Jessica Knouse (University of Toledo - College of Law) has posted Civil Marriage: Threat to Democracy (Michigan Journal of Gender & Law, 2012) on SSRN. Here is the abstract:
This article argues that civil marriage and democracy are inherently incompatible, whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.
Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.