The Cake is Rotten

The Cake is Rotten: Heterosexism, Marriage-Privilege, and the Case of Queer Marriage1

This essay is © 2001-2002 by Charles Johnson, and reprinted from The Cake is Rotten at Charles W. Johnson, freelance academic and revolutionary, under the terms of the Creative Commons Attribution-ShareAlike 2.0 copyleft license.

Updates (2002-02-17 and 2004-12-13): Typographical errors corrected.

I. Should Adam and Steve / Eve and Lilith be allowed to marry?

Suppose that we have four young single people, some of whom are desperately in love with one another: Adam, Eve, Steve, and Lilith. Like many young people in love, they want to get married and have a family. Can they? In our present society, this depends a lot on just which of them we are talking about. For example, Adam, Eve, and Steve cannot all marry each other together; only couples are allowed to marry. Similarly, Eve cannot marry Adam and then also marry Steve without first ending the marriage to Adam; each partner of the married couple is allowed to be married only to the other partner of the couple. One of the most controversial features of the scenario is that Adam cannot marry Steve, and Eve cannot marry Lilith: in our present society only women are allowed to marry men, and vice versa; only heterosexual couples are presently allowed to marry. For many liberal gay rights advocates, the prohibition on homosexual marriage is one of predominant signs of our society’s homophobia, heterosexism, and institutionalized discrimination against queer people, and the solution is to extend the institution of marriage to include same-sex couples. Conservatives counter that the institution of marriage is such that extending it would do irreparable damage to marriage and the values that it expresses or produces for our society. For the past decade or two, heated mainstream discussions of queer marriage have cropped up periodically every few years, with these two understandings more or less monopolizing the discussion. On consideration of the arguments for each position, however, both positions are founded on shoddy arguments and a faulty understanding of marriage and its relation to society. A radical reconsideration of marriage will identify heterosexual marriage as an illegitimate form of heterosexist privilege, with a troubling and lingering relationship to male supremacy. Since it is the presence of heterosexual marriage and not the absence of homosexual marriage which is illegitimate, society must be radically reconstructed such that the legitimate functions of marriage are taken up by other, legitimate institutions, and the illegitimate functions are consigned to the scrap-heap of history. (I.1)

II. The benefits of marriage

Marriage is an institution that confers benefits. This is fairly uncontroversial, and should be pretty easily justified if challenged: if marriage were all that bad, it’s unlikely that the majority of people in our society could be deluded into doing it2. So let’s say that Adam and Eve get married. What does this get them? And what are Adam and Steve denied by the fact that they cannot marry? (II.1)

Marriage carries legal benefits.3 Adam and Eve have joint rights to property acquired during the marriage, meaning that each has protected access to financial and material support from the other. They have the right to take legal actions on behalf of the other where the other cannot do so for herself (as in wrongful death suits, consent to medical procedures when the partner is incapacitated, consent to post-mortem examinations, etc.). Adam and Eve’s private conversations have privileged confidentiality when one is called as a witness in a court case. Adam and Eve are recognized as a single unit with regard to immigration law (i.e., the INS does not break up families): if Eve is a citizen of the country, and Adam was born in Canada, Adam is guaranteed resident status in the U.S. by virtue of being married to Eve. Virtually all government programs which deal in benefits (Social Security, Medicare, veteran’s benefits, natural disaster relief, etc.) accord special status to the spouse of a recipient which may entitle her or him to additional benefits. Spouses are designated as a family member of one another, granting them a number of rights with regard to inheritance, notification, visitation in public institutions, guaranteed family leave for childcare and so on. Adam and Eve also enjoy special tax status which entitles them to a number of deductions, credits, and exemptions. Finally, the existence of a marriage is a major consideration in questions of child custody and visitation rights; one spouse may even gain visitation for a stepchild to which he or she has no blood relation because she or he once was in a marital relationship with a blood parent. (II.2)

Marriage also confers social benefits. Eve and Adam’s relationship is recognized and celebrated as legitimate; in particular, their sexual expression with one another is considered, say, conjugal relations, rather than fornication and/or adultery. Any children they have during the marriage are considered legitimate rather than illegitimate or bastards. These social benefits go beyond issues of nice versus nasty words or smiles versus sneers: Eve and Adam get special access to each other’s health insurance plans, get visitation rights in private institutions, and many other material benefits from private businesses, foundations, informal relationships, and so on. (II.3)

Since marriage carries with it a number of benefits, it is a crucially important question who can receive these benefits. Those in favor of queer marriage argue that there is no good reason why Adam and Steve or Lilith and Eve should be denied these goods; those opposed say that to extend these benefits of marriage to their queer relationships would somehow violate or pervert the basic nature of marriage. (II.4)

III. The Libertarian Case

The opening salvo in the debate is often an argument by liberals which is best characterized as the Libertarian Case. If two of our four young people want to get married, it is an agreement that they make amongst themselves. It seems that if Adam and Steve want to make this private arrangement, there is no particular reason why the government should make any more fuss about it than when Adam and Eve decide to make the arrangement. Just as the government has no clear right to busybody about who I keep as friends, or where I buy my hamburgers, it also has no clear right to busybody about who I do or do not marry. In any case, as Andrew Coyne (qtd. in Johnson [1999]) puts it, the onus is on the state. If no … societal interest can be shown, if the sanction is based only on custom or convention, then it’s not clear what business it is of the law. Further, the liberal advancing a Libertarian Case holds, merely pointing to the genders of the partners is not good enough: making a distinction only on that basis amounts to nothing more than crude sex discrimination and homophobia. Thus, the liberal puts the burden onto the shoulders of her opponent; as I wrote (1999), the better question is why we should reserve the privileges of marriage to heterosexuals. And, if we cannot find a good objection to the extension of these rights, then perhaps the issue should be considered closed. (III.1)

IV. Is marriage a private institution?

But the liberal’s description of marriage as a purely private arrangement is inadequate. As things stand, marriage is certainly not merely a private arrangement between the two people getting married. In particular, one must be granted a marriage license by the government, and must find a third party with the power to pronounce the couple married (such as a priest or a justice of the peace). In addition, many states have a provision for common law marriage, in which a marriage can be declared by government fiat, without both of the newly-declared spouses having mutually agreed to a marital arrangement. Further, there are a number of benefits conferred in marriage which cannot be conferred by any purely private arrangement. For example, there is no such thing as a private contract to give each other tax benefits (otherwise everyone would quickly sign on to contracts giving each other a 100% tax refund!). (IV.1)

As it stands, then, marriage cannot be described as a purely private institution. However, most people would recognize that it is not purely a legal category either. If, for example, the government passed a law tomorrow saying that all the legal benefits of marriage would be conferred on every group of two people whose last names started with the same letter, then we would most likely not be inclined to say that these people are really married, even though they have all the legal rights of married couples. It may be best to say, then, that marriage occupies a borderline between the purely public and the purely private domains: it is a quasi-public or private-public borderline institution. (IV.2)

Thus, the pure laissez-faire approach that the liberal initially advanced has to be rethought. Since marriage is not a purely private institution, we cannot simply rest on that claim in order to justify queer marriage. More will have to be said before the case is closed. (IV.3)

V. The Neo-Libertarian Case

One possible, response to this charge is to stand firm on the libertarian princple, and argue that although marriage is private-public as it presently stands, it ought to be a purely private arrangement. The fact that the government happens to be a busybody about, for example, homosexual sex, does not mean that homosexual couples should be prohibited from sexual relations; it ought to be a purely private matter as long as they are consenting adults. Thus, the public features (such as government tax and benefit status, the imposition of common-law marriage status on couples who have not both agreed to it, the requirement of a special license, and so on) should be eliminated. The private features (such as visitation rights, inheritance status, join property, and so on) can be designated under a private marriage contract agreed to through the wedding ceremony. (V.1)

However, the neo-libertarian stance suffers from a fatal confusion between institutions which are accidentally private-public, and institutions which are essentially private-public. For example: many states require a fishing license before you can legally go out and fish on public waters. However, the State’s involvement in fishing is not essential to the act of fishing itself: if you went out and fished without a license, you would be fishing illegally, but you would still be fishing. But this cannot occur with marriage: if Lilith and Eve agree to get married to one another, but the State refuses to grant them marital status, then we would not say that they have married illegally but rather that they have not been allowed to marry at all. If marriage could be a purely private institution, then wherever there is mutual agreement to marry there must be a marriage. Thus there would be no argument about queer marriage at all, but rather an argument over whether the government should grant benefits to those married queer couples or not. (V.2)

To remove the public aspect from a private-public marital relationship would be to remove the marriage from the relationship. Any argument for queer marriage must accomplish its goal without making marriage a private contract between two parties. (V.3)

VI. The Liberal-Reformist Case

The liberal may respond with a modified view which grants the public-private status of marriage, but argues that the current restrictions on access to marriage benefits are illegitimate and that the institution ought to be reformed by extending it to queer couples. Indeed, many liberals often put this view out more or less at the same time as they advance a civil libertarian case, without recognizing that they are two different arguments and need to be separated from one another. (VI.1)

Unlike the Neo-Libertarian Case, the Reformist-Liberal Case accepts marriage as a private-public institution, but argues that there are perfectly good reasons to preserve and extend marriage benefits to queer couples. (VI.2)

Many liberal-reformists advance the argument that For gays who may have been viciously rejected by family and friends because of their sexual orientation, having legally and socially legitimate kin would have psychological benefits which cannot be ignored (Johnson [1999])4. But this is not so much an argument for queer marriage as it is an argument against cruel homophobia. Queer people should be able to expect their families and friends not to viciously reject them in the first place, and should have the same support networks available to them if they are rejected that single straight people have, without having to run out and get married in order to cope with the trauma. (VI.3)

In a similar vein, liberal-reformists advance the claim that only by legalizing queer marriage can our society recognize queer relationships as legitimate, healthy relationships. But again, this is an argument against heterosexism, not for queer marriage. Certainly we recognize many straight relationships where there is no marriage, and perhaps even a conscious intent not to marry, as legitimate and healthy. What really needs to be done, then, is re-evaluate our attitudes towards queer relationships in a similar way. (VI.4)

Finally, in an equal-access vein, one may again ask what role the government has in institutionalizing homophobia in the access to marriage; it certainly seems like it needs to come up with some good reason why Eve and Adam can marry, but not Eve and Lilith. In the absence of some compelling argument about the difference between their relationship it seems that there’s a pretty good reason to go ahead and let both have access to marriage. While this equal-access stance has a compelling internal logic, there is an important question it simply leaves unanswered: what is the nature and purpose of marriage in the first place? Why does the government provide benefits to any married couples? If this is left unanswered, the Reformist-Liberal has no real answer to the question of why this should also be extended to homosexual couples. (VI.5)

VII. The Conservative View

The conservative view steps in at this point, and attempts to make the case that marriage privileges are granted because the government has a compelling interest in supporting some particular sort of social order, which queer couples cannot fulfill, and thus it should only extend these benefits to homosexual couples. Just as the government only recognizes certain kinds of corporations for special non-profit tax status, it only recognizes certain kinds of couples for marriage because only they fulfill the societal purpose of marriage. (VII.1)

The question, then, is what goal homosexual couples fail to achieve. It clearly cannot be some of the traditional mainstays of marriage such as love, sex, or childrearing—dismissing the tendentious psychiatric speculations that a few conservatives advance, it seems pretty clear that Eve and Lilith can be madly in love with each other, and nobody would disagree that they are physically capable of having sex and providing for the needs of children in their care. Conservatives generally advance several from a battery of arguments as to why. (VII.2)

A common first argument is some kind of variation on the argument from religion. Hard-line traditionalists have argued that the religious sacrament of marriage is a bedrock of moral society, and that the particular religion or set of religions they have in mind limits the sacrament of marriage to a couple of one man and one woman. But as Elliston (1984) argues, why should all of society be bound by the special teachings of one religious sect? … No sect has the moral right to use the law to impose its beliefs on others (181). A secular government simply has no role in taking a stance on this sort of question. (VII.3)

Other conservatives, wishing to stay away from Church-State issues, offer an argument from procreation. As James Q. Wilson’s (qtd. in Johnson [1999]) puts it, what is distinctive about marriage is that it is an institution created to sustain childrearing, and that since Neither a gay nor a lesbian couple can of its own resources produce a child, it would be a perversion of marriage to extend it to same-sex partners. But this is clearly an argument that shows both too little and too much. Although Adam and Steve cannot (with present technology) have a child together, they certainly can participate in child-rearing: either Adam, or Steve, or both, may have children through previous heterosexual relationships, adoption, the agreement of a surrogate mother, or modern reproductive technology. On the other hand, if we take Wilson’s argument at face value and follow it to its logical end, it would also rule out marriages between heterosexual couples who are child-free by choice, or who can no longer have or raise children due to advanced age. Indeed, it would seem that Wilson’s position would mandate that post-menopausal couples be forced to either adopt some more kids, or else be divorced, since otherwise they will have no more children. (VII.4)

Finally, the conservative may resort to an argument from tradition and argue that marriage has simply always been defined in terms of heterosexual couples, and if we begin to monkey around with that time-tested conception of marriage, it may have dire consequences. Indeed, they argue, the current crisis of marriage and spiraling divorce rates are a direct result of increasing acceptance of loosened standards towards sexual relationships other than legally-ordained, heterosexual monogamy, and that this has dire consequences ranging from venereal disease and pregnancy out-of-wedlock to increased murder rates and poverty in the inner city. The full consideration of the argument from tradition will require an understanding of the concept of marriage, the history of marriage, and the relationship between the two. (VII.5)

VIII. The concept of marriage

All of the cases thus far have foundered on inadequate understandings of the concept that the word marriage designates. Just what marriage is is hardly ever spelled out, because the institution is common enough that no conceptual analysis is taken to be necessary. (VIII.1)

Lyla O’Driscoll (1977) correctly identifies two essential features of marriage when she argues that The difference between a society with marriage and one without it is that in the former the rules constituting an existing social institution distinguish between illegitimate and legitimate progeny and characterize actual or possible instances of sexual congress as conjugal relations (132). However important these characteristics may be, however, they do not provide an adequate conceptual understanding of marriage, because they are circular. Distinguishing between illegitimate and legitimate progeny, and conjugal relations as versus adultery or fornication, just is distinguishing between children and sex which occur within a marital relationship and those which do not. But O’Driscoll has not provided an explanation for what constitutes entering into that relationship. It is likely that O’Driscoll fails to do this because she holds that whatever else it is, marriage is a social institution (132), focusing on the public aspect of it. True, marriage has aspects of a public social institution. And it is also true that amongst its most important social aspects is that it distinguishes illegitimate and legitimate progeny, conjugal and non-conjugal sex. But in addition to what marriage regulates, we must also see how marital relations come to be in the first place. (VIII.2)

We have already seen that marriage is essentially a private-public borderline institution. Therefore, both community recognition and individual participation are essential elements. An important aspect of this is that community recognition must involve social, economic and legal privilege from the community and its governing body. Further, the community recognition is based on the special status of the household or nuclear family. Immigration law grants residency to spouses because the unit of immigration is the nuclear family. Married couples can file joint tax returns because the unit of tax assessment is the nuclear family. Insurance benefits are granted to spouses because insurance plans insure families rather than individuals. Inheritance defaults to a spouse because inheritance runs through family lines, with the first default being the nuclear family (spouse and children). Indeed, it would not be far off to say that the fundamental unit of civil society in societies with marriage is not the individual at all. The fundamental unit of citizenship is the household or the nuclear family. Children are, in the society, covered by the household of their parents; unmarried adults form their own single-person households (or more, if they have children). (VIII.3)

We can then get a grip on the concept of marriage accordingly (though this is not intended as a final definition): marriage is a process by which two people relocate their citizenship status within a society of households5, by being recognized as united in a single household, for an indefinite period of time, sanctifying a sexual relationship and childrearing by the couple, and through which that household receives special legal, societal, and/or economic privileges over households consisting of single individuals. (VIII.4)

I have intentionally downplayed certain questions here. In particular, there is no word on whether polygamous arrangements (polygyny, polyandry, group marriages) can count as marriage (marriage is specified as always between couples, but nothing is said about whether each member of the couple must only be married to the other member and no-one else). Marriage has also been intentionally defined in a gender-neutral way. Although some conservatives would object that marriage also inherently includes the concept of a specifically heterosexual union, this merely defines the issue of same-sex marriages out of existence by way of a semantic quibble, without clarifying any of the real ethical or political questions: that would make the queer marriage debate into an argument not of philosophy, but lexicography. Answering whether what we are arguing about should be called marriage or some euphemism such as domestic partnership or civil union does not tell us whether or not whatever we are talking about is justified. As Elliston (1984) argues, To keep the issue where it belongs—on the moral turf—a neutral definition of monogamy should be employed that does not beg the question of the legitimacy of homosexual marriage by loading the semantic dice at the outset (150). (VIII.5)

If this elaboration is accepted, then whatever the identities of the partners, marriage is understood as a relationship of privilege rather than a private relationship between two individuals, and the question of whether queer couples should be allowed to marry takes a back seat to a larger concern. Specifically, why should marriage-privilege exist at all? Why should societies operate on the level of privileged and deprivileged households at all, rather than at the level of equal individuals? (VIII.6)

IX. Marriage Privilege, Historical and Contemporary

There are, of course, historical reasons for the existence of marriage privilege. In our own society’s history, these reasons are particularly ugly. Historically the only form of household which is allowed to form through marriage is a heterosexual monogamous nuclear family. Thus, marriage privilege is the social subsidization of heterosexual monogamy. It turns out that what is heterosexist and homophobic about marriage is not, first and foremost, the prohibition of gay marriage-privilege; but rather, the existence of straight marriage-privilege. (IX.1)

Moreover, one thing often lost on modern commentators is how radically the institution of marriage has been reformed in modern times, with regard to the sexual politics between husband and wife. Only a century and a half ago, marriage was little more than a private property relationship in which the husband was granted control over the wife by her previous male guardian, usually her father. As Blackstone (qtd. in Anthony [1902]) wrote, (IX.2)

By marriage, the husband and wife are one person in law; that is, the legal existence of the woman is merged in that of her husband. He is her baron or lord, bound to supply her with shelter, food, clothing, and medicine, and is entitled to her earnings and the use and custody of her person, which he may seize wherever he may find it. … This is in respect to the terms of the marriage contract and the infirmity of the [female] sex. (7-8) (IX.3)

Under the early and mid-19th century institution of marriage, married women lost access to control of private property, pursuing action through the legal system, and even control over their own bodies. Their identity as citizens was simply annexed to the husband; as the Declaration of Sentiments issued by the Seneca Falls convention put it (qtd. in Anthony [1902] 2), He has made her, if married, in the eye of the law, civilly dead. Marriage-privilege, until not very long ago at all, was instituted as a form of overt male supremacy, amounting to little more than chattel slavery of wives by husbands.6 (IX.4)

Today, the situation has radically improved. Husbands and wives enjoy more or less equal status and civil rights before the law, can maintain their own financial independence, and can change around all the historical ceremonies signifying male dominance over the household (such as the father symbolically giving the bride away to her husband, keeping her own last name, etc.). There is, on the other hand, still much that is troubling in internal operations of households, such as adult power over children, and cultural practices which continue to privilege the husband as head of household over the wife. (IX.5)

X. Should Adam and Eve be allowed to marry?

However, there are deeper concerns than with the internal operations of a household. In every case, marriage marks out a specific form of privilege for some sorts of households over others. Even if every married household were a perfect participatory democracy, the privilege of married over unmarried households (and thus, at least one of the people in the married household over the person in the unmarried household) is a questionable social institution. What right has the government or community to subsidize a particular form of sexuality? At present only heterosexual monogamy is subsidized, making the institution a major act of heterosexist privilege; and if it were expanded to include queer couples it would still privilege people in long-term sexual relationships over those who are not currently in those relationships. (X.1)

Like any societal privilege, there must be a good reason for such a privilege or else it ought to be abolished. Given the male supremacist and heterosexist nature of the tradition, the conservative appeal to tradition will not do if we are committed to a society free of such bias (some of the reasons advanced for institutionalizing that bias, such as arguments from religious morality and from childrearing, have already been considered and rejected above). Similarly, liberal-reformist arguments of equal-access will not show that queer marriage is justified (if marriage-privilege itself is illegitimate, then homosexual and heterosexual couples should still have the equal access to marriage: 0 = 0). (X.2)

Without better justifications than have been advanced, the conservative demand for exclusive privilege to heterosexual monogamous couples is indeed homophobic and heterosexist, but the liberal-reformist cry to Let them eat wedding cake! is, to overextend a metaphor, only cutting homosexual couples an equal slice of a rotten cake. (X.3)

Indeed, the liberal-reformist critique is often itself subtly heterosexist, in that the arguments often, to a more or less overt degree, suggest that the highest ideal to which queer people can aspire is the ideal of having a relationship just like the straight mainstream, except with a different gender configuration in the couple.7 (X.4)

XI. The Radical Critique: A Society Without Marriage

The radical critique of marriage analyzes marriage-privilege as an unjustified social privilege and argues that the social ills surrounding marriage (including heterosexist privilege of heterosexual couples over homosexual couples through marriage) are best addressed not by reforming and patching up marriage-privilege but by going to the root of the problem and abolishing marriage, re-orienting the community to a society of individuals rather than households. As a concrete example of this kind of analysis, radical feminist critic Betsy Brown (2000) writes that instead of fighting for same-sex marriage, queer advocates and feminists should work for the principles that: (XI.1)

  1. Everyone should have a guaranteed right to medical care. Universal health insurance would make the debate over partner benefits entirely unnecessary. (XI.2.1)
  2. Immigration laws should be abolished. Same-sex partners of U.S. citizens could then enter the country with no difficulty. The persecution of undocumented workers would also end. (XI.2.2)
  3. Laws that limit the number of unrelated people who live in one household should also be abolished. (XI.2.3)
  4. We should develop the concept of designated next-of-kin (DNOK). This would be like domestic partnership, except more inclusive. You could name any number of people as DNOKs—friends as well as lovers. You would have the right to include—or exclude—any of your biological relatives. Your DNOKs would have automatic rights to visit you in the hospital, make medical decisions for you if you were incapacitated, assume custody of your children when you die, and inherit from you in equal shares. (If you’re really rich, some of your estate should be appropriated to finance item number one.) (XI.2.4)
  5. Finally, marriage is best understood as a religious sacrament8. The government has no more business determining who marry than it has deciding who is a member in good standing of the Baptist church. Under the principle of separation of church and state, the government should not recognize marriage for anyone of any sexual orientation. If you wish the right to marry, that should be an issue between you, your betrothed, and the duly appointed representatives of whatever faith you practice. If you don’t like any of the available religions, feel free to start your own, with or without a god or goddess. For instance, you could start the Universal Church of Queer Matrimony. (XI.2.5)

In each case, the functions of marriage which are legitimate (such as the purely private matter of designating a next-of-kin) could be handled through alternative means. The illegitimate functions (such as special status for taxes or entitlement-program benefits) will simply be eliminated. (XI.3)

The changes called for by the radical critique would involve a truly revolutionary reorientation of society. From the legal standpoint alone, it will require a fundamental overhaul of tax law, welfare law, custody of children, inheritance, and innumerable other categories. (XI.4)

From the social standpoint, on the other hand, much could stay the same. Ironically enough, most of the everyday pattern of what is now married life could remain in place while marriage was abolished. It would still be perfectly conceivable, even quite likely, that erotic couples (including heterosexual monogamous couples) would choose to live together, share economic resources, and share much of their time together. Many might choose to raise children. Some might choose to celebrate their relationships with ceremonies and parties at major events such as moving into a house together, which could very well be a lot like today’s weddings. Everything positive and life-affirming in romantic relationships could exist well enough within a society without any special category of marriage. (XI.5)

However, just as much would stay the same, much would also undergo a truly radical overhauls. With the special categories of husband and wife (as well as fiancee and divorcee and so on) gone, so also would go the restriction on sexuality to relationships which are marriages or marriage-like (i.e., boyfriend/girlfriend). Sexuality would no longer be mediated through the public-private categories of courtship and marriage, but rather through completely individualized private relationships, effectively a special class of erotic friendship. There would be heterosexual monogamous couples still, to be sure, but every other form of mutually consensual and rewarding sexuality (as well as asexuality) would be equally legitimate and valid, and none would receive special privilege and subsidy over others. (XI.6)

The work of imagining such a society from a society where marriage-privilege is one of the founding principles of civil society is extraordinarily difficult. However, if marriage-privilege is recognized as such and cannot be justified, then it is imperative that we begin to do this difficult, slow work of re-imagining and re-constructing new ways of working, playing, living, and loving together. (XI.7)


  1. To lay out some central terms: Queer is roughly synonymous with Lesbian, Gay, Bisexual, Trans, or Questioning, but without any connotation that a queer sexuality is necessarily a fixed character trait or something you are born with. Homosexuality and gay are used throughout to mean any romantic-sexual relationship between two people of the same gender (either male or female), whether those people are exclusively homosexual, bisexual, or any other conceivable variation. Homophobia is an overt attitude of hostility towards people who have homosexual relationships; heterosexism is an attitude which does not necessarily involve overt hostility, but simply ignores homosexual relationships and treats romantic relationships in such a way that only heterosexual relationships are seen as real or legitimate.

  2. This is reconsidered below with regard to the historical effects of marriage on women, but the essential truth of it will remained unchallenged.

  3. The list of legal benefits is gleaned from Shepherd (2001).

  4. From an earlier paper I wrote advocating the Liberal-Reformist position in favor of queer marriage. I no longer stand by the views I advocated in that paper and consider the arguments I made to be not only shoddy, but also often heterosexist, overly willing to naturalize male aggression, and lacking in imagination for alternative routes to the benefits of marriage.

  5. This is opposed to a society of individuals, in which social institutions apply benefits, costs, and rules to individuals rather than to households of one or more people.

  6. It is important to note here that even though only the pater familias received any particular privilege in this relationship, it still meets the prior elaboration of the concept of marriage, since that specified that the household received privilege, but did not specify whether all of the individual members of the household received privileges. The husband was explicitly defined as head of household by law and custom, and so it was his interests which defined the interests of the household unit in the society.

  7. The rhetoric from authors such as Andrew Sullivan, Jonathan Rauch, and at one time, myself, often advances arguments that allowing gays to marry would help encourage stable, married life while discouraging the flamboyant and often promiscuous fringe lifestyle of some of the most vocal homosexual activists (Johnson [1999]). This rhetoric often ends up as little more than the insistence that the ideal for queers is simply unquestioning assimilation into the heterosexual / heterosexist mainstream, moving out into the suburbs and becoming Soccer Mom Queens.

  8. In a fully marriage-free society the religious sacrament aspect of marriage would also cease to exist, since this is also a status of privilege within a sub-community. But Brown is putting forward policy directions, which of course will be implemented to bring society toward a radical reconstruction without marriage, rather than a society where this has already happened. [footnote added by Charles Johnson]


2 replies to The Cake is Rotten Use a feed to Follow replies to this article

  1. "Nick Manley" - The Curious "Deviant"

    “”However, just as much would stay the same, much would also undergo a truly radical overhauls. With the special categories of “husband” and “wife” (as well as “fiancee” and “divorcee” and so on) gone, so also would go the restriction on sexuality to relationships which are marriages or “marriage-like” (i.e., boyfriend/girlfriend). Sexuality would no longer be mediated through the public-private categories of courtship and marriage, but rather through completely individualized private relationships, effectively a special class of “erotic friendship”. There would be heterosexual monogamous couples still, to be sure, but every other form of mutually consensual and rewarding sexuality (as well as asexuality) would be equally legitimate and valid, and none would receive special privilege and subsidy over others. (XI.6)

    The work of imagining such a society from a society where marriage-privilege is one of the founding principles of civil society is extraordinarily difficult. However, if marriage-privilege is recognized as such and cannot be justified, then it is imperative that we begin to do this difficult, slow work of re-imagining and re-constructing new ways of working, playing, living, and loving together.””

    This is a wonderful summary of what should exist!! And I would add that the success of this viewpoint culturally would defuse the current debate over gay marriage. It would render the very idea of third party authority vetting of relationships meaningless. That is what I meant in my piece about a need to redefine our basic notions about family and romantic relationships. A legal system based on no privileges for marriage is a dialectical extension of this basic philosophic-cultural viewpoint.

    It’s good to see individualists like you living in “free marriages” too. If it’s not too personal, may I ask how you and your wife were married? She struck me as an “eccentric” (in the sense of being open to “weird” ideas) and a thinker; when I met her at the Molinari convention. It was a good chat we all had that day — you, I, Jeremy, and her.

  2. Rad Geek


    Do you mean the ceremony? If so, it was a fairly conventional non-religious ceremony, with a few gender-egalitarian twists. We enlisted a woman who does weddings for a living, had an outdoor ceremony in June with a lot of family and friends in attendance, especially from Laura’s side of the family, since the wedding was in the Detroit area and Laura’s (large, Catholic) family pretty much all lives somewhere or another in metro Detroit. A friend of the family (now, actually, married to my sister-in-law) played guitar and sang while we walked down the aisle; we had members of the wedding party read some a couple pieces of poetry, and we exchanged rings and vows that we’d rewritten from a basic template that the officiant had available for us. Then had a reception with a meal and a dance-floor and an iTunes playlist at a meeting room a few feet away from where we held the ceremony.

    (For what it’s worth, if I were rewriting the essay today, I expect I’d probably write it differently, in terms of vocabulary, if nothing else out of a certain humility attending the fact that I am now married in the eyes of society and the State, and it’s one of the most important things in my life, and all that. What I’m calling for is abolition of marriage-as-we-know-it and the attendant privilegs. Whether that amounts to abolition of marriage per se, or whether what would persist in a free society in the absence of marriage-privilege could still, in some sense, be called marriage is an answer that I suspect there just is no good in-principle answer to. At most, I’d say, In one sense, yes; in another sense, no.)

    It was good meeting you, too, and talking with you after the Molinari event.

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