John Holen 12/16/2014

Marriage Trouble

“The bourgeois sees his wife a mere instrument of production.”-Karl Marx

“We often say that the single person suffers from solitudebecause he is suspect of being an unsuccessful or rejected

husband.” -Michel Foucault“Marriage runs contrary to two of the primary goals of the

lesbian and gay movement: the affirmation of gay identity andculture; and the validation of many forms of relationships”-Paula

L Ettelbrick"Marriage is a wonderful institution, but who wants to live in an

institution?" - Groucho Marx

I. Marriage as the Foundation of Society

For a large number of contemporary theorists there has been

assumed a legal or judicial notion of marriage through which a

coherent relational subject emerges and which constitutes a

stable political field through which to demand representation.

But a coherent subject and the political are terms that are not without

their contradictions. On the one hand, the coherent subject is the

means through which political rights are conveyed; on the other

hand, a coherence contains normative implications. For queer

activists, a stable, socially consistent institution has been

viewed as necessary for the emergence of a culturally accepted

sexual body. This has seemed especially important due to the

cultural repression of nonconforming sexual orientations.

As of late, the prevailing notion of stable categories of

relationship has been called into question by a number of queer

theorists. The category of the legally married and unmarried

individual is increasingly less consistent. Many have

problematized the relationship as the ultimate site of the

emancipatory struggle for rights and, eventually, equality.

Additionally, many have questioned the limits and coherence of

the category of juridical marriage. Legal categories of

acceptability produce the requirements that a sexual body must

posses to attain representational status.

This notion of legal categories of relations is derived from

Foucault’s conception of juridical power, which posits that

coherent identities come into being from within systems of

power.1 This emergence is from the regulations and prohibitions

placed upon bodies and the choices they produce. In other words,

legally salient identities gain their status with society only

via options and limits that exist upon them within the legal

framework. If the notion of a coherent or acceptable

relationship emerges from this system, then that relationship

will always be premised on what has been excluded, that is, what

is legally possible is premised on there also being a legally

unacceptable configuration. Such a system is suspect when it

produces relationships that are only coherent when they are

conjugal and excludes relationships that fail to meet its

1 See The History of Sexuality Vol 1 for further discussion of both juridicalnotions of power as well as Foucault’s early conceptions of marriage.

prescribed standard. Thus, any appeal to a stable notion of

“legal marriage” is self-defeating to a queer emancipatory

struggle as the category of codified marriage implicitly excludes

many that the movement seeks to empower.

Despite that fact that heteronormativity does not possess

the same privileged status as it once did, the concept of a

stable marriage status, an important piece of that framework, has

been more resilient. There has, of course, been many questions

raised: Is there some natural marital status towards which the

human animal is always striving? Is there some inherent virtue

within the category of marriage that lends itself to

desirability? Is there really a “queer sexuality” that escapes

traditional conjugal definitions of relationships, or are these

sexualities ultimately just practices that have yet to be

integrated into the category of marriage? The married/unmarried

legal binary produces the very means through which these

behaviors and practices can be understood. It defines boundaries

that relationships must conform to if they wish to gain legal

status and become culturally intelligible and acceptable.

My belief is that presumed universal applicability of

judicially defined marriage is impaired due to the legal

exclusion it is premised upon. That is, for marriage to exist as

a legally defined status, there always must be an identity that

exists externally to the married subject in the form of the

unmarried or the single individual. This exclusion is what

forecloses the option of legal marriage as a temporary,

“strategic” goal for queer liberation as it necessarily is

premised on a simply more refined exclusion of some sexualties.

Without this contrasting omission, however, the juridical notion

of conjugal relations begins to lose much of its meaning.

Clearly the objective is not a rejection of all social

coupling-such a task would likely be impossible. Social couplings

outside of legal structures are a strongly entrenched aspect of

many cultures. Though conjugal relations has been put into effect

as a source of regulation within society, it is not an inherent

feature of these relationships and, in many ways, it is only

where there is a constitutive “inside” and “outside” that the

system gains the capability to exclude and legislate sexual

orientations.2 As such, the point of departure is at these regimes

of sexuality as Mark Blasius has termed it.3 Thus, criticism occurs

at the emergence of a legally defined relationship status. The

objective of a critique of marriage is to disentangle the legal

framework from categories of relationships that it attempts

formalize, limit and prohibit.

To follow the emergence of the juridical category of

marriage a queer genealogy of marriage is necessary. By

problematizing the status of marriage a discourse may be created

that eliminates the grounds of marriage equality as a valid site

of struggle. How are nonconforming relational statuses precluded

by the call for marriage? Legally defined conjugal relations

should not be the site of resistance if the possibilities for

subjective formation of sexualities are, at least partially,

excluded within these relational categories. As such, the notion

of true equality before the law only become possible when the

goal of juridical marriage is no longer the aim of activism.

2 The History of Sexuality, Volume 3, The Care of the Self, by Michel Foucault trans. Robert Hurley (New York: Pantheon 1986) originally published as Le souci de soi (Paris: Gallimard 1984) p. 1553 Ibid., p. 184

II. The Coupling/Reproductive Imperative

Frequently, an unquestioned, unitary concept of privileging

juridical marriage is invoked to provide a common ground for the

struggle for queer liberation. Originally intended as the means

to increase visibility and rights within legal structures, these

critiques of “traditional” marriage have now exposed the ultimate

inadequacy of attempting to define the nature of intramarital

relations as a legislative category within rights frameworks. The

sufficiency of the limits are called into question with the

multitude of relational practices that not only exist but have

gained increasing visibility within cultural practices.

Marriage is the cultural practice through which reproduction

and relationships are conflated and gain cultural

intelligibility. Historically, it has been part and parcel to the

perceptual formation of a complete feminine subject. As Simone de

Beauvoir posits:

If as wife she is not a complete individual, she becomes

such as mother: the child is her happiness and her

justification. Through the child she is supposed to find

self-realization sexualliy and socially; through

childbearing, then, the institution of marriage gets its

meaning and attains its purpose.4

Traditionally, marriage paired with reproduction has been

key to women’s acquisition of the status of a fully constituted

being. Furthermore, she accurately observes that the unwed mother

is not only seen as an “offense” to the traditional order but

also encounters repercussions for her failure to conform to

juridicially mandated conjugal relations.

The naturalness of this configuration is called into

question, however, at a few crucial junctures. First, is a

problems that de Beauvoir identifies in the fact that happiness

is not the universal, natural consequence of reproduction within

marriage. If the pairing of legal marriage and maternity were the

natural order of things then happiness would be the universal

consequence. However, the presence of beings that derive no

pleasure from pregnancy within legal marriage troubles the

coherence of this category.5 The site of conflict is closely

4 It is worth noting that Foucault, in outside interviews, would eventually posit that the expansion of the category of marriage would be sufficient to solve its harms. An interesting stance considering that it seems to lack any clear ability to resolve itself against his already stated notion of the juridical and the division of bodies.5 See Friedrich Engels, The Origin of Family, Private Property and the State (Newtown: Resistance Books, 2004) p. 84

related to a second rupture in the marriage-reproduction

conflation: that many individuals are prone to attain the legal

status of marriage without ever fulfilling, or even intending to

fulfill, the supposed reproduction imperative that comes with it.

Were the association between marriage and reproduction as natural

as the sexual regimes wish to posit, there would be no other

conclusion for the married pair beyond the creation of new

beings. However, that individuals exist, and in increasing

numbers, who, not only choose to not engage in this system, but

also seem to suffer to psychological consequences of their

avoidance inherently calls into question the purpose of the

initial combination of the two social processes. The third, and

final, point of consideration in the process of dismantling the

historical unity of reproduction and legally defined relationship

status is especially important to a queer critique of marriage:

that sexual practices are

Thus, it follows that these institutions do not necessarily

require one another. The logical conclusion of the failure of

this artificial conflation is that there is no pre-legal unity

between reproductive bodies and the married subjects.

This division between reproduction and the relational gives

rise to a new set of issues. Can we speak of a legally defined

romantic relationship without using a normative discourse in

relation to sexuality, desire and reproduction? Does legal

codification of marriage have its roots in the legal,

reproductive, interpersonal, economic, or religious? Does

institutionally supported marriage have a history? Do various

types of marriages and sexual relationships each have their own

histories in context of the law? Is the coupling of the marital

to the law a factor that emerges from societal constructions that

serve the aims of the legal structures that define them? If the

intelligibility of marriage laws are called into question, then

the usefulness of the institution as legal category capable of

fostering equality must also be called into question; indeed the

category seems to lack any non normative, nonreproductive

meaning. How, then, does marriage as a legal category come into

existence and how might it service the institutions of power?

III. Marriage: The Incomplete Shell of Contemporary Debate

Is there a singular unifying model of marital relationships that

can be said to represent all sexual relationships within the law?

What is meant by the legal conjugal relationship? What forces in

society have given rise to the codification of intramarital

relations? It would be wrong to think of these factors that both

create and guide legal codification of marriage as being entirely

separate from the totalizing sociopolitical institutions that

originally placed it within the law. Indeed, they are often

nearly inseparable.

Michel Foucault suggests, in The History of Sexuality Volume 3 that

“Marriage is one of those duties by which private existence

acquires value for all.”6 In this he means that the normalization

of the practices associated with marriage functions as a form of

“control” that reifies and supports broader societal aims. Is

institutional marriage as insidious as Foucault alludes to? Is

“control” always implicitly negative? While there is an

6 This is not even to mention the intersectional feminist approaches that would understandably seek the emphasize the importance that various orientations of social relationships plays within specific social contexts. Assuch, a queer movement seeking greater inclusivity would face a significant problematization of its objectives were it to call for the abolition of all social couplings (or triples, quadruples etc.) as it would require the exclusion of some cultural practices and the universalization of the western queer experience.

inevitable debate over the definition and nature of control,

Foucault is clear that it is both present in marriage and

supportive of dominant discourses. He traces the history of the

concept through the prohibitions placed on certain sexual acts.

These prohibited acts constitute that which is “outside” of

marriage. He writes:

Doubtless this principle, which tends to exclude, even for

men, sexual intercourse outside marriage, and to authorize

it only for certain definite purposes, will be one of the

anchor points for a subsequent “juridification” of marital

relations and sexual practices. Like that of women, the

sexual activity of married men will, in theory at least,

risk coming within the provisions of the law.7

Foucault sees this juridification as specifically occurring

in regards to a dual system of relations and practices. Since the

coherence of these two ideas emerges only through cultural

practices, their conflation is an act of juridification of

7 I use the phrase regimes of sexuality to refer to the point a which law, tradition and social institutions converge to produce a culturally intelligible relationship and self regulating institution. Moreover, these regimes are specifically designed to reproduce a particular sexed body which refers to both their gendered orientation and capacity for pleasure. See “Regimes of Sexuality” by Mark Blasius for further discussion of these systemsand the implications they have for political scientists.

relationships. Thus, marriage contains an inherently normative

function in Foucault’s mind that stems from the immaterial

cultural norms which give rise to material conditions.8

Friedrich Engels provides an alternative history and

critique of marriage. In The Origin of Family, Private Property and the State

he traces the notion of marriage through a series of three

historical epochs. Each of these reflecting a different set of

social practices that were inextricably tied to historical eras

of human development and modes of production. Engels starts with

the “savagery” of group marriage and progresses through the

“barbarian” pairing marriages before concluding with

“civilization” which he sees as tied to monogamy. For Engels, the

modern incarnation of marriage is defined by property

considerations. He explains:

And when, with the predominance of private property over

common property, and with the interest in inheritance,

father right and monogamy gain the ascendancy, marriage

becomes more than ever dependent on economic considerations.

8 The Second Sex, by Simone de Beauvoir trans by H.M. Parshley (New York: Vintage1974) p. 540. Originally published as two volumes: Le Deuxieme Sexe: I. Les Fais et Les Mythes, II. L’Experience Vecue (France: Librairie Gallimard 1949)

The form of marriage by purchase disappears, the transaction

itself is to an ever increasing degree carried out in such a

way that not only the woman but the man also is appraised,

not by his personal qualities but by his possessions9

To engage in legal marriage is, for Engels, to engage in

capitalism and the rules that govern marriage are means of

assuring the continuation of this system. They normalize, by

legal practice, the process of property ownership and

transference and the placing of valuations upon the body. In this

way, marriage is seen as having been politically codified in a

certain way so as to guarantee the reproduction of a certain

system and set of acts. As such, Engels’ account offers an

history that traces the material aspects of production’s role in

the immaterial creation of culture.

A final recount of the historical imperative to marry comes

from Simone de Beauvoir. She traces the institution through a

feminist lense that occupies a sort of middle ground between the

accounts of Foucault and Engels. For de Beauvoir, there is not

9 This is not even to mention those bodies that derive pleasure from reproduction outside the bounds of legal marital status, as is increasingly common in the contemporary era. Which further proves that, for many, the unnaturalness of this coupling becomes apparent through experience.

only an obvious material aspect to marriage contained within

conjugal relations as already discussed, but also is a material

consideration due to the monetary advantages that marriage

affords as, due to wage disparities and discrimination “marriage

is a more advantageous career than many others.”10 She progresses

from here to argue that the natural consequence of a lack of

options for the domestic spouse is that they are forced to leech

off of their working counterparts due to their lack of status

within the world. However, there is also an immaterial aspect of

her analysis when she discusses the issue of transcendence vs

immanence. She explains:

The male is called upon for action, his vocation is to

produce, fight, create, progress, to transcend himself

toward the totality of the universe and infinity of the

future; but traditional marriage does not invite woman to

transcend herself with him; it confines her in immanence,

shuts her up within the circle of herself. She can thus

10 For example, the question of reproduction is no longer confined by biologydue to increasingly relaxed adoption rules as well as artificial insemination.Monetary considerations still exist along gendered lines for heterosexual couples due to wage disparity but also along non gendered lines for queer couples due to tax breaks, insurance coverage and inheritance laws.

propose to do nothing more than construct a life of stable

equilibrium in which the present continuance of the past

avoids the menaces of tomorrow-that is, construct precisely

a life of happiness.11

It is here that de Beauvoir identifies a second pole in the

marriage equation: the immaterial effect of domesticity. By

relegating one half of a marriage partnership to the realm of the

home while allowing the other to move between the boundary of the

two there is an imbalance created between the cognitive

experiences of the two individuals. This reaffirms a society of

inequality and helps cement social roles for both parties, though

at a particular detriment to the domestic partner. Thus, for de

Beauvoir, the key aspect of marriage is the inevitable reliance

of one person upon another the produces, which, in a similar

fashion to Foucault and Engels, is both a result and a key

component of the dominant social order.

Regardless of the history of marriage as an institution we

must note the shared theses between Foucault, Engels and de

Beauvoir: that, on the one hand, the emergence of marriage as a

11 Ibid., p. 500.

legal institution was a decidedly social process. It was from

hegemonic needs and discourses, whether they be material or

immaterial or both, that the institution became normalized and

institutionalized. There was no pre-natural marriage institution

that predicated the modern institution. The various forms that

marriage has taken have always reflected and been produced by

dominant power structures and the demands of society. And, on the

other hand, we see that the codification of marriage was, at

least in the theoretical realm of the law, sex blind. The roles

of both partners was no longer solely on a sexed transaction of a

female being passed as property from a father to a husband or of

the creation of male lineages; instead they were defined by the

way their roles functioned within a broader juridical framework.

That is, marriage no longer exists solely to reify patriarchy but

rather to more generally reify power. For Engels it is the equal

conveyance of capital value on the person and for Foucault it is

a system the reifies the “care of the self” or self-regulation.

In de Beauvoir's work, however, the sex neutral status is less

overt. While she identifies her criticism along explicitly

gendered lines, the evolution of social norms and legal processes

has made it so her analysis can apply equally to all conjugal

relations.12 Any relation predicated on relational monogamy and

reproduction will fit into her model of granting some legal

privilege while simultaneously foreclosing cognitive options due

to the fact that at least one partner, though often both in the

instance of queer marriage, have their statuses irrevocably

altered when they enter into the legally binding institution.

Additionally, for queer couples that adhere to a binary set of

gender roles, her analysis of the two positions within marriage

(the domestic and the working) carries notable weight as they are

likely to recreate the bifurcation into the transcendent partner

and the imminent partner. In both situations the legal status

that is conferred with the marriage title, on the one hand,

becomes a source of inclusion into an institution premised on the

repetition of certain society reaffirming practices. And, on the

other hand, the title implies participation in a system that

necessitates there being an “outside” or “other” that has a lack

of special rights and faces social judgement for their lack of

12 The Second Sex, by Simone de Beauvoir trans by H.M. Parshley (New York: Vintage 1974) p. 481

participation, or lack in inclusion, in the codified sexual

regimes.

The increasingly sex blind nature of marriage is an

important point of convergence on their part when considering so-

called “marriage equality” as an emancipatory goal. As the

subjegating features of marriage no longer possess inherent ties

to a certain configurations of gender or sex, its reification of

hegemonic structures now has universal possibilities in

application. In other words, marriage no longer exist solely as a

patriarchal tool for oppression but rather as a piece of a larger

system that subjugates individuals regardless of sex, gender, or

sexuality. Instead it imposes relational roles and normative

categories onto its subjects. Thus, there is no codified concept

of marriage outside of the law and its aims and these aims are

constantly reified by marriage’s continued legal practice.

IV. Adherence, Power & the Means of Disruption

One key feature of the queer emancipatory project is desire for

concrete grounds for resistance. This has traditionally been

located in the juridical construct of marriage. It is argued that

without an identifiable legislative goal cultural acceptance

cannot be achieved. However, inasmuch as codified marital

institutions are used to stabilize cultural modes of dominance

and is predicated on the existence of non conforming identities

that are necessarily excluded from the law, it is only when the

binary system is disrupted that a queer movement can begin to

gain ground.

To successfully challenge this system it is important to

trouble the stability of the category. Clare Chambers writes of

the normative nature of marriage from the mere engagement in the

process, arguing that “the more women do in fact enter into

marriage, the more normalising marriage becomes.”13 The act of

engaging in marriage then becomes of symbolic importance in the

normalization of its role within society. Absent this engagement,

the system loses much of its significance as it continues the

tradition of marriage:

13 See “Feminism, Liberalism and Marriage” p. 4 by Clare Chambers which presents an argument for a redefining of marriage from not only a queer perspective but also from the perspective of traditional liberal politics. Herworks is particularly beneficial in providing a set of legislative strategies for changing the role of relationships with the law. These serve as an insightful compliment to the personal strategies outlined in this piece.

Couples may marry so as to obtain various practical, legal

or financial benefits, but a key aspect of most marriages is

the statement the couple makes about their relationship. For

the marrying couple and for society in general, the symbolic

significance of marriage is at least as important as its

practical aspects. This being the case, it is impossible to

escape the history of the institution. Its status as a

tradition ties its current meaning to its past.14

Chambers is right in identifying that the ceremonial

exchange and long tradition makes marriage a largely symbolic

institution. As already demonstrated the genealogy of marriage as

a part of society has a complex, and potentially contradictory,

history but ultimately serves the purpose of both symbolically

and functionally reifying normative aspects of culture that

necessitate the exclusion and oppression of certain identities.

Thus, non engagement provides a route to reject both the symbolic

aspects and legal aspects of the system.

If marriage has its roots in routinized social practices and

normalization of bodies, it is only with the breaking of the

14 Ibid.

routine that new possibilities can escape juridical exclusion. By

troubling the coherence of marriage as a juridical status via non

engagement, the tradition is broken. This text then serves as a

way to rethink these constitutive legal categories, through which

conjugal relations are normalized and proliferated. Only via the

rejection of codified marriage can we hope to escape its

exclusionary confines. This strategy is particularly effective as

is does not seek some utopian expansion of categories to the

point of incoherence but instead seeks to challenge flawed

legislative categories via the disruption of ritualized legal

marriages.

If there is some truth in de Beauvoir's notion that

marriage emerges from both a personal and legal consideration,

then it follows that symbolic resistance will be inextricably

intertwined with the political codification. As has long been the

case within both Western Feminism and Queer Theory, the personal

is political and no more so than within interpersonal, legally

defined conjugal relationships. Thus resistance is key in the

dismantling of the exclusionary marital institution.

Footnotes

2-This is not even to mention the intersectional feminist approaches that would understandably seek the emphasize the importance that various orientations of social relationships plays within specific social contexts. Assuch, a queer movement seeking greater inclusivity would face a significant problematization of its objectives were it to call for the abolition of all social couplings (or triples, quadruples etc.) as it would require the exclusion of some cultural practices and the universalization of the western queer experience.3-I use the phrase regimes of sexuality to refer to the point a which law, tradition and social institutions converge to produce a culturally intelligible relationship and self regulating institution. Moreover, these regimes are specifically designed to reproduce a particular sexed body which refers to both their gendered orientation and capacity for pleasure. See “Regimes of Sexuality” by Mark Blasius for further discussion of these systemsand the implications they have for political scientists.5-This is not even to mention those bodies that derive pleasure from reproduction outside the bounds of legal marital status, as is increasingly common in the contemporary era. Which further proves that, for many, the unnaturalness of this coupling becomes apparent through experience.7-It is worth noting that Foucault, in outside interviews, would eventually posit that the expansion of the category of marriage would be sufficient to solve its harms. An interesting stance considering that it seems to lack any clear ability to resolve itself against his already stated notion of the juridical and the division of bodies.12-For example, the question of reproduction is no longer confined by biology due to increasingly relaxed adoption rules as well as artificial insemination.Monetary considerations still exist along gendered lines for heterosexual couples due to wage disparity but also along non gendered lines for queer couples due to tax breaks, insurance coverage and inheritance laws.13-See “Feminism, Liberalism and Marriage” p. 4 by Clare Chambers which presents an argument for a redefining of marriage from not only a queer perspective but also from the perspective of traditional liberal politics. Herworks is particularly beneficial in providing a set of legislative strategies for changing the role of relationships with the law. These serve as an insightful compliment to the personal strategies outlined in this piece.