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The Re-Branding of Marriage: Why We Got Married Instead of Registering a Civil Partnership

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Abstract

Recent developments in same-sex partnership legislation are reviewed in the light of human rights activism, feminist and LGBT debates, and our own decision to marry. We argue that critiques of marriage based on its reproduction of gendered power relations or its reinforcement of compulsory heterosexuality cannot be applied without problems to same-sex marriage, but that other critiques remain clearly relevant: in particular, state surveillance and regulation of relationships, and the normative construction of 'the couple' as a basic social unit. Civil partnership is no more exempt from these latter criticisms than is marriage itself. The re-branding of marriage as 'civil partnership' is useful to governments in enabling them to extend rights to, and control over, same-sex relationships while reserving the privileged status of 'marriage' for heterosexuals only. Under the camouflage of new nomenclature, marriage 'in all but name' is rendered attractive to feminists and other radicals whose critique does not extend to the re-branded version. We argue that the powerful symbolic meanings of marriage - to the right wing and to feminists - both provides evidence of the need for, and stands in the way of same-sex marriage legislation.
Celia KITZINGER and Sue WILKINSON
The Re-branding of Marriage: Why We Got Married
Instead of Registering a Civil Partnership
Recent developments in same-sex partnership legislation are reviewed in the light of
human rights activism, feminist and LGBT debates, and our own decision to marry. We
argue that critiques of marriage based on its reproduction of gendered power relations or
its reinforcement of compulsory heterosexuality cannot be applied without problems to
same-sex marriage, but that other critiques remain clearly relevant: in particular, state
surveillance and regulation of relationships, and the normative construction of ‘the
couple’ as a basic social unit. Civil partnership is no more exempt from these latter criti-
cisms than is marriage itself. The re-branding of marriage as ‘civil partnership’ is useful
to governments in enabling them to extend rights to, and control over, same-sex relation-
ships while reserving the privileged status of ‘marriage’ for heterosexuals only. Under the
camouflage of new nomenclature, marriage ‘in all but name’ is rendered attractive to
feminists and other radicals whose critique does not extend to the re-branded version. We
argue that the powerful symbolic meanings of marriage – to the right wing and to femi-
nists – both provides evidence of the need for, and stands in the way of, same-sex marriage
legislation.
Key Words: civil marriage, civil partnership legislation, feminist critiques of marriage,
human rights, religious marriage, same-sex marriage
Over the course of the 14 years that the two of us have been ‘together’ (with
changing understandings of what ‘together’ means) we have spent many hours,
at great expense, in solicitors’ offices: sorting out wills (in the face of possible
contestation) to deal with the problem of intestacy in a country that does not
legally recognize our relationship; assigning each other the legal rights of ‘power
of attorney’ to ensure that each can gain access to the other in hospital and make
decisions on her behalf if she is unable to do so; drawing up formal documents
specifying funeral arrangements such that our relationship is publicly recognized;
Feminism & Psychology © 2004 SAGE (London, Thousand Oaks and New Delhi)
Vol. 14(1): 127–150; 0959-3535
DOI: 10.1177/0959-353504040308
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and so on. It is possible for British same-sex couples like us – with money,
resources and determination – to safeguard some of our basic rights. But there
are other rights married heterosexual couples have which we have tried to claim
without success. Despite lengthy correspondence with the UK Universities
Superannuation Scheme – to which we both paid pension contributions compul-
sorily for many years – it will not award us the other’s pension as of right, as it
does for widows and widowers (whose marital relationships we are thereby sub-
sidizing). Unlike heterosexual married couples, we cannot vote for each other by
proxy; we cannot refuse to give evidence against each other in court; we cannot
apply to adopt jointly. Unlike heterosexual married couples, we are not auto-
matically entitled to register the other’s death; we have no exemption from inheri-
tance tax when one of us dies; nor are we eligible for bereavement benefits. These
injustices – along with a host of others including prison visiting, life insurance,
income-related benefits and tenancy succession – will be removed if the proposed
new ‘civil partnership’ legislation in the UK
1
becomes law. Same-sex couples
who register as civil partners will have all the rights of married couples: the UK
human rights group, Liberty (2003), has called it ‘marriage in all but name’.
The formal parallels between this proposed ‘civil partnership’ scheme and civil
‘marriage’ are glaringly apparent throughout the consultation document (Women
and Equality Unit, 2003). According to MP Jacqui Smith (2003: 9), who supports
the proposal, the legislation is designed to recognize that ‘there are thousands of
same-sex couples living in stable and committed partnerships . . . in exactly the
same way as any other family’. The government intends that, as with the hetero-
sexual ideals for marriage, same-sex civil partnerships will be ‘exclusive’
(Women and Equality Unit, 2003, sections 3.3–3.7) and ‘permanent’ (sections
1.2, 3.1, 4.3) unions between non-related adults who commit ‘to support each
other financially and emotionally throughout their lives’ (section 6.1). Civil part-
nerships will be registered using ‘systems already in place for civil marriage’
(section 6.1) and arrangements for the dissolution of registered partnerships will
be ‘broadly similar to those required to bring a marriage to an end by a decree of
divorce’ (section 5.2), with state responsibility for overseeing property division,
residence arrangements, appropriate contact with children etc. The proposed
package of rights and responsibilities acquired on registration are (or are pro-
jected to become) absolutely identical to those of civil marriage in all particulars.
Since 1989, nine European countries (Belgium, Denmark, Finland, France,
Germany, Iceland, The Netherlands, Norway and Sweden) have provided same-
sex couples with the opportunity to register their relationship in front of a state
representative and thereby obtain a portfolio of legal rights and duties with vary-
ing degrees of similarity to heterosexual marriage. The move towards the
extension of equal (or nearly equal, or unequal-but-better-than-before) rights to
same-sex couples represents enormous progress for lesbian, gay , bisexual, trans-
gender (LGBT) liberation and for social justice. The UK proposal is overwhelm-
ingly supported by the LGBT community and 86 percent of lesbian, gay and
bisexual respondents in a 2002 Cabinet Office questionnaire indicated that they
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would consider registering a relationship under this scheme (Women and Equal-
ity Unit, 2003:17, fn. 6). Many of our lesbian, lesbian/feminist and gay friends in
the UK – including those who oppose the institution of ‘marriage’ – are enthusi-
astic about the scheme and some have expressed their intention to register.
We will not be registering our relationship under the new scheme. Instead, we
want the UK government to recognize our marriage. We were legally married in
August 2003 in Vancouver, BC (where Sue is now resident) shortly after the
exclusion of same-sex partners from the institution of marriage was declared
unconstitutional by the Canadian Supreme Court (see Wilkinson, this issue).
Marriages made in Canada are routinely accepted by the UK government as valid
marriages for all legal purposes, and we see no just reason why ours should not
be treated in the same way. The legal advice we have received so far is that our
marriage will not be recognized in the UK, and we are pursuing this with human
rights organizations.
OUR DECISION TO MARRY: THE PRAGMATIC ARGUMENT
For the first 10 years of being ‘together’ (by which we mean something like ‘see-
ing each other as centrally important to each other’s intellectual, political, sexu-
al, emotional and social lives’) we chose not to live together. We both came out
of long-term relationships that had been – according to conventional understand-
ings – ‘marriage-like’ (in Sue’s case, actually a marriage) and we were commit-
ted, both personally and politically, to doing it differently this time – with more
autonomy, freedom and openness. Over those 10 years as we moved around the
UK for job purposes, we took out individual mortgages on our separate houses,
kept our finances separate, registered to vote on different electoral rolls, paid
different utility bills and owned nothing in common. Independence was – and
continues to be – very important to us. Over the years, as our same-sex coupled
friends have ‘settled down’, celebrated ‘commitment ceremonies’ and their
anniversaries, acquired shared homes and possessions, and in some cases had
children together, we found ourselves still choosing (and fortunate to have the
resources still to choose) a more autonomous kind of togetherness, and we have
sustained it across such life crises as a serious illness and the death of a parent.
We find the idea of making an ostentatious ceremony out of our private commit-
ment somewhat embarrassing; neither of us has religious convictions which
might lead us to seek a ‘blessing’ or religious acceptance of our relationship; we
have never wanted the social ritual of ‘the wedding’; and we do not want to
promise each other the unconditional love, lifelong commitment and sexual
monogamy traditionally associated with ‘marriage’.
Four years ago, we started to live not just in different homes but on different
continents – one of us in the UK, the other in the USA (first Celia, then Sue), and
now in Canada (Sue). At that point we discovered we had no ‘evidence’ with
which to lay claim to any kind of government or state recognition of our
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relationship. Various of the contributors to this issue have described how
gaining recognition of same-sex partnerships often requires us to demonstrate a
‘marriage-like’ relationship – the kind of relationship we had explicitly decided
against for ourselves – and the key evidence for this is co-residency, as displayed
through joint mortgage and building society statements; bank accounts and utility
bills in shared names; and a joint address on an electoral register. Unlike Martin
Holt (this issue) and his partner, we were in no position to provide any such
documents, and so we entered first the USA and then Canada as separate indi-
viduals under our own visas.
The notion that partners in ‘marriage’ (or ‘marriage-like’) relationships should
live together is not universal (Barnard and Good, 1984:78–83), but it is deeply
rooted in the psyches of most Euro-Americans (Schneider, 1968), incorporated
into some – though not all – legal systems (e.g. the Spanish Civil Code which
explicitly requires a conjugal common address [Galán, 2003]), and routinely dis-
played in the everyday interaction of many people in the UK (Kitzinger, under
review). It is not, of course, true that all married heterosexual couples do live
together or want to live together, and some feminists, in particular, have seen
living separately from a male partner as a key aspect of their feminism (e.g.
Rowland, 1993). Nonetheless, as Weston (1998:74) points out, the normative
power of ‘co-residence’ as part of the definition of the ‘couple’ is evident in the
fact that lesbian/gay organizations in the USA have helped to frame domestic
partnership legislation that stipulates co-residence for a specified period before an
unmarried couple can register to achieve the legal standing entitling them to
benefits available to married couples. In the state of New York, for example,
domestic partners seeking official recognition must prove that they have lived
together for two consecutive years: however, a man and a woman seeking to
marry can do so without intrusive questions concerning how long they have
known each other or where they have resided. Cohabitation is also a prerequisite
for partnership rights in many other countries, states and provinces (e.g. Portugal,
Australia, Argentina, Catalonia) including, at the time of writing, the UK. Current
UK immigration rules extend entry rights to partners in same-sex relationships
only if they can prove two years’ cohabitation, whereas married heterosexual
partners have rights irrespective of the duration of their relationship and whether
or not they have ever cohabited. As Human Rights Watch (2003: 4) points out:
‘same-sex couples face an unequal and discriminatory burden of proving that
their relationship is “real”’. When a cohabitation requirement is not part of the
definition of legal marriage, requiring of same-sex partners something not
required of opposite-sex partners as a condition of our rights is profoundly dis-
criminatory. This is one of the inequalities that will be remedied if the proposed
UK ‘civil partnership’ legislation as currently formulated becomes law.
In the meantime, it has made our lives personally difficult: it has been our very
lack of ‘fit’ with conventional coupledom that has forced us into the position
where we have to display, via marriage, that we are, nonetheless, ‘a couple’. In
Canada, where Sue is now based, ‘common-law status’ confers rights and respon-
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sibilities on same-sex and opposite-sex couples equally – including immigration
rights – but is limited to those ‘who have been cohabiting in a conjugal relation-
ship for at least one year’ (Canadian Legal Information Institute, 2000). We could
probably have hired a lawyer to argue our case as a ‘common-law’ couple, but in
point of fact the longest period of time we have ever actually lived together in
the last 14 years was six months, and we are now legally ‘residents’ of two
different countries. Alternatively, we could have continued to act as separate indi-
viduals: Celia could have applied for multiple entry visas to Canada (she left and
re-entered the country five times during one eight-month period) and a work
permit for the time she spent at University of British Columbia; we could have
sought out legal advice on wills, pensions, the medical system, the tax authorities
– everything we had already done in the UK, but this time having to deal with
another country’s legislation, and the international legislation too. Getting
married provided a 10-minute solution to what would otherwise have taken
weeks of our lives: for the cost of a marriage licence ($100) and a marriage
commissioner ($75) we gained, with a few signatures, around 120 rights and
responsibilities in Canadian law that we would otherwise have had to use lawyers
to assemble piecemeal.
But we didn’t ‘have’ to get married. We could have been ‘conscientious
objectors’ and borne the cost of our refusal to submit to assimilation into a
heteropatriarchal institution – if we had continued to see it like that. Some
heterosexuals (and, now, some lesbians and gay men) continue courageously to
refuse, in the face of social pressure, administrative hassle, financial costs and
(sometimes) even gross injustice or their own yearnings, to enter into a state-
approved contract historically implicated in the oppression of women and LGBT
people. Marriage was a pragmatically expedient decision for us – but we didn’t
do it for that reason alone. We got married in part because, in the international
social and political context in which we find ourselves, we believe it was more
politically important to marry than to refuse to do so.
EQUALITY AND HUMAN RIGHTS
An argument based on human rights is not necessarily the same as a feminist
argument, but it is the one we want to raise first because we have not often heard
it articulated recently in lesbian/feminist contexts and because – both despite and
because of our feminism – we have a deep commitment to the ideology and
practice of human rights (see Kitzinger, 1987: 191–7). Feminist and other radical
critiques of human rights are important in drawing attention to the limitations of
this framework – especially in dealing with issues of power and powerlessness –
but it is chastening to realize how few members of western democracies have any
attachment to human rights ideology in the first place. In recent years, the
national and international human rights charters have been frequently resisted
(especially by the USA and the UK) whenever their implementation involves the
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extension of equality to lesbians, gay men, bisexual or transgendered people (e.g.
the age of consent debate in the UK [Ellis and Kitzinger, 2002]) and support for
equal rights for gays and lesbians is weak and inconsistent even amongst groups
such as students from whom support might be expected (Ellis et al., 2003).
From a human rights perspective, equal access to marriage for all citizens is a
straightforward human right – a simple matter of justice. Only three countries
permit same-sex couples to marry: The Netherlands (since 2001); Belgium (since
2003) and the Canadian provinces of Ontario and British Columbia (since 2003).
2
And only in Canada is there equal access to marriage for same- and opposite-
sex couples. In The Netherlands, same-sex (unlike opposite-sex) marriage is
restricted to nationals and permanent residents. In Belgium, the International
Private Law requires that the marriage is allowed by the national law of
each partner – meaning (at the moment) that Belgians can only marry other
Belgians, or a partner from The Netherlands, Ontario or British Columbia
(Waaldijk, 2003). The effect of these restrictions is the reintroduction of national
miscegenation laws in the interests of protecting foreign governments against
married homosexuals.
Marriage is a lynchpin of social organization: its laws and customs interface
with almost every sphere of social interaction. Its foundational role in defining
structures of social institution and citizenship means that definitional authority
over what ‘counts’ as marriage, and who is allowed access to it, has always
been intensely political. Systematic exclusion of any group of people from the
institution of marriage has been (and continues to be) a powerful way of oppress-
ing that group in terms both of concrete rights and responsibilities and – more
crucially still – in terms of the symbolic message that the group so discriminated
against is unworthy of equality, and is less than ‘human’.
Same-sex civil partnerships or variants thereof (‘civil unions’ in Vermont,
‘reciprocal beneficiaries’ in Hawaii, ‘civil solidarity pacts’ in France, ‘stable
unions of couples’ in Catalonia) differ from legal marriage in most countries in
that they offer far fewer legal benefits. For example, the systems in Vermont and
California do not (and cannot) cover federal rights such as immigration for a
non-US spouse to become a full USA citizen, the ability to collect benefits on the
death of a spouse, federal taxes, and 1042+ laws triggered by legal marriage (see
Demian, 2003b). Full adoption rights are excluded in Sweden, Finland, Norway
and Iceland (amongst others); tax benefits are excluded or reduced in Belgium,
Germany and France; social security rights are excluded in Germany; and so on.
3
The use of different terminology for same-sex relationships and heterosexual
marriage reflects a real legal distinction between them in countries such as these
– a distinction obscured when the term ‘marriage’ is sometimes erroneously used
to describe them. Whether or not such civil partnerships are also open to hetero-
sexual couples, they are typically treated as something ‘less than’ marriage. The
French ‘civil solidarity pact’, aimed at gay couples but open also to straights, is
apparently ‘a hit with heterosexuals’ who don’t ‘feel ready’ for marriage, and
who see the union as ‘a trial run’, a step along the road to marriage without ‘going
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that far’ (Daley, 2000). Such comments graphically display the ‘lesser’ status
of civil partnerships by comparison with marriage. According to one political
analyst, by devising for same-sex couples a form of partnership distinct from
marriage (from which they continue to be excluded), the French legislation has
performed ‘symbolic violence’ (Rault, 2003) against lesbians and gay men.
In the UK, where it is proposed that the rights and obligations of civil partner-
ships will be identical in all particulars to civil marriage, the creation of civil
partnerships addresses the problem of discrimination at the cost of creating an
apartheid system of state-recognized relationships: marriage, which is open only
to opposite sex couples, and partnership registration, which is open only to
same-sex couples. If the proposed version of ‘civil partnership’ offers – as the
proposal indicates it will – all the benefits and responsibilities of civil marriage,
and differs from it in no particulars, then it should be called ‘marriage’. The
difference in nomenclature functions to achieve a symbolic separation of same-
sex couples from the hallowed institution of ‘marriage’.
4
This ‘re-branding’ exercise is important both to governments and to some
feminist and LGBT activists. From governments’ point of view, it extends rights
(as required in the UK by the resolutions and recommendations of the European
Court’s human rights legislation) – as well as state surveillance and control of
lesbian and gay citizens – while preserving the privilege of marriage itself exclu-
sively for heterosexuals. From (some) activists’ point of view it enables them to
gain state recognition and protection of their partnerships on virtually the same
basis as that of marriage, while apparently not having to relinquish or to reassess
their critique of marriage as an institution. From a human rights perspective,
the introduction of some kind of civil partnership legislation (for same- and for
opposite-sex partners) may well be a useful supplement to marriage: but as long
as marriage exists for heterosexuals only, it is not a just alternative to it.
Exclusion from marriage – on grounds of the partners’ gender, sexual orienta-
tion, race, ethnicity or religion – has always been used as a tool of oppression. On
15 September 1935, the Nazis
5
passed the Nuremberg Law for the Protection of
German Blood and German Honour stating that:
Marriages between Jews and nationals of German or kindred blood are
forbidden. Marriages concluded in defiance of this law are void, even if, for the
purposes of evading this law, they are concluded abroad. (Nuremberg Law,
1935)
Likewise, the Immorality Act and the Prohibition of Mixed Marriage Act of
the South African Apartheid regime (repealed in 1985) prohibited marriage and
sexual contact between ‘races’. Forty US states once prohibited ‘interracial
marriages’ (defined, for example, in South Carolina as ‘the marriage of a white
person with a Negro or mulatto or person who shall have one-eighth or more of
Negro blood’). ‘Interracial’ marriage was still criminalized in 15 US states as
recently as 1967, when the US Supreme Court overturned those laws in Loving v.
Virginia (Romano, 2003). Richard and Mildred Loving (he was white, she was
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black) were married in 1958 in Washington DC because their home state of
Virginia still upheld the antimiscegenation laws. The intermarriage of a ‘white’
and ‘colored’ person in Virginia was illegal, and the statutes explicitly prohibited
any Virginia mixed-race couple who left the state for that purpose from returning
to live in Virginia as a married couple. Five weeks after the Lovings returned to
their home, sheriffs walked into their bedroom while they were sleeping and
charged them with a felony. They were convicted and sentenced to one year in jail
unless they left the state and agreed not to return together for the next 25 years.
According to the sentencing judge: ‘Almighty God created the races white, black,
yellow, malay and red, and he placed them on separate continents [ . . . ] The fact
that he separated the races showed that he did not intend for the races to mix’
(Romano, 2003: 188–9). Other arguments against inter-racial marriage were that
they must be forbidden ‘simply because natural instinct revolts at it as wrong’
(according to a senator from Wisconsin); they are ‘distasteful to our people’
(Tennessee court judge); ‘involve the degradation of traditional marriage’ (a
spokesman from Georgia); and ‘cannot possibly have any progeny’ (a Missouri
appeal judge)
6
(all cited in Demian, 2003a). The parallel with objections to same-
sex marriage are self-evident. It is this history of marriage that is evoked by Egale,
the Canadian LGBT campaigning organization, when it points out that:
Registered partnerships are no substitute for equal marriage. Imagine if the
federal government prohibited interracial couples or Jewish couples from
marrying, but said we’ll let you register your partnership instead. The very idea
is offensive and demeaning. (Egale, 2003)
We believe that no civil institution should be reserved for heterosexuals only, any
more than it should be reserved for whites or for ‘Aryans’ only. Justice Laforme
wrote in a landmark decision in the struggle for same-sex marriage in Canada:
Any ‘alternative status’ that nonetheless provides for the same financial benefits
as marriage in and of itself amounts to segregation. This case is about access to
a deeply meaningful institution – it is about equal participation in the activity,
expression, security, and integrity of marriage. Any ‘alternative’ to marriage, in
my opinion simply offers the insult of formal equivalency without the [Canadian
Charter of Rights and Freedoms] promise of substantive equality. (Egale, n.d.)
The segregationist ‘separate but equal’ doctrine was rejected by the US
Supreme Court in the Brown v. Board of Education case (1954). It ruled that
the segregation of schools on the basis of race violated Constitutional equality
guarantees, even though the physical facilities and other ‘tangible’ factors may
have been equal. The Court held that ‘separate educational facilities are inher-
ently unequal’ because to separate students ‘from others of similar age and
qualifications solely because of their race generates a feeling of inferiority as to
their status in the community that may affect their hearts and minds in a way
unlikely ever to be undone’ (Egale, n.d.). In parallel fashion, the exclusion of
same-sex couples from marriage sends a negative message about our status in the
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community, and humiliates and degrades lesbians and gays – whether or not we
personally want to get married, whether or not we personally feel humiliated, and
whatever our attitudes and judgements about marriage as an institution. It wasn’t
necessary to approve of the education system to argue for equal entry for black
children. It wasn’t necessary to approve of the party political system to demand
votes for women. It isn’t necessary to support the capitalist organization of labour
relations to campaign for equal opportunity for women in the workforce. And it
is not necessary either to approve of marriage or to want it for ourselves to under-
stand that our exclusion from it is devastatingly unjust. It is, then, in part on the
basis of this human rights argument that we support the international campaign
for same-sex marriage. It is in the interests of justice and equality that we want
same-sex marriage in place of ‘civil partnerships’ for same-sex couples in the
UK (and everywhere else); and it is one of the key reasons why we got married
ourselves.
NORMATIVE CONSTRUCTIONS, FEMINIST CRITIQUES AND FEMINIST
POSSIBILITIES
We also have deep commitments to the ideology and practice of feminism. For at
least two centuries, many feminists have argued passionately against marriage as
an institution of heteropatriarchal oppression and, as Auchmuty (this issue) points
out, ‘for many feminists today, revulsion against it is so engrained it feels instinc-
tive’. If we’d had a choice between registering a civil partnership and getting
married, we would certainly have ‘instinctively’ chosen civil partnership: for us,
as for many of our generation, the problems of marriage had been thoroughly
thrashed out in the 1970s, and the critiques were so profound and far-reaching as
not to need revisiting. But we didn’t, in fact, have a choice between the two insti-
tutions. Neither of the two countries of which we were separately resident
(Canada and the UK) offered civil partnerships in 2003. If we wanted either
government to recognize our relationship (and we have described why we did),
then it had to be marriage – and that meant we had no alternative but to revisit the
marriage critiques and decide whether or not we found it politically acceptable to
go down that route, and what the political alternatives were.
Marriage has changed dramatically over the last 100 years. Feminist chal-
lenges to the gendered exploitation and abuse of marriage have altered it almost
beyond recognition. Feminist success in challenging the most egregious gendered
oppressions of marriage (e.g. the legal non-existence of married women, their
legal inability to own property or to gain custody of their children) mean that
some early critiques have become redundant because their proponents achieved
what they set out to do – they changed the institution of marriage. Many of the
continuing problems of (heterosexual) marriage (e.g. the unequal distribution of
household labour, emotion-work, and coercive sex) are problems of hetero-
sexuality more generally, and not specific to marriage (although they may be
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intensified within it). Of course, for many feminists the aim was not to ‘improve’
marriage, but to end it – but the logic underpinning this position was often
(though not always) predicated on the status of marriage as a heterosexual insti-
tution symbolizing male supremacy and female subordination. With civil
marriage as a legal right for same-sex couples, and the international development
of civil partnerships (‘marriage lite’) it is important to develop radical feminist
re-theorizing of marriage, gender, sexuality, human relationships and the inter-
section of all these with the state.
To a large extent, our own previous analysis (Wilkinson and Kitzinger, 1993),
like that of other feminists, is specific to heterosexual marriage because it focuses
on the gender hierarchy of marriage – the historical gendered inequities manifest
within and through it, via traffic in, and male violence against, women and the
exploitation of women’s unpaid labour under the guise of romantic love – and on
its role in enforcing compulsory heterosexuality and heterosexual privilege. (See
also the classic critiques by Atkinson 1974; Firestone 1979; Pateman, 1988; Rich,
1983.) These arguments against marriage are not transferable wholesale to the
lesbian and gay context. Objections to same-sex marriage based on the existence
of hierarchical gender relations within, or the exclusion of same-sex partners
from, the institution of heterosexual marriage are inappropriate. However, there
are feminist critiques which apply to marriage irrespective of the gender of the
marriage partners, and it is these which now need to be brought to the foreground
in feminist discussions. And if ‘civil partnerships’ are, as Liberty has proclaimed,
‘marriage in all but name’, then these critiques apply as much to civil partnerships
as to marriage itself, and need to be considered in relation to both institutions.
Although civil partnerships in many countries involve most – sometimes
virtually all – of the rights and obligations of marriage (as in the UK proposal),
there is a notable absence of feminist critique or analysis of them. Yet the socio-
legal and political structures they reflect and help to construct – especially in
those countries where they are open both to same-sex and to opposite-sex couples
– can be virtually indistinguishable from those of marriage. In civil partnerships,
as with marriage, people are ‘paired off’ into units of two adults plus any
dependent children and social benefits and obligations organized with reference
to those units; and in civil partnerships, as with marriage, the adults concerned
often understand their decision to seek state-approval and control of their
relationship in terms of love and commitment (and celebrate that with rituals,
ceremonies – sometimes religious – parties and holidays). Differences, where
they exist, between marriage and civil partnerships, do not appear to us to be
sufficient to exempt civil partnerships from feminist critique.
In reconsidering our feminist analysis of marriage, we have needed to ask
ourselves what is meant by ‘marriage’ itself. We have learned a great deal about
normative cultural constructions of marriage – and the pervasive preoccupation
with ‘weddings’ – since making our own decision to marry. For many people,
mention of our marriage evoked – even when we took them to be joking – a
flower-bedecked church, where, swathed in white lace (or tuxes), we would walk
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radiantly up the aisle, accompanied by the strains of organ music, to the waiting
priest at the altar. There have been enquiries, some serious, others less so, about
the hen night, the matron of honour, the confetti, the cake and the speeches at the
reception. The jokes (a question about who would be ‘giving us away’; a father’s
humorous complaint that he had not been ‘asked for (his) daughter’s hand in
marriage’; objections from several lesbian and gay friends that we hadn’t invited
them to be bridesmaids) depend, of course, on precisely this contrast between the
conventionalized image of the traditional wedding (which is thereby invoked)
and what we were assumed to be doing. Alternatively, we’ve been quoted frag-
ments of vows from the Church of England marriage service (‘love, honour and
obey’, ‘forsaking all other’, ‘’til death do us part’) by feminists and lesbian/gay
activists who, in indignation, outrage or dismay, assume that by marrying we
accepted these conditions. In telling people about our marriage – especially
people in the UK which is not rigorous in its separation of church and state – we
have come to realize that what many of our friends and colleagues hear in the
word ‘marriage’ is this rich medley of ancient pagan and traditional Church of
England symbolism in which ‘the wedding’ represents a vow of life-long monog-
amous love sanctified by religious ritual. We approached our own marriage from
a fundamentally pragmatic and political perspective, and none of this bears the
remotest resemblance to what we actually did, or why we decided to marry. The
powerful symbolism of marriage (shared it seems by many feminists and lesbians
as well as by right-wing legislators and religious leaders) trails in the wake of the
word itself and makes it difficult to discuss the practical, civil and legal implica-
tions of marriage in modern nation-states.
Reviewers specifically asked us to develop our argument about how it is
possible for ‘marriage’ to be separate from religion – saying (in some cases)
that for them it was inextricably related to the religious faiths they inherited from
their childhoods. It is, of course, true that many marriages – including same-sex
marriages – are performed in a religious context, so that a couple are married ‘in
the eyes of God’. For them also to be married ‘in the eyes of the law’, however,
they must contract their marriage before an agent of the state and in conformity
with state regulations. Indeed, for centuries, same-sex couples in Britain (and
elsewhere) have sought out and received blessings of their relationship (‘religious
marriages’) by representatives of their faith willing to perform such ceremonies.
According to historian John Boswell, who uncovered a large variety of manu-
script versions of Christian same-sex union liturgies in libraries and ecclesiasti-
cal collections throughout Europe, Christian marriage rites between same-sex
partners date back to before the 4th century – pre-dating substantially the wide-
spread performance of heterosexual ceremonies in the 11th century (Boswell,
1994). In Greece and parts of the Orthodox West and East, formal rituals and
blessings of same-sex relationships remained in effect officially until the 14th
century (Cabaj, 1998: 4). More recently (especially since the founding of the
Metropolitan Community Church), a range of different religious groups and indi-
vidual representatives of them – including, despite the Vatican’s recent (July
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2003) pronouncements, Roman Catholics – perform same-sex blessings or holy
unions (Haldeman, 1998). These ceremonies do not, however, in and of them-
selves confer any legal rights or responsibilities – nor can they in those countries
of the world where civil marriage is closed to same-sex partners.
In many European – and some Latin American – countries, when someone
chooses a religious ceremony, they must hold that ceremony separately from the
‘civil’ ceremony. French law recognizes only the civil marriage which must be
performed by a French civil authority in a city hall before any religious cere-
mony; religious ceremonies are optional and have no legal status. In some
countries, notably the USA, the UK and the Republic of Ireland, both ceremonies
can be held together: the officiant at the religious ceremony also serves as an
agent of the state to enact the civil marriage. Just as there is religious marriage
without civil marriage, so too there is civil marriage without religious marriage.
State marriage licences (routinely available in virtually every country of the
world) are not religious in any way: they are contracts made between the couple
and the state, not with any religious body. No clergy are required for a civil
marriage and the couple do not need to be a member of any religious organiza-
tion. Civil marriage laws often diverge from religious precepts and recognize as
valid marriages that religious standards may not – for example, remarriage after
divorce, when a locally prevailing religion may condemn both. The government’s
position on same-sex marriage in Canada has depended to a large extent on this
traditional separation of church and state. In supporting the extension of equal
rights to marriage to same-sex couples, Canada’s Minister of Justice (who, like
the Prime Minister, is a practising Roman Catholic) has insisted on the distinc-
tion. Just as the Catholic Church has never been compelled by the government
to marry a divorced person, so it will never be compelled to marry a same-sex
couple. Indeed, its right to refuse to do so is guaranteed by the same human rights
legislation that declares unequal access to civil marriage to be unconstitutional –
and the Canadian government has repeatedly assured it (along with representa-
tives of other religions) that this right will be protected in the proposed new
federal legislation amending the definition of marriage (see Wilkinson, this
issue).
7
Our demand for civil marriage for same-sex partners in the UK (and inter-
nationally) is a claim for access to a civil institution, and not to a religious
ceremony.
Marriage is no more ‘intrinsically’ religious than – for example – celebrating
a birth and naming a baby (religious ‘christening’ rituals notwithstanding) or
publicly grieving a death (religious funeral traditions notwithstanding). Across
the world, rites of passage such as giving birth (and being born), coming of
age, requesting public acknowledgement of a deep interpersonal attachment,
approaching death and mourning another’s death have culturally variable but
deeply established ceremonial (religious) rituals associated with them. In con-
temporary western societies we can (albeit often with difficulty) refuse the tradi-
tional rituals, adapt them, or invent our own. Despite the claims both of some
feminist critics and of the religious right, marriage is not the private property of
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any religion. Civil marriage is fundamentally the concern not of religion but of
the state.
Our marriage is a civil, not a religious, contract. It was performed with the
minimum number of people present (the marriage commissioner, as agent of the
state, and two witnesses she provided for the occasion), and we then went to the
beach for a swim and out to dinner, where we celebrated both for ourselves and
to mark British Columbia’s leading role in extending equality and human rights
to same-sex couples. There was no religious ritual, no vows of sexual exclusivity
or life-long commitment and no wedding reception. We understand that others
may want these things to varying degrees (as part either of a civil marriage or to
mark the registration of a partnership) – but they were not relevant to our under-
standing of what we were doing, or why we were doing it. The key meaning of
our marriage, for us, is that our continuing (and reaffirmed) centrality in each
other’s lives now stands some chance of being protected – even facilitated – by
governments and states that have previously marginalized and condemned us for
loving women. More broadly, we also experience it as a powerful symbol of the
gradual erosion of prejudice and discrimination against lesbians and gay men and
of the slow progress towards social justice.
Our marriage has variously evoked amazed delight, passionate repudiation and
conflicted longings in the hearts and minds of our feminist, lesbian and gay
friends. Had we been in any doubt, the conversations we’ve had about it have
confirmed the fundamental status of marriage as a hugely symbolic event even –
or perhaps especially – in the lives of those of us excluded from and/or critical of
it. One of the hardest things to deal with in talking about our marriage both with
those who ‘approve’ and with those who do not, has been to communicate what
marriage means – to us and to governments – as a civil contract, divested of reli-
gious import, and shorn of the heavily normalized and gendered cultural con-
structions surrounding ‘white weddings’ (Ingraham, 1999) and the ‘marriage
mystique’ (Gellner, 2001). As recent research has shown, an extraordinarily
traditional and romanticized image of marriage (more specifically, of weddings)
has come to define what marriage ‘means’ in commonsense terms for many
people. But it no more reflects the reality – even of heterosexual marriages – than
the traditional image of the ‘family’ (as a married heterosexual couple living
together with their biological children) reflects the diverse reality of that institu-
tion. Both ‘marriage’ and ‘the family’ have been damaging and oppressive to
women, to lesbians and to gay men. Although, as Lempert and DeVault (2000: 6)
say, ‘the nuclear family idea endures as a representation that powerfully shapes
activity, institutional life and policy’ (and see Kitzinger [under review] for how
traditional ideas of ‘the family’ are embodied in people’s everyday actions), in
fact families are assembled and lived in a diversity of forms utterly unlike the
contemporary Euro-American normative construction. Historically and cross-
culturally these have included same-sex marriages: for example, the early same-
sex unions of early Christianity (Boswell, 1994); the Nuer woman–woman
marriage (Evans-Pritchard, 1951); the homosexual marriages of Western Egypt
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(Cline, 1936); and marriages in which spouses were never co-resident (e.g. the
Nayar, for whom the basic social group was the taravad, a unit composed of men
and women descended from the female line so that husband and wife lived
separately, each with their mother and maternal kin [Menon, 1996: 134]).
‘Marriage’ and ‘the family’ are social constructions: we should not relinquish
control over them to conservative politicians and/or to the religious right wing by
retreating instead to the apparent (but we think illusory) safety of the ‘civil part-
nership’. Instead of simply abandoning terms like ‘marriage’ and ‘the family’,
some feminists and LGBT activists have claimed the right to recognition of
‘families we choose’ (Weston, 1991) and of ‘emergent and reconfigured forms of
family life’ (Lempert and DeVault, 2000). Our oppression within the contempo-
rary version of the ‘traditional family’ (as women), and our forced exclusion from
it (as lesbians and gay men), co-exist with creative possibilities of inventing our
own family forms and laying claim to their legitimacy. Demanding the right to
marry is not equivalent to endorsing either the traditional symbolic meaning of
marriage, or the present system of marital rights and benefits. As Calhoun argues,
pressing for marriage rights and for socio-legal recognition of lesbian and gay
families does not mean we have to advocate an outdated ‘Ozzie and Harriette’
8
ideal for lesbians and gay men. It does mean:
. . . having the privilege that heterosexuals alone have heretofore had, namely the
privilege of claiming that despite their multiple deviations from norms
governing the family, their families are nevertheless real ones . . . It also means
having the cultural authority to challenge existing familial norms, to redefine
what constitutes a family, and to demand that the preferred definition of the
family be reflected in cultural and legal practices. Centered within a liberatory
lesbian and gay politics, the bid for access to the family is the bid for the right to
exercise definitional authority with respect to the family. (Calhoun, 2000: 156)
Along with other lesbian critics (e.g. Pierce, 1997[1995]: 174) we do not feel
confident in resting our case for equal marriage on the possibility that lesbians
and gay men might improve the institution from within. Just as many lesbians and
gay men aim for similarity and assimilation anyway, with or without marriage
(see Kitzinger, 1987), the evidence so far seems to be that many same-sex mar-
riages are being celebrated in very traditional ways (see Wilkinson, this issue).
Clearly, some are being used in an effort to assimilate into mainstream hetero-
sexual cultures, ‘mimicking all that is bad about the institution of marriage in our
efforts to appear to be the same as straight couples’ Ettelbrick (1997[1989]) or
displaying ‘simple accommodation to the norms of the straight world, a calcu-
lated effort to win acceptance by somehow fitting in’ (Lewin, 1996: 126). From
a human rights perspective, the fact that some of us may not like what people do
with their equal rights is not an argument against equality.
From a radical feminist perspective, we can hope that the assimilationist
desires and normalization strategies adopted by conservative lesbian and gay
couples do not wholly determine the meaning of their acts in the world. In her
study of lesbian ‘commitment ceremonies’, Lewin (1996: 127) suggests that ‘the
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complex symbolic strategies played out in these ceremonies indicate that resist-
ance and accommodation are neither distinct nor mutually exclusive’. In demand-
ing public recognition of a same-sex relationship, even a same-sex couple
otherwise representing conservative views asserts that marriage is not ‘naturally’
exclusive to heterosexuals, and that marriage need not institutionalize gender.
Undoubtedly, too, entry into same-sex marriage will be used by some lesbians
and gay men – as it has been by heterosexuals – to challenge prevailing norms
and ideologies of marriage. Heterosexual women – who have the right to marry
– have been among the feminists who, from the 19th century onwards, have been
highly critical of marriage and have produced substantial changes in marriage
laws and in social understandings of marriage, including the right of married
women to own property, to gain custody rights over their children, and to retain
their own names; and (more recently), winning changes in – for example – no-
fault divorce, alimony payments, child support legislation and rape in marriage.
If heterosexual women have launched critiques against marriage from within,
then why not lesbians and gay men? Moreover, one of the most sustained and
potentially influential recent discussions we have seen of the option of abolishing
civil marriage altogether came not from feminists but from a proposal in the
Canadian government’s consultative document to do just this (see Wilkinson,
this issue). Gaining access to the institution of civil marriage – indeed, having
governmental authority over it – need not prevent us from challenging and seek-
ing to change it, or even from abolishing it altogether.
OUR PERSONAL POLITICS OF MARRIAGE
Despite our support for the campaign for equal marriage rights, and despite our
own decision to marry, we remain critical of marriage as an institution. Many of
the features which made marriage blatantly oppressive for women, and for
lesbian and gay people, have been successfully challenged (at least in some
countries). Others (the religion, the ‘you only and forever’ ideology, the roman-
tic myth, the wedding) are optional elements. But marriage retains a powerful
symbolism – of God, nature, tradition and procreation – which makes it deeply
unappealing. Paradoxically, as we will argue, it is the very importance of this
symbolic power that leads us to demand access to the institution. There are two
features intrinsic to ‘marriage’ itself that cause us both personal and political
concerns. As we have said, we married in part because we wanted international
governments to recognize that our relationship was of crucial importance to us,
and we wanted some measure of freedom to organize our lives (including our
comings and goings across national borders) to reflect that. However, govern-
ment recognition also involves state regulation and control, and is predicated on
the privileging of the (presumed sexual) ‘couple’ relationship over other kinds of
ways that people relate to one another. For these reasons we are not particularly
enthusiastic about ‘improving marriage from within’ (even supposing that we
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were confident that same-sex marriages would achieve that). Instead, we want
equal access to what is currently a social institution with immense legal and sym-
bolic power, the exclusion from which is deeply detrimental to many lesbians and
gay men, while simultaneously exploring with other feminists alternative ways in
which the relationships between individuals might intersect with state assigned
rights and responsibilities.
First, then, marriage involves handing over regulation of our relationship to
the state. We were free, before marriage, to ‘pick and choose’ what rights we
wanted in relation to each other and to change these as our relationship altered
over the years – at least, that was the theory. In practice, as we have described,
this ‘freedom’ was exhausting, expensive and to a large extent illusory. We were
certainly ‘free to be separate’ but we ran into repeated obstacles – both nationally
and internationally – when we sought to be ‘free to be together’. With our
marriage the situation has reversed (at least in Canada). We were stunned to read
that nearly a half of (heterosexual) couples preparing to marry apparently gen-
uinely believe that marriage will not change the legal – the legal! – nature of their
relationship with their partner (Hibbs et al., 2001, cited in Auchmuty, this issue).
When we signed the marriage register, the government assigned us over 100
rights and responsibilities in relation to each other, and now holds us accountable
for these (and can enforce them under Canadian law) unless or until such time as
we figure out legal ways to jettison some of them. Changes in marriage law (and
hence to our own contract, with each other and with the state) can be made with-
out our consent and even without our knowledge. As we are not legal scholars,
we don’t even understand the meaning (let alone implications) of some of the
marriage laws by which we are now bound – it feels a bit like having signed a
blank cheque. Moreover, the complete package of rights and responsibilities
which bind us to each other, and us as a couple to any government which recog-
nizes our marriage, can only be dissolved by divorce under legislation over which
we have no control. Currently, Canadian law requires that one member of the
couple must be resident in Canada for a period of one year before instigating
divorce proceedings: this means that Sue, but not Celia, will have the right offi-
cially to terminate our marriage – a significant inequality in our relationship that
wasn’t there when we had no legally recognized relationship to terminate.
At the moment, at a personal level, it feels – despite these concerns – as though
we have made a reasonable trade-off. For us, not being married meant having to
alter aspects of our lives to bring our relationship into some kind of conformity
with the dominant ideology of ‘marriage-like’ relationships. We transferred our
homes to joint names and opened a joint bank account at exactly the point at
which we started to live in two different countries because, without these official
markers of coupledom, and facing the complexities of international law, we
feared for our right to be together. Actually being married means that we don’t –
at least in Canada – need do ‘marriage-like’ things any more. Celia can now enter
the country (and work here) as of right as Sue’s wife – not via (tenuous) claims
to ‘marriage-like’ behaviours such as cohabitation – and if our marriage were
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accepted internationally, we would no longer need to use the joint bank accounts
and mortgages to shore up our claims to be ‘a couple’. It is true that same-sex
marriages place lesbian relationships under the rule of law (Robson, 1992) – but
it is also true, in our experience, that lesbian relationships are anyway under the
rule of law – laws which delegitimize our relationships, and keep us apart from
one another, or force us to compromise in order to satisfy conventional hetero-
sexual criteria of ‘togetherness’. The broader issue for feminists is what role the
state should have in regulating human relationships – a complex question which
needs to be addressed in relation to our responsibilities for children, the elderly,
the disabled and other vulnerable social members.
Second, an integral component of marriage is that it legitimates and rewards
one particular form of relationship: the private one-on-one ‘exclusive’ and
presumed-sexual couple – a critique that various feminists (e.g. Butler, 2002;
Robson, 1998) have articulated in different forms. According to this argument,
heterosexual marriage has been the cornerstone of ‘the family’ and has been a key
means (along with biology) through which kinship relations are generated. The
normative ideal of the intimate ‘couple’ relationship reinforces romantic myths
and expectations that have trapped women in oppressive relationships. When
social policy and legislation privilege ‘the couple’, and by extension the nuclear
family (whether headed up by same-sex or opposite-sex partners), it discrimi-
nates against other ways of organizing our relationships. To pursue rights exclu-
sive to people in couples (whether those rights are accorded to ‘married’ couples
or to those in ‘civil partnerships’) is to deny equal value to the diversity of other
(sexual and non-sexual) human relationships. It creates a ‘two-tier system of the
haves and have-nots’ (Ettlebrick, 1997[1989]: 168) that leave the unmarried
without rights and status. It also accepts the couple as a central organizing feature
of citizenship, represents ‘the failure to develop more collective forms of com-
mitment and responsibility, in fields such as, health, poverty, transport, and
migration’ (Cooper, 2001: 77), and enables governments to further privatize
economic and health resources, endorsing individual rather than collective
responsibility for well-being (Boyd and Young, 2003). In general, we agree with
this argument and we are interested in exploring alternative ways in which
society might be organized with no special provision for private ‘couple’ or
‘family’ relationships as such, and with recognition of the possibility of a plural-
ity of intimate arrangements for sex, affection, reproduction, economic support
and care for the young, the infirm and the elderly (Kymlicka, 1991). We find
ourselves in a paradoxical position personally: our own centrally important
intimate relationship with one another was not recognized by the governments
with power to determine key aspects of our lives.
As feminists and as LGBT activists we need to develop a vision of how we
want our world to be organized – how individuals and their various relationships
might best interface with legislation and social policy. Some version of civil part-
nerships – though not as governments are currently defining them, as effectively
based on marriage itself – might well provide the way forward in enabling the
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recognition in law and social policy of a range of different kinds of intimate
relationships. At the same time, as long as marriage exists as a civil contract from
which same-sex couples are excluded, there is a fundamental injustice. When
living in a country (like Canada) in which the government has conceded a right
to marriage that is then threatened by a right-wing backlash (see Wilkinson, this
issue) – or in a country (like the USA) in which the President attacks his own
citizens’ rights to marriages made across the border (Marriage Watch, 2003); or
in a country (like the UK) in which the government plans to offer same-sex
couples a look-alike marriage substitute for the real thing – we need to decide on
our political strategies. Anything less than ‘marriage’ for same-sex couples sends
the message that the government sees us as second-class citizens. Indeed, the
willingness of governments to grant civil partnerships to same-sex couples seems
to be precisely because they preserve marriage itself exclusively for hetero-
sexuals. Civil partnerships may – as in the proposed legislation in the UK – incor-
porate all the civil rights of heterosexual marriage. By re-branding as ‘civil part-
nership’ a union that is otherwise identical to opposite-sex civil marriage, civil
partnerships achieve the symbolic separation of same-sex couples from the state
of ‘marriage’. They grant same-sex couples the possibility of legal conformity
with institutional arrangements which formally recognize heterosexual intimacy
while effectively excluding us from that very institution. The irony is that this
separation is positively valued by many feminists and LGBT activists because it
is the symbolism of ‘marriage’ – and not the civil institution itself – that is the
target of their critique.
We are concerned at the way in which civil partnerships, ‘marriage in all but
name’, have become dissociated from radical critiques of marriage as an institu-
tion. To some extent this is a deliberate strategy of their promoters. For example,
the Canadian bill that extended ‘common-law’ rights to same-sex couples (Bill
C-23) emphasized that ‘ . . . the amendments made by this Act do not affect the
meaning of the word “marriage”, that is, the lawful union of one man and one
woman to the exclusion of all others’ (Pepin, 2000) – a definition that came back
to haunt the government when, only three years later, it proposed equal marriage
rights for same-sex partners. Similarly, the UK government proposal for regis-
tered partnerships points out that ‘the government has no plans to introduce same-
sex marriage. This consultation document is about a civil partnership registration
scheme’ (Women and Equality Unit, 2003, 1.3). The New Zealand government
proposal was reported likewise: ‘the law would not introduce gay marriage . . .
People would be able to officially pledge their commitment to each other, and be
afforded the same legal rights as married couples’ (Tunnah, 2003). Meanwhile,
journalists routinely use the metaphors and images of traditional marriage in
reporting these developments: The New Zealand Herald presented the proposed
partnership legislation under the headline ‘government moves to allow gay
couples to legally tie the knot’ (Tunnah, 2003); and the BBC News (2003) illus-
trated a report on UK civil partnership rights with a pink tiered wedding cake
topped by two figurine brides.
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We take very seriously the deep abhorrence for same-sex marriage which we
have encountered, in equal measure, from those with religious or conservative
political convictions, and from some feminist and LGBT activists. Marriage is
treated, by both groups, as the preserve of heterosexuals and as inescapably
related to traditional gender roles, heterosexuality, religious observance and the
maintenance of the existing social order. The religious right wing seeks to protect
the purity of marriage from lesbians and gays; some LGBT activists seek to
protect lesbian/feminist communities or queer culture from ‘marriage’. The re-
branding of ‘marriage’ as ‘civil partnership’ in countries like the UK seems to
have gone some way towards placating both sides: the change in nomenclature
seems effectively to sidestep both sides’ repugnance toward the very idea of
‘lesbian/gay marriage’.
Civil partnership is not exempt from what we consider the two key criticisms
of civil marriage. In many ways it can be characterized as the new version of an
old institution, designed to achieve the same effects. Both civil partnership and
marriage depend on, and reproduce, the couple and their nuclear family as the
basic unit of social organization; both construct a privatized legal relationship
between members of a couple and between the couple and the state. Lacking the
symbolic weight of centuries of romantic and religious endorsement, civil part-
nership may feel like the modern, less restrictive option. But the distinction – in
legal and policy terms – may turn out to be minor or non-existent. The product
has been re-branded for the contemporary market: civil partnership is to marriage
as the ‘wonderbra’ is to the whalebone corset.
In sum, the symbolism of marriage, rather than its features as a civil institution,
is key both to lesbian and gay couples’ forced exclusion from it, and to some
activists’ refusal to accept or demand it. Repulsed by the symbolism of marriage,
many activists are content that same-sex partner rights are at last being recog-
nized via ‘marriage in all but name’, through a system which is designed to
deliver formal equivalence (or near equivalence) without substantive equality.
The radical critique of marriage – much of which applies equally to civil part-
nerships – is abandoned with the change of name. The campaigns to promote civil
partnership legislation focus on ‘deserving’ lesbian and gay couples in ‘marriage-
like’ relationships (co-resident, long-term, assumed monogamous, often with
children), while those of us who live outside these heteronormative ideals for
coupledom are sidelined. In the meantime, the history of oppression – in Nazi
Germany, in the segregationist states of the USA, under the South African
apartheid regime – shows how powerfully the exclusion of certain groups from
marriage both reflects and perpetuates that oppression, and it does so, in part, pre-
cisely because of the huge symbolic importance cultures attach to ‘marriage’ as
an institution. As long as marriage exists, we need radical critiques and creative
efforts to construct alternatives; and we need equal rights of access to it every-
where in the world.
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NOTES
1. According to a BBC report of 10 Sept 2003, the Scottish Cabinet has decided not to
introduce its own legislation but to accept the UK Parliament’s legislation on rights for
same-sex couples (BBC News [UK] Scotland, 2003).
2. It seems possible that South Africa will be next: on 1 September 2003, the Law Reform
Commission of South Africa released a report condemning the absence of formal legal
recognition for same-sex marriages as unconstitutional. Same-sex marriage is also
currently being debated by the Swiss legislature, and was the main demand of the
demonstration (of more than 150,000 people) in Madrid on 30 June 2001 (Galán,
2003).
3. A recent overview of the level of legal consequences of marriage, cohabitation and
registered partnership in nine European countries found pervasive differences between
marriages and registered partnerships, with the greatest differences in the field of
parenting (rather than material) consequences – especially with respect to assumption
of paternity, joint adoption, and medically assisted insemination (Waaldijk, 2003a).
4. Beyond the symbolic, it has implications for the recognition of relationships inter-
nationally. An international convention governs the recognition of marriage across
national borders (the Hague Convention No. 26), stating that a civil marriage certificate
issued by a competent authority in one country should be presumed valid in another
unless established to the contrary (Article 10). By contrast, a registered partnership is
not binding on any government other than that which initially endorsed it (Human
Rights Watch, 2003) – a restriction that makes it, in actuality, much less than ‘marriage
in all but name’. Those of us with legal civil same-sex marriages contracted in those
countries that permit them at least have the opportunity to demand that other nations
honour them. They may well refuse: the married Canadian couple, Kevin Bourassa and
Joe Varnell were refused entry into the USA on 18 September 2003, because American
customs officials would not accept their clearance forms as a ‘family’. It was initially
argued that they could do this, despite the Hague Convention, because of the existence
of the Defence of Marriage Act (DOMA), introduced by the US government in 1996,
defining marriage as ‘the union of a man and a woman as husband and wife and a
spouse is the husband or wife of the opposite sex’; however, others have argued that it
was a misapplication of DOMA (see Osborne, 2003).
5. The Nazis did not, of course, attempt to control same-sex marriage but simply
murdered lesbians and gay men along with Jews, gypsies, the disabled and other ‘social
undesirables’.
6. This articulates the old white supremist belief that the offspring of whites and blacks
were sterile, just like the mules that result when horses and donkeys mate (Demian,
2003a).
7. Whether or not we think they should do so, and whether or not it is in fact in their own
best interests to do so (given the overwhelming support for equal access to marriage
amongst the young generation who are thereby alienated from religious institutions), is
an issue separate from their right to do so – thank you to Sara-Jane Finlay for drawing
this to our attention.
8. Ozzie and Harriette are the highly traditional, ultra-conservative ‘husband’ and ‘wife’
characters of a 1950s American TV sitcom.
146 Feminism & Psychology 14(1)
02_FAP14/1 articles 12/2/03 11:05 AM Page 146
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ACKNOWLEDGEMENT
The following people provided helpful feedback on an earlier version of this article:
Caroline Banks, Jacky Bishop, Virginia Braun, Victoria Clarke, Sara-Jane Finlay, Sheila
Kitzinger, Elizabeth Peel, Rebecca Shaw and Merran Toerien. We take full responsibility
for the arguments expressed here, with some of which we know each of them disagrees.
Celia KITZINGER is Professor of Conversation Analysis, Gender and Sexuality
at the University of York, UK.
ADDRESS: Department of Sociology, University of York, Heslington, York
YO10 5DD, UK.
[email: celia_kitzinger@yahoo.com]
Sue WILKINSON is Ruth Wynn Woodward Professor of Women’s Studies,
Simon Fraser University, Canada.
ADDRESS: Department of Women’s Studies, Simon Fraser University,
Burnaby BC, V5A 1S6, Canada.
[email: sue_wilkinson_2000@yahoo.com]
150 Feminism & Psychology 14(1)
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During the course of their lives, many, if not most citizens in modern liberal states, enter into, develop, live through, and sometimes terminate, significant personal relationships. In the vast majority of these states, the predominant and often only means of regulating and recognising such relationships within family law has been through the institution of marriage, which has a formal relationship of establishment with the state whereby the state reserves the right to apply the label ‘marriage’ to only certain types of relationship, and confers benefits on those that receive the label. In recent years this practice of marital establishment has been challenged by various liberal disestablishmentarians who argue that it is inconsistent with liberal values such as liberty, equality, and neutrality, and that consequently, the state should get out of the business of marriage and administer a more inclusive regime of relationship regulation and recognition such as civil unions or relationship directives. The purpose of this thesis is to respond to this challenge. Specifically, I entertain the possibility that Matrimonia, a state that symbolically establishes marriage as a cultural institution whilst also providing rights, benefits, and recognition to a broad range of relationships, can be a good enough liberal state even when compared to Omnia, where the alternative institutions endorsed by disestablishmentarians are in firmly in place. By both disputing and developing the work of recent marital establishmentarians, I endorse the use of a practice-dependent approach in order to account for the value of marital establishment as a pre-existent practice. As a cultural good through which value is pursued collectively, marriage has some normative value that we have reason to protect and recognise. I argue that liberal states can permissibly establish this cultural good if and when it can be demonstrated that marriage does not entail religious establishment, does not involve the state in wrongful discrimination, and does not raise neutrality concerns that are different in kind to those raised by all states, including Omnia. Having argued for the possibility of cases that satisfy these requirements, I conclude that although not required by liberal justice, certain forms of marital establishment can be permissible for states without a resultant loss of their liberal credentials.