This is essay is part of the OOPS course Law and Sexuality.
Assuming the heterosexual marriage contract is a tool used by men to exploit women and marriage an institution by which the unpaid labor of women is extorted and appropriated by their husbands, do non-heterosexual marriages reproduce the same form of exploitation? If non-heterosexual marriages are capable of disrupting this gender dynamics inherent to marriage, could the institution be transformed into one of liberation and equity? Or does the very institution of marriage, as a tool of state surveillance and regulation of sexuality, make the parity of particular unions inconsequential? Will marriage always serve as a means of sanctioning those relationships which serve the state’s interests and ostracizing those forms of kinship that do not? A dialogue between Christine Delphy (Close to Home: A Materialist Analysis of Women’s Oppression, 1984) and Judith Butler (Is Kinship Always Already Heterosexual?, 2002) might serve to address these concerns and offer possible solutions.
Delphy argues that the sexual division of labor, or differential duties of husbands and wives, and the resulting exploitation of women and economic advantage of men, are the result of the marriage contract. Even as industrialization allowed many wives to work outside the home and earn their own wage, they were still expected to do housework and perform childcare with no remuneration. Focusing on the economic aspect of marriage in her book, Delphy understands the marriage contract as a work contract “by which the head of the family — the husband — appropriates all the work done in the family by his children, his younger siblings, and especially by his wife.” Then could non-heterosexual relationships or alternate forms of kinship upset this dynamic within marriage? Even if individual unions could become more egalitarian, would they have the ability to transform the institution as a whole?
In her text, Butler argues that marriage is a tool of the state to surveille and regulate sexuality in service of its own interests. Taking her point, we could say that any involvement within the structure is only reinforcing the state’s authority in this realm. The state recognizes only those forms of kinship that may conform to the “normative, dyadic heterosexually based family forms secured through the marriage vow.” While this nuclear family structure is central to the exploitation of women by their husbands, with Butler we learn that it is also a means of regulating culture. By controlling the environment in which children are raised and socialized, the state is able to maintain the conditions that normalize heterosexuality and patriarchy. New members of society are taught to prize and recreate the subjugation of women, as well as the vilification of non-normative forms of kinship.
While both authors would argue that marriage is a self-perpetuating system, Delphy focuses on its dynamics vis-a-vis individuals (men and women), and Butler, vis-a-vis the political structures (the state and particular forms of kinship). According to Delphy, women are motivated to enter into a marriage contract by their need to sustain and provide for themselves. Their standard of living while married is considerably higher than the “relative economic deprivation” they experience while single. Men make more money than women because of the historical sexual division of labor; women’s labor in the private sphere is undervalued and underpaid. And because marriage engenders a gap between the economic possibilities of husband and wife, women are encouraged to remarry if they obtain a divorce. Women become dependent on men for their income.
In contrast to Delphy’s focus on the treatment of individuals within a marital relationship, Butler focuses on the situational advantages and disadvantages of the relationship as an entity recognized by a state. According to Butler, state recognition confers existence on particular relationships. Those who are not legitimized by the state, in this instance non-heterosexual forms of kinship, are not recognized, and therefore do not exist . This sense of nonexistence is damaging to the self-worth and livelihood of non-heterosexual individuals, and makes it difficult to sustain nontraditional bonds of kinship.
The marriage contract entails more than symbolic recognition; legitimate unions are given access to a set of legal rights or privileges that are kept from those forms of kinship that are not state-sanctioned. Married couples are able to provide health care benefits for one another; visit their spouse in the hospital and assume certain executorial rights when they are unable to make their own decisions; and make decisions regarding their will after death. They are also entitled to the right of adoption and the use of other reproductive technologies, and the ability to maintain custody of and access to any non-biological children. Because the state has sanctioned the union, there is no burden to prove a partner’s claim to these benefits; they are seen as patently obvious. Participating in the institution of marriage is often a means of survival.
Both Delphy and Butler make it clear that the institution of marriage is more than just a reflection of prior structures (patriarchy and heterosexuality). Culture is not fixed, but fundamentally imbued in power relations that are enforced by more than just a set of rules — they are instilled into our very way of living and function to keep it that way. It is not enough to simply acknowledge that women work in the domestic sphere while men work in the public. The division of labor is not a natural phenomenon, but a structure instrumentalized by men to subjugate women and devalue their work in order to exploit them. Women’s unpaid reproductive labor keeps men in positions of power and economic advantage, as well as maintains capitalism, which could not exist if their work were waged.
Similarly, heterosexuality, especially in its capacity as a standard of marriage, is not a fact of nature, but an enacted practice. The state builds and shapes marriage to meet its desires and maintain power by controlling the actions of its populace. It regulates the production of new workers by way of nuclear families, and creates and maintains the parameters by which culture is kept homogeneous or “pure.” In both cases, the very existence of these structures is said to justify their operation, leading to a cycle of naturalization and re-naturalization.
There are many systems at work in an individual’s decision to take part in state-sanctioned forms of kinship, or marriage: patriarchy, capitalism, centralized authority, heteronormativity, disciplinary powers. Can the institution of marriage ever be conceived of as liberatory in its inclusion of non-heterosexual relationships and unconventional forms of kinship, even as it rests on a foundation of men’s exploitation of women, and the exclusion of non-normative affective practices ? Perhaps, if legal and economic imperatives are divorced from the marriage contract, there will be no need to participate in the institution. If the sexual division of labor is abolished, and reproductive labor is valued and remunerated, will there be any need to enter into a heterosexual marriage contract to obtain a livable income? If marital rights become basic human rights, divorced from any legal contract, will there be any need to gain state recognition through state-sanctioned forms of kinship? While these actions will not end all oppression, they could be the first possible steps toward the acknowledgement and dismantling of the many inequalities involved in marriage.
