What is Marriage? A Reply to David Leyonhjelm

In the Australian Financial Review (13/7/14) – you can find a copy of his essay here – DL outlined his argument for removing the qualification that marriage is exhaustively a relationship between the sexes. What is his argument? Well, it is actually difficult to grasp.

He begins his essay by comparing ‘arranged’ marriage with ‘modern’ marriage and invites us to consider how the former is any different an interference than our existing situation where marriage is defined as a relationship between the sexes. He presses this claim by then arguing that just as arranged marriages might have been a norm of the past, so too now can we say that marriage being a relationship between the sexes is also a norm of the past. However, what DL fails to do is distinguish between aspects of marriage that are accidental/incidental (changeable) and those that are essential (unchangeable).   

The implication of his argument is that any and all aspects of marriage are accidental/incidental. Indeed, he says in one passage that “human societies have had every form of marriage imaginable”. But what is the form, marriage, he is talking about that remains unchanged while other aspects change or ‘evolve’? If there no essential characteristics to marriage, then how could we identify – or fail to identify – marriage in this or that historical period or different culture despite all these incidental changes? On this he remains silent, even suggesting at the end of the essay, “If there are to be ‘definitions’, let them be drafted widely” as if any definition is onerous and restricting. But why? I will answer that shortly.

The next move of his argument, however, is strange indeed. Having argued that marriage has taken every ‘form’ imaginable he then declares that Roman law has an important lesson to teach us: that marriage is private. Wait a minute, his argument so far was simply to say that marriage was, so to say, this in Rome, that in Athens, and so in. How, then, could Rome have anything to teach us about marriage now even if we do accept arguendo that marriage was simply a private matter in Rome two thousand or so years ago (it wasn’t, that is why concubines were subordinate to wives in Roman law)? All we could say is that marriage was a private matter in Rome then (though it wasn’t); not that it should be in Rome or anywhere else now, or that marriage per se just is private.

At one point in his essay he turns up the rhetorical dial to eleventy when he writes that laws defining marriage as a relationship between the sexes are akin to past common-law restrictions on marriage between different religious confessions or races. But, again, not only does he not present an argument which shows that these restrictions are similar -they’re not – he completely misses the point that Jews, Catholics, Protestants, whites, or blacks could marry among themselves and that they were recognized as marriages by all. The analogy is simply not there. And the simple fact that they could marry among themselves suggests that any restrictions on marriage between Catholics and Protestants, and so on, had nothing to do with the nature of marriage itself at all.

To put it bluntly, DL’s argument is incoherent. Its plausibility depends upon a sustained equivocation about what marriage is by repeatedly referring to various incidental changes to marriage that give the illusion that marriage itself has changed over time or was different fundamentally in certain places. Truth be told, DL is not concerned with marriage at all, he is concerned simply with relationships; he is noting that historically and culturally there have been different forms of adult relationship.  And there have been, who would deny it? But so what? Moreover, what else explains his reluctance to define marriage? What is at issue here is not whether there have are different types of relationship, but whether the changes he provides as examples, or the change he proposes, changed, or will change, marriage?

If, as I suggest, marriage has always been an exclusive, permanent relationship between the sexes orientated towards unifying the couple and the children that may arise therein, then the answer is that the examples he provides are all compatible with the form and purpose of marriage as outlined, whereas the alteration he proposes is not. If marriage is not a relationship between the sexes then it is not orientated towards children and therefore there could not be an in-principle reason that it be permanent and exclusive. DL remains silent on what marriage is and this silence means that he can provide no in-principle reason why he proposes this alteration alone but not one that also extends the number of persons in a marriage to more than two, and so on. It is as if he never asked himself the question, What is marriage?