Transforming the Privileges of Marriage

Deirdre McGowan @deirdremcgowan
Head of Law, Assistant Head of School of Languages Law & Social Science, Dublin Institute of Technology

In 2015 Ireland became the first country in the world to introduce same-sex marriage by popular vote. The referendum was not only about legal change.  Marriage has a privileged socio-cultural status and whilst exclusively heterosexual symbolises negative attitudes toward same-sex relationships. The Irish referendum was intended, not only to equalise access to legal marriage, but to make Irish society more inclusive and accepting of LGBT individuals and families. Legal change would, it was assumed, bring about social change. This drive for social change through legal reform is being replicated throughout the Western world, with campaigns for extension of marriage to same sex couples focusing on narratives of social inclusion and equality. Legal recognition and regulation of marriage is taken for granted and legal reform seems the natural route to achieving social change.

Thus marriage, a patriarchal, conservative, largely middle class institution has paradoxically become a symbol of social inclusion and equality. Despite the progressive appearance of the recent Irish referendum, the law regulating marriage and family life in Ireland remains rooted in traditional notions of ideal families and gendered division of labour. The constitutional provision relating to ‘The Family’ simultaneously extols the role of women in the home and guarantees the right of two people to marry without distinction as to their sex. Irish marriage law imposes strict barriers to dissolution and punishing post-relationship obligations, designed to protect the vulnerable dependent wives of home-owning and wage-earning husbands.

The symbolic meaning of the Irish vote is undoubtedly positive. But, pursuing social change through legal change can act to entrench existing legal paradigms and privileges, particularly when such change is brought about through national plebiscite. Marriage has gained a further fillip in its status and those who live their lives otherwise, in one parent families, alone, or as former spouses, are pushed further to the margins. Outside society’s optimal model of family, and without the economic advantages of a two adult household, these ‘others’ also experience the broader practical effects of pro-marriage fiscal policies.

In her challenge to pro-marriage politics, Nicola Barker questions the extension of marriage to gay and lesbian couples, arguing instead that a revolutionary challenge to the marriage model of relationship regulation is necessary. Focusing on feminist and queer theory concerns with individual subjectivities, she applies critiques of heterosexual marriage to legal regulation of same-sex relationships.[1] This is an essential move, but it also necessary to consider the effect of marriage privileging on those outside the normative lifetime, monogamous, couple relationship.

Despite increased recognition of diversity in personal and family life, regulatory frameworks remain focused on lifetime monogamy and social policy measures often favour two adult, marriage model households. Legal reform of relationship regulation, historically and in the present, is driven by claims situated within existing legal frameworks. Whilst delivering symbolic recognition and specific advantages for distinct groups, this type of reform, confined by the parameters of the already existing, cannot produce truly transformative change.

[1] Nicola Barker, Not the Marrying Kind: A Feminist Critique of Same Sex Marriage (Palgrave Macmillan 2013).

 

Deirdre McGowan is the author of Governed by Marriage Law: An Irish Genealogy‘ (2016) 25(3) Social & Legal Studies 311-331

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