Beyond the marital ideal

There's always a more radical liberalism. Case in point: a recent opinion piece in the New York Times by law professor Laura Rosenbury.

Laura Rosenbury wants family law to change so that it no longer privileges marriage - not even the most liberal forms of marriage. She believes that family law should focus on our relationships with friends.

Why? She explains her position in a longer article she wrote in 2007 for the Michigan Law Review ("Friends with benefits?"). Her starting point is that we should aim to be equal, autonomous, independent individuals and that this aim is better served through friendship than through marriage. Therefore, she wants family law to be rewritten so that we can freely nominate a number of friends (who might change over time) who will receive the state benefits which now go to our spouse or children.

In her article, Laura Rosenbury explains that family law has two goals of "achieving individual autonomy and gender equality within the family." These goals, she argues, as well as that of fostering pluralism, could be more fully achieved if family law began to consider friendship, as friends are able have a personal connection with each other "while simultaneously maintaining aspects of individual autonomy and equality that can be elusive in domestic coupling".

In other words, she believes that through friendship you can have the best of both worlds: "personal connection" as well as autonomy and equality.

To underline this point she goes on to write,

Andrew Sullivan has made a similar connection between friendship and the desire for autonomous living:

"[F]riendship is for those who do not want to be saved, for those whose appreciation of life is here and now and whose comfort in themselves is sufficient for them to want merely to share rather than to lose their identity. And they enter into friendship as an act of radical choice. Friendship, in this sense, is the performance art of freedom."

Friendship is choice, it is freedom, it is "autonomous living". That's the message. And, to be fair, if your aim is "autonomous living" then that's probably right. People don't generally marry in order to achieve goals such as equality, or radical choice or autonomy. They're seeking something else: a loving union with a person of the opposite sex which completes us and which provides a setting for our adult masculinity and femininity; the chance to have children and to fulfil ourselves as fathers and mothers; the opportunity to contribute to one's own tradition by raising the next generation and so on. Most people understand they are sacrificing a certain amount of autonomy in order to fulfil these other aims.

Laura Rosenbury, in other words, is not being illogical in what she advocates - not if the liberal aim of "autonomous living" is the starting point. Once you begin with that aim, then the family will always seem to be a compromised arrangement - even liberalised versions of the family - as the family can never be entirely fluid, never be entirely inclusive or non-discriminatory or non-hierarchical or non-gendered.

As an example of how liberals are unlikely ever to be satisfied with the family, consider Laura Rosenbury's next argument. She concedes that there has been a "revolution in marriage law" resulting from a "policy decision to treat spouses as individuals rather than as a unit".

However, this "process of individualization" isn't sufficient for Laura Rosenbury. Why? Because the two individuals in a marriage are still dependent on each other. They might be treated as individuals within a marriage by the state, but they still need each other to be recognised as a couple in order to get state benefits:

Although spouses are individuals, the law confers benefits to them solely because they are in a couple recognized by the state; if they presented themselves “merely” as friends, they would not be eligible for state recognition. The individuals in the couple are therefore dependent on each other for the continuance of state benefits and legal recognition. This state-induced dependence is at odds with recent processes of individualization, a conflict which has led to increased rejection of “the romantic dyad and the modern family formation it has supported.

So how exactly would Laura Rosenbury like family law to be reformed? She rejects the idea that people might nominate a "designated friend" to replace a spouse. That would still limit autonomy by making coupling too stable and exclusive:

Chamber's proposal permits unmarried couples to have only one "designated friend." Stable coupling is therefore privileged in Chambers' proposal...

The status of designated friends could therefore be described as a “marriage-lite” approach. Although this approach is designed to permit more autonomy and independence within the relationship the primacy requirement limits much of that autonomy.

Take note: in the world of the liberal autonomist it is thought wrong for "stable coupling" to be privileged in family law.

What does Laura Rosenbury want then? It includes this:

...state recognition of friendship must be sufficiently robust to match, or counter, the signals currently sent by state recognition of marriage and family.

...new constructions of family law can better recognize friendship by embracing the principles of nonexclusivity and fluidity. Nonexclusivity is vital to new constructions of family law because exclusivity risks reinforcing the primacy of one comprehensive relationship over others.

...one relatively aggressive approach would gather all of the benefits, default rules, and obligations attaching to marriage and permit individuals to assign some or all of those forms of legal support to the individuals of their choice.

...In addition, such an approach would not necessitate a legal definition of friendship or family, thereby acknowledging the potential fluidity of family and friendship. Individual preference, rather than legal definition, would control which relationships are supported by the state and which are not.

She is reluctant to define family or friendship as this might limit the "fluidity" of such relationships; note too her emphasis on the idea of family law embracing the principle of nonexclusivity, which undermines in principle the "dyad" relationship between husband and wife.

Finally, it's interesting that Laura Rosenbury then pushes an argument that liberal autonomists always seem to arrive at, namely that if we reject marriage we can happily substitute same sex friendships:

Legal recognition of friendship could begin to disrupt these patterns, creating conditions under which women could more explicitly contemplate why they might prioritize domestic family life, particularly married life over friendship. As discussed earlier, Adrienne Rich called on women to engage in such contemplation over twenty-five years ago. Her goal was to challenge compulsory heterosexuality by creating opportunities for women to question why they have embraced marriage with men over relationships with other women.

Legal recognition of friendship could serve a similar function by presenting women with a socially recognized way of living outside of marriage or domesticity. Some women who are not currently living a lesbian life might gain sufficient strength from such legal recognition to prioritize relationships with women—whether the relationships be sexual or friendly in nature, or both—over interactions with men.

But there were feminists who heeded Adrienne Rich's call to set up female communities. The experiment did not have a happy ending.

The larger point, however, is that liberalism is not finished with the family yet. For Laura Rosenbury, relationships must be fluid, non-exclusive, non-gendered, undefined, individualised and independent if they are to meet the test of autonomous living. No version of marriage, not even the most liberalised, can completely satisfy these requirements, so Laura Rosenbury wants non-marital relationships to be legally recognised within family law instead.

And the task for traditionalists? We have to recognise the dissolving logic of liberalism and reject it at a level of principle.