation of prostitution. CC: I generally endorse what is often called the Nordic model – being a prostitute is not criminalised but there is criminalisation of people who buy sex. This model fits in with my general approach which is thinking about who is doing the harm.
NS: Where does the harm arise if prostitution is tightly regulated so that prostitutes decide which situations they are willing to be in? CC: It’s never possible to ensure that that no harm is caused. Prostitution is a vulnerable activity so it is not possible to make it completely safe. One of the really major problems from a philosophical perspective is that it involves unwanted sex. Prostitution is having sex that you wouldn’t have unless you were being paid for it. You could say that this is the case with every job – it involves doing things that you wouldn’t do if you weren’t paid to do them. But we generally think there is something particularly problematic about having unwanted sex. NS: What makes sex philosophically distinct from any other service? CC: We do treat it differently, as, for example, rape is a different level of seriousness than other kinds of crime against a person. We do have the idea that there is something different about sex and I don’t think that it’s something that we can take away. Another way of thinking about the difference between sex and other forms of work is this. If prostitution or sex work were a job like any other job then that would imply that it would be OK for a job centre to say to an unemployed woman seeking benefits, “You can’t have benefits because you could get a job as a prostitute.” Most people would, rightly, not agree with that approach, because they would see that prostitution is not like other sorts of work. NS: I thought I would close with a couple of more general questions. What actions should an individual take to combat sexism? CC: The things we do in our daily lives and our interactions with other people make a big difference because we exist in a social world, and so our actions can’t help but affect the social context of others. I think we all have different paths – for some people political action and activism is absolutely their calling, while for others it is writing and teaching. There are lots of ways that you can make a difference. NS: To what extent have the #MeToo and Time’s Up movements changed gender dynamics in society? CC: #MeToo is really interesting because the impression I got from the #MeToo campaign was that men were very surprised by it and women were not. #MeToo really made it clear that women are constantly suffering sexual harassment and men aren’t necessarily aware of that. I think #MeToo was really important as it gave women a way of coming together and expressing real dissatisfaction. It was a good use of social media. Clare Chambers is Reader in Political Philosophy at the University of Cambridge. Her main interests are: contemporary feminist theory, contemporary liberal theory, and theories of social construction. Her award-winning book Against Marriage: An Egalitarian Defence of the Marriage-Free State has just come out in paperback. clarechambers.com / @DrClareChambers Interview by Nicole Souter.
From The Philosopher, vol. 107, no. 2 ('Us and Them'). Read more articles from The Philosopher, purchase this issue or become a subscriber.