In the first episode of the Counterintuitive Series on the Governance Podcast, Professor Clare Chambers (University of Cambridge) defends the ideal of the marriage free state. She argues that for reasons of justice and equality, the state should not legally recognise – and therefore, privilege – any particular form of marriage. And until it ceases to do so, we must consider its actions unjust.
Subscribe on iTunes and Spotify
Subscribe to the Governance Podcast on iTunes and Spotify today and get all our latest episodes directly in your pocket.
Follow Us
For more information about our upcoming podcasts and events, follow us on facebook, twitter or instagram (@csgskcl).
The Guest
Clare Chambers is Professor of Political Philosophy and a Fellow of Jesus College. She came to Jesus College and to the Faculty of Philosophy in the University of Cambridge in 2006. Previously she held academic positions at the University of Oxford and the London School of Economics, and has twice been a visiting scholar at UC Berkeley.
Prof Chambers is on leave from College duties from October 2018 until October 2021. During that time she has a Major Research Fellowship from the Leverhulme Trust to work on a project titled Intact: The Political Philosophy of the Unmodified Body.
Prof Chambers is a Council member of the Nuffield Council on Bioethics, the UK’s leading independent body informing policy and public debate about the ethical questions surrounding medical and biological innovations and research. She is also Editor-in-Chief of Res Publica, a journal of moral, legal, and political philosophy; a member of the Executive Committee of The Aristotelian Society; and the Secretary of the Britain and Ireland Association for Political Thought.
Full Transcipt
Paul Sagar
Hello and welcome to Counterintuitive, a podcast made in association with the Centre for the Study of Governance and Society at King’s College London. My name is Dr. Paul Sagar and I’m a lecturer in political theory here at the Department of Political Economy at King’s College London. Each episode in this series, I’ll be interviewing an academic or thinker or journalist, and asking them to defend a counterintuitive idea or position that they hold. I’ll be playing the role of devil’s advocate, or at least a sceptical inquirer, in order to see where the ideas take us. Of course, whether you agree with me or my guest is in the final instance entirely up to you.
This week on counter-intuitive, I’m speaking to Professor Clare Chambers. Clare is professor of political philosophy and a fellow of Jesus college at the University of Cambridge. She is a specialist in liberal political theory, feminist political philosophy there is of social justice and ideas of social construction. She’s the author of Sex, Culture and Justice – The Limits of Choice which came out in 2008, and also Teach Yourself Political Philosophy – A Complete Introduction co-authored with Phil Parvin in 2012.
Today, however, I’ll be speaking to Clare about her latest book Against Marriage – An Egalitarian Defence of the Marriage Free State. I’ll be asking Claire why exactly she thinks that the state should not recognise marriage. Dr. Clare Chambers, welcome to Counterintuitive.
Clare Chambers
Thank you very much. Hello.
Paul Sagar
So Clare, tell us why are you against marriage?
Clare Chambers
Well, of course, the first thing to say is what is marriage and what part of it am I against? Now you might think of marriage as being something about to do with relationships. So marriages, you know, when you think about marriage, one of the first things that comes to mind is a wedding, a celebration of your relationship, a party, you know, love, romance, commitment, stability, all those sorts of values. And it’s not that that I’m against, that’s not the thing that I’m objecting to in my work.
So instead, the sort of marriage that I’m objecting to, that I’m against is marriage as a state recognised institution. So it’s the thought that there is something particular about a certain kind of relationship that the state should recognise, should regulate and should endorse as being the better kind of relationship for people to have as compared to other relationships or no relationship at all. So then why be against that? Why be against the state recognising marriage? Well, there’s lots of reasons I suppose they boil down to two big, different principles, equality and liberty. And I can talk about each of those in turn.
Paul Sagar
Yeah, go for it. Why don’t you start with equality?
Clare Chambers
Okay, so it’s a real sort of commonplace criticism of the institution of marriage that feminists have been making for decades or centuries, that marriage has long been an institution to subordinate women, it’s been an institution that has existed largely to ensure that family, property and the associations between families and between men and women have been regulated in a clear way along patriarchal lines. Women have characteristically lost most if not all, of their legal independence on marriage. And so we have lots of feminists, John Stuart Mill, Mary Wollstonecraft, criticising marriage for its legal and equalities. And now, you might think that that sort of critique of marriage is just not apt anymore, because we no longer have that gender inequality in the legal regulations of marriage, it’s no longer the case that women and men are treated unequally in marriage. And so then you might think, well, there’s another kind of way that marriage has historically been unequal, which is that it’s historically been confined only to different sex couples, and same sex couples haven’t been allowed to enter into marriage. And that’s another problem for equality. And again, you might think, well, that inequality no longer exists anymore.
So in a liberal society, like the UK, where we recognise same sex marriage, where men and women are treated equally in marriage, by the law, what’s the problem of equality? And I’d say, well, there’s a variety of different problems for equality that still exist. So one problem is that sort of history and tradition of marriage still has a symbolic effect on the way we think about the institution now. So a lot of what we’re doing when we get married is we are participating in a tradition. We’re participating in ceremonies, which get their meaning and their significance from precisely that traditional status that they have. So if someone gets married now, what marriage means, what it represents, what it symbolises, does still have a connection to its past. So that symbol and connection to inequality is still there. But even if we set the symbolic aspects of it aside, still, marriage is a state recognised institution that creates inequalities. It creates inequalities, just most simply between people who are married and who are not married. And that’s just the kind of inevitable aspect of having a state recognised institution, you create an inequality between people who are in and people who are out of that institution. And so that means that state recognised marriage is still a problem for equality between married and unmarried couples, and between people who are married or people who are not in a couple like relationships.
Paul Sagar
Right, so that’s the equality side of it. What about liberty?
Clare Chambers
Well, so when we think about what the state is doing with respect and marriage, it’s doing a variety of things when it recognises it. Now it’s one thing that it’s doing, it’s structuring various sorts of regulations around marriage. So it’s saying that whether you’re married or not makes a difference for things like immigration, tax inheritance, who’s your next of kin, that sort of thing. So it’s creating a regulatory structure that is based on marriage. It’s also, in doing that, it’s also making a public statement about the value that is given to relationships that fit that structure. So when the state recognises marriage, it’s saying, look, there’s something special and valuable about relationships that fit this mould, which are, you know, two people in a monogamous, committed, romantic partnership, that’s a kind of relationship that has more meaning, more significance than other relationships. And so we might compare, you know, the significance of marriage, the significance of a long term friendship, or people who live with us, a sibling or people who live alone, or people who have more than one partner, and so on. And when the state makes that very public declaration, that one kind of relationship, one kind of family structure is more valuable, more important than others, then what it’s doing is making an intervention in claims about how people want to live their lives. It’s saying that there’s one particular way of life that we the state, recommend respect and exalt above others. And that’s a constraint on people’s liberty to arrange their lives in a variety of different ways. It’s an intervention in the controversial questions that ought really to be left to individuals to work out amongst themselves.
Paul Sagar
To clarify here, there are two arguments in play then. One that marriage given its historical formation, and where it’s come from, embodies certain sexist patriarchal residues and overtones. So even though marriage has become more equal, in many respects, between men and women than say, in the 19th century, and women are entitled to much more of say, their husband’s property and to rights over children, it’s nonetheless still, necessarily contains patriarchal sexist problems with it, but also that there’s a further argument here, which is that it discriminates by being state recognised against non heterosexual in particular, romantic relationships. So there’s two arguments here, I take it, which of those is the one that you that’s really most important and most decisive?
Clare Chambers
Well, I think, generally, my, the argument about equality for me are the most important because compared to the arguments about liberty, but then those two that you just described, are both arguments about equality, right, their arguments about equality in sort of symbolism, in representation, recognition, and then arguments about equality into the current legal status of people. And the argument about the historical sort of residues of inequality, I think, does still have a profound impact on the way we think about the institution. And there are so many aspects of marriage practice that just retain that deeply sexist sort of symbolism, ranging from, you know, quite minor aspects of the traditional Christian wedding ceremony, things like the father giving away the bride and the white dress symbolising legitimacy, there’s a very sort of symbolic aspects, but they do retain quite a great deal of significance to practices like the fact that women typically change their name on marriage and change their title on marriage from Miss to Mrs. And that is something again, that structures women’s lives constantly. So, you know, every woman who goes to buy something in a shop will be asked if she wants delivery or something, you know, what’s her title? Is it Miss or Mrs. You know, and on the phone, everyday kinds of interactions. So those sort of residues do carry on, and they are important, and they also relate to the extent to which people think that marriage is a necessary feature of a sort of successful life. So I think we still have a very strong sense that an unmarried woman beyond a certain age is, you know, a problem that she ought to worry about. She ought to concern ourselves with why she’s single and why she’s unmarried. That stigma is not applied to men. I think that is still an important aspect of the institution.
But the big question is, whether that will change whether that inequality that relates to historical sexism and heterosexism will ever weigh. And this was a big debate in amongst lesbian, gay and queer theorists when thinking about same sex marriage, right. So the movement for same sex marriage has been enormous. Mostly popular and successful politically. But not very long ago, perhaps 10 years ago, 10, 15 years ago, there was significant disagreement within gay, lesbian and queer theorists and activists about whether same sex marriage actually was something that would be good for people in those relationships, because there’s a sense in which clearly, the demand for same sex marriage is a move for equal rights. It’s a recognition of the equal status of people who are in same sex relationships. It’s a clear egaliterian move in that sense, but at the same time, it is a demand that lesbian and gay people take on the sort of symbolic residues and meanings of a traditionally heterosexual sexist institution. It’s a demand that lesbian and gay relationships fit that mould and show themselves to be respectable and committed and traditional and not yet different from what is taken to the norm. So I do think that that historical equality still persists. But whether the existence of same sex marriage will successfully work to change the meaning of marriage, as we understand it symbolically, I mean, that remains to be seen and something that I don’t have the answer to yet, we’re just gonna have to see how that turns out.
So then the question of the unequal treatment between people who are married and people who are not married, who might be straight, lesbian, gay, single mothers, single fathers, you know, people who are unmarried. I mean, that inequality is something that again, is amenable to, to change and to, to reform. So it depends partly on what the laws of marriage are in any given society, what kinds of privileges and rights people get on notice that they don’t get if they’re unmarried. And that’s something again, that can change over time. So one of the huge changes in marriage law in England and Wales recently has been the recognition of civil partnerships for different sex couples. And that sort of provides a different way of regulating relationships that doesn’t recall these sexist, traditional meanings of marriage, but that enables couples to get legal recognition and status and protection for their relationships. So that’s been an important change. But it’s not enough, because it’s still the case that couples have to be in a marriage like relationship to get the recognition. And really importantly, what you still have to do with a civil partnership is you still have to go along and register your relationship as a civil partnership, you have to make that move to opt in to the institution. And the huge problem then is what happens to people who have not done that, when relationships break down.
Paul Saga
So that brings up loads of fantastic issues we can get deeper into. And I definitely want to come back to the civil partnerships and gay rights question. But just before we do that, what would you say to somebody who said, Well, why shouldn’t the state privilege marriage as a particular form of relationship? Doesn’t it embody all kinds of important things such as raising children and showing commitment and having a monogamous relationship over time? And why is it a problem for the state to endorse that kind of thing? Most people think that marriage is good, and marriage should be supported? And it seems that you want to really say something that’s actually quite radical here. So what would your reply be on that front?
Clare Chambers
Well, that’s really interesting. So there’s two questions that are buried in your question. So one is, do we agree that these various things you mentioned are valuable and valuable in a way that the state ought to promote? That’s one question. And then the second question is, if we do agree, is marriage the right mechanism for promoting and protecting those sorts of attributes. So take children. So one of the most common reasons people might give for having the state recognise and promote marriage is precisely the idea that marriage is good for children, that there’s something beneficial to children about having married parents, and that therefore we ought to encourage people to get married. Now, there’s a lot of problems with that view, the biggest problem is actually whether it’s true the empirical question of whether it’s true that marriage benefits children. And the key question there is what you’re comparing marriage to. So what seems to be the case in the evidence that we have is that what is really important to children is not so much whether their parents are married, but whether their parents are stable, have a stable home life with their family, structure and so on. And it also matters to children, of course, whether they, their parents, their family is socially economically stable, whether it’s in poverty, whether it has adequate resources and so on. But the specific aspects of marriage or parents being married that isn’t really what helps children and even if it was the case that children did better with married parents than unmarried parents. The question then would be what the policy implication ought to be from that. And one answer might be, well, we should encourage all parents to marry. But that’s still going to leave you with the fact that there will be many children whose parents are not married. That’s not a fact that can be wished away. Even if every single parent wants to be married, there will always be people who are widowed, or divorced or who are pregnant by surprise, and who, you know, women who become pregnant, who do not have a partner they can marry. So there are always going to be children with unmarried parents. And if marriage benefits children, if marriage gives children an advantage, then what the state policy ought to be is actually to focus its attention and support the children of unmarried parents. And it ought to be focusing there rather than on encouraging or increasing the stigma against children with unmarried parents. So this is generally the case with lots of the features that you just noted, which is that the values that we might want the state to promote, are not confined to marriage, marriage is a proxy for those values. So the state perhaps ought to be promoting and supporting parenthood. And it ought to be encouraging and recognising the significance of parenthood and encouraging parents to create a life that is as sustainable for their children as possible. Whether that’s in a marriage, or as a single parent, or in an unmarried relationship, whatever it might be, that would be the sort of more apt response to that value.
The various other arguments you get about monogamy and traditional stability, we have to have arguments for each of those values. And we’d have to see whether undoing marriage was the correct, or the best way of writing each of those values. And I have doubts that marriage is doing more than being a proxy for those other more fundamental values.
Paul Sagar
What if somebody said, Okay, that’s all fine and well and good, but what about my liberty, mine and my partner’s liberty to have a ceremony where perhaps the woman wants to wear the white dress? Maybe she doesn’t care about its patriarchal overtones, maybe even endorses them? and says, Well, you know, why shouldn’t I be allowed to get married and other people can do what they want? But being against marriage, you know, that’s not fair to people who want to get married, what’s the position there?
Clare Chambers
Right. So my position is that people should absolutely be permitted to get married in a way that you would want. Weddings are not going to be banned in my vision of a marriage free state. So people would be perfectly at liberty to engage in any kind of religious or secular ceremony of marriage that they chose with any kind of, you know, dress and vows and comments and so on that they chose. The question is whether that should have any impact on their status as recognised by the state. And my argument is, it just simply shouldn’t. So if a person or a couple wants to marry in a very traditional way, in a church, or with a white dress with all those physical things? Absolutely. That is their liberty, that is their right to do so. And I wouldn’t want to prevent that. But the question is whether that should give any particular legal status. And my concern is that it shouldn’t.
Paul Sagar
Just going back to the to the question of gay rights and the expansion of marriage like arrangement to allowing gay marriage, certain kinds of civil partnerships. What about the gay couple who say, Well, this is all very well and good about in theory, everybody should have equal status. But in practice, we’ve had to fight to get to a position where we can be recognised as at least equal to say, heterosexual monogamous couples, and so that the institution of marriage. Sure, in an ideal world, maybe we’d abolish it, and just have some alternative arrangement we can discuss in future. But right now, marriage is really important. gay marriage is really important for gay rights, because we do live in an unequal world. And this is an important step toward getting to something like equality, at least for people like us.
Clare Chambers
So I’m very sympathetic to that kind of argument. I think in many contexts, that’s going to be exactly right. So I still fully support the recognition of same sex marriage. Right. My view is, if you’re going to have state recognised marriage, then of course, you should include same sex marriage within that. So I would like to distinguish, I suppose. What is the politically expedient move in any given time and place like, what the best route towards greater equality is from where we want to end up ultimately. And so one of the responses we saw in some states in the USA, when the Supreme Court changed their rules that states have to recognise same sex marriage was precisely a homophobic response that well, then we won’t recognise marriage at all, as a way of avoiding having to recognise same sex marriage. And I think that’s clearly a regressive move that I would not support. So I wouldn’t want to distinguish a kind of a political perspective on a particular reform in a particular political time and place from an idea about what the ultimate destination ought to be. So in that same vein, I think that the mood to recognise civil partnerships was an improvement on the status quo, but I wouldn’t want us to end and there so yeah, at any one time in place, we can think about the next move for equality and I think on balance, it will have proved to be important and vital that the most states recognised same sex marriage will, I think have ultimately improved the standing legal status of lesbian and gay people. The question is whether, whether it will also bring with it pressures to assimilate that will be long term and difficult to reject or whether or not to be a stepping stone to even greater equality.
Paul Sagar
Right. So, I suppose the question then becomes, if we agree that we want to stop provisioning a certain kind of relationship, for example, heteronormative or, or between a man and a woman. And we said, we don’t even want to just expand that model, say to include gay people, but we want to take account of people who are into long term friendship relationships, or care relationships, which may not be romantic or sexual, but have important life dynamics where people rely on each other and may in turn be entitled to legal claims in each other, aren’t we going to need some kind of legal regime though, right, because we can’t presumably just abolish marriage, and then just have a big free for all, because, in particular, that will put many women back into a status of vulnerability. So if the idea here is that we’re going to set up a system of contracts, where people in certain kinds of relationships go to the state and say, Okay, well, we are in this kind of relationship, and we want to specify these rights and duties that we hold against each other. And if they go wrong, then we want to be able to claim some kind of legal redress. But we do that on a piecemeal basis, so that all kinds of different people can sell their own kinds of contracts, rather than just through the marriage being the default. And either that or nothing for everybody else. Is that the vision here?
Clare Chambers
Well, I certainly would endorse the way you started with that question, which is that I am not in any sense arguing for the deregulation of relationships, right. So the argument that marriage shouldn’t be recognised by the state is not an argument for laissez faire, let everybody do what they please with no legal consequences. Is that a premise of my argument that well designed regulation serves to protect people from vulnerability and is necessary and that being outside of the purview of well designed, just regulation makes people vulnerable? And isn’t it injustice?
So that’s, that’s the kind of the premise here. And, of course, the key there is that the regulation should be well designed and should be just but that’s the sort of assumption we’re working with. So then what would just regulation of personal relationships look like? Well, there’s various reasons why we need that regulation, I can sort of identify three broad kinds of reasons. So one is that relationships, personal relationships can make people vulnerable. Right? People are vulnerable in relationships, because they become interdependent financially, emotionally, they share property, they share a home, they intertwine their lives in a way that makes them liable to vulnerability. So that’s something that the state needs to get involved with. There are matters that need to be specified in law, the law needs to have an answer to questions, like who owns this property, who is responsible for these children. And that’s particularly relevant if relationships break down if there’s a disagreement solution of a relationship. So the law needs to know some facts about questions like that.
But then there are also ways in which individuals or couples or people in relationships might want to take on commitments to each other. So they might want to make promises to each other to be together for a certain amount of time, or forever, to share property, and so on. So there’s those three areas that need regulation, right, the fact that people can be vulnerable, the fact that there are some areas that need to be specified in law and the fact that people might want to take on commitments to each other. Now, you suggested that contract could be the answer. And it might be the answer sometimes, but it’s not the answer that I argue for is the right way of replacing the regulation of relationships through marriage. And there are various problems with contracts. So the most obvious problem is that contracts do not help you if people haven’t made a contract. Right? So you still need regulation to cover those questions, questions of vulnerability, questions of, you know, who owns what property usually with these children, you still need regulation to cover those questions, even if the people involved haven’t previously made a contract. And if you’ve got regulation that covers those situations, even where there is no contract, what do you need to contract for? What’s the contract doing when a contract in that situation is operating only as a way of allowing people to escape the obligations they would otherwise have in law? So then we’ve got a two tier regime, right? We’ve got the default regulations that the state needs to design and put in place and have, be just and well designed to protect people’s vulnerability, to specify questions of ambiguity and law. You’ve got those regulations and then got a separate set of obligations that people have contracted to. But of course, the point about contracts is that when they are used as a legal mechanism, they only make any impact in that respect if they’re enforced by the state. So writing up a legal contract with your partner …
So you have a contract regime, you then have a two tier system, where you have a set of default regulations that the state has put in place to protect people from vulnerability and to secure certainty in matters the law needs to know about. And we’re assuming that those regulations are well designed, they’re just regulations. That’s the assumption of thinking through this, this proposal. And then you’ve got a second set of obligations that people take on through their contracts, which conflict with deviations from those default state regulations. And then a contract really is a demand that the states enforce that agreement. That’s what makes a contract different from simply having a discussion with your partner and agreeing some ground rules between themselves. Once you change, change it into a contract, you then get the state involved, and you ask the state to enforce that agreement. And if we actually start to think through what it would mean for the state to enforce relationship contracts, we can’t with a number of really unpalatable potential consequences. So what if people draw up contracts for the relationship which are unjust, which deviate from the default regulations in ways that are unjust or unfair to one of the path partners doesn’t seem that we ought to have the state be enforcing that using as an instrument to enforce that injustice, because that seems to undermine the whole point of the regulations, which in the first place is to protect people from vulnerability and to create a fair and equal situation. But people might also want to draw up contracts to cover areas of their relationship that are not covered in law. So if you read the literature on relationship contracts, you see people proposing things like, well, if we could draw up a relationship contract that says that maybe in the first five years of a relationship, one partner’s career gets priority, and in the second five years, and other partner’s career gets priority. So in the first five years, you know, if we need to move house for that partner’s job prospects will do so in the second five years, we’ll do it for the other partner, and so on. And these kinds of contracts can look really kind of egalitarian, on the face of it, they can be drawn up in a way that seems to be a really fair, sensible agreement. But once you think about what it would mean for the state to enforce a contract like that, you actually get a dystopian nightmare. So if you have a situation where, you know, year seven, it’s my turn to have my career prioritise. I get a job offer on the other side of the world, and I demand that my partner and I move there, and my partner doesn’t want to move to the other side of the world. Well, the thought that the state ought to get involved and force my partner to move the other side of the world, so as to uphold the relationship contract with Europe is not only at the face of dystopian nightmare of, you know, overstate overreach, there’s no way in which a relationship could survive that kind of state coercion. So the idea of getting the state involved in these kinds of contracts just looks much more difficult than it might seem, at first more difficult and more undesirable.
So my argument is that contracts can be used, in some situations, they can be useful way of allowing people to deviate from default regulations, where that suits them, but they have to be constrained by questions of justice and liberty and equality, they can’t be a free for all, and they can’t be the only thing that affects the regulation of relationships.
Paul Sagar
So the ultimate goal, as you’ve put forward is clearly intended to be a very egalitarian one. It’s about treating all kinds of relationships equally in all people equally. But might there not be a reply that says, But isn’t this in practice going to be quite exclusionary of some people in particular, which is the religious and people for whom marriage is an especially important part of a lived life? Because it has a particular sanctimony or a particular status within their worldview? Of course, not everybody shares this worldview. But won’t religious people in particular, feel alienated by this view? And isn’t this argument perhaps anti religious necessarily, in some ways, and perhaps it’s less egalitarian? Perhaps this is just a price you’re willing to pay? But is there not something to be said here about in practice, the exclusion of certain kinds of work view from the marriage free state.
Clare Chambers
So I think there are many ways actually which the marriage free state should be welcomed by religious believers. Because what we have in the current context is we have the state making legally sanctified decrees about what marriage is, and what has to happen for a marriage to exist at all. And those state decrees can conflict, sometimes quite considerably, with the views of people of particular religious faith. And again, the move to same sex marriage is an obvious example here. When the state moves to legalise same sex marriage, there were many religious believers who were profoundly distraught or distraught at that prospect. For example, the catholic bishops of England and Wales wrote a very heartfelt critique. And one of the aspects of their critique was that marriage as an institution has a specific meaning, a sanctified meaning given by God, and proposals to recognise same sex marriage violated.
Now, if the state no longer recognises marriage, then it’s no longer getting involved in those kinds of religious questions. It’s no longer saying what marriage means, and it leaves religious understandings of the institution intact in that sense. So there’s a distinction then between the legal recognition status that people have from the state and the meaning of an institution like marriage in a religious context.
And that is going to take us back to the question we discussed earlier about the way that that recognition of marriage comes up against problems of liberty, because it’s intervening in those matters of great importance and controversy in a way that undermines some people’s deeply felt convictions. But there is still an aspect of my argument that does then come up against religious faith in the way that you suggest, which is that the question then, that we’re left with, is what if anything the state should do about those religious marriages that still exist in the marriage, free state and religious marriages still exist? Because you remember a while ago, I said, you know, in my view, you should absolutely still be free to have any kind of wedding ceremony that you like to participate in, any kind of what I call private marriage, and that means that religious marriage will still exist in a marriage free state, it just won’t have legal status. And so then the question is, well, should there be any limits on what religious marriages can be like? Should the state seek to regulate them in any way? I argue in the book that they should, the state should still have a certain amount of purview over religious marriages, not to determine, as it were, the meaning of the institution in some sanctified sense. But the state does still have a legitimate interest and a need to ensure that any marriages that people enter into, in a religious or secular context, do not fundamentally undermine their equal status, and their basic rights. And so that can mean that religious practices are recognising marriages only on discriminatory basis, for example, only recognising different sex marriage, not same sex marriage, or applying rules of marriage and divorce within the religious context that are profoundly unequal for women and men, they still can come up against the state’s legitimate interest in securing equality for all.
Paul Sagar
So when reading, this is an argument about what philosophers call ideal theory that if we had, say, a magic wand, and we could wave it and create a more just society, the vision you have is the state would not recognise marriage, still be able to have ceremony still be able to have all kinds of commitments, but in terms of people’s legal entitlements and their claims against each other, these would not be differentiated based on whether or not they were in a marriage. But what about here and now? And what are the policy implications for getting to the marriage free state because clearly we’re a long way away from that condition at the moment? So what is it that you would propose or like to see as steps that we can take towards your vision of justice, so to speak, knowing that we’re still quite a long way from it as we stand?
Clare Chambers
So I think that question really does depend fundamentally on the jurisdiction we’re talking about. So let’s think first about our own jurisdiction. So in the United Kingdom, family law is divided. So England, and Wales has its own family law, Scotland has its own family law, some things are different in Northern Ireland. So we get into kind of complexities here about precisely which jurisdictions are relevant, but let’s think about England and Wales to begin with. So I mentioned earlier that the recognition of different sex civil partnerships, which came into play last year as a result of a concerted campaign from the equal civil partnerships, and campaign and a successful Supreme Court case taken by a couple Rebecca Steinfeld and Charles Kayden, who argued that the prohibition on different sex civil partnerships violated equal rights and they were ultimately that the claim was upheld. So that’s a real improvement. And the real reason it’s an improvement is because it then provides a mechanism for enabling couples to get the legal protection that currently is only available through marriage or civil partnership without having to participate in that symbolic institution that they may find profoundly unappealing or objectionable.
But what that regulation leaves untouched, is the problem of a whole host of other vulnerabilities. And one of the most pressing, I think, in the current situation is the vulnerability of cohabiting couples. So, cohabiting couples who are in what looks like a marriage but who are not married and who do not have a civil partnership, are currently treated in law, as if they are completely separate individuals. And this is something that most people do not understand. So we have what’s called a myth of common law marriage, where most people in England or Wales believe that if they live together in a monogamous, committed partnership, that the law will treat them as if they were married. And that’s not the case. And this can face all sorts of really serious problems, particularly problems related to separation. So if a committed long term civil partnership breaks up, the people who are in that partnership will be given no entitlements to a share of each other’s property or income. It’ll simply be a question of, you know, who whose name is on the title deeds of a house who earns a salary. And that’s something that can cause serious inequality and poverty particularly for women who might be engaged in unpaid domestic and caring work. So if the man supports the family with his salary, the woman supports the family looking after the children in the house. And in a marriage or a civil partnership, if that sort of relationship breaks up, the woman will be entitled to financial support and the share of the shared assets of the family. In a cohabiting relationship, she’ll be entitled to nothing. And that’s a huge vulnerability, which has many effects on many people, mainly women, and many people do not know that they are vulnerable in that situation.
So there’s all sorts of things we could and should do to protect cohabiting couples, the law commission made a report on this several years ago, which you know, really recommended quite wholesale changes, which would make a big difference. And we can also see various ways in which the law as it currently stands, is, can be very harmful for people who are not married. So think about one example would be migration law, which privileges marriage over non married relationships, I mean, immigration has a whole host of problems relating to inequality, relating to wealth and class and where people come from and so on. But the question of marriage is one of those aspects of the injustice of immigration law that needs to be addressed. We can also think about problems with for example, inheritance tax and the fact that marriage and civil partnership couples get a relief inheritance tax that is not applied to other people who pass on their property. And again, that’s an area that needs reform. There’s lots of areas of policy reform that we can start with.
Paul Sagar
Well, thanks very much for joining me today.
Clare Chambers
Thanks, lovely to talk to you.
