A lei e o casamento

Remaking Marital Law, por Roderick T. Long (publicado pelo Center for a Stateless Society):

Opponents of same-sex marriage are quick to raise the specter of polygamy. If “everybody should have the right to marry,” Rick Santorum asked on the campaign trail earlier this year, then “what aboutthree men?” While Santorum clearly intended this quip as a reductio ad absurdum of calls for marriage equality, the Arizona State University philosopher Elizabeth Brake argues in Minimizing Marriage that recognizing polygamous and polyamorous unions is not only required by justice but doesn’t go far enough.

For Brake, marriage not only should not be restricted to opposite-sex couples, or indeed to couples at all. It constitutes unjust discrimination, she argues, to restrict marriage to romantic or sexual relationships. Instead, the social and legal status of marriage should be available to “caring relationships” of all kinds (though not to Santorum’s further bugaboos of “man on child” and “man on dog” unions, since parties to marriage contracts must be legally competent). Moreover, the terms of such marriages should be flexible, rather than fixed by a state-imposed one-size-fits-all model; one might, as in one of Brake’s examples, choose to cohabit with a lover but confer one’s spousal health care benefits on an impoverished relative, and authority for end-of-life decisions on a close friend. The result is what Brake calls “minimal marriage”: marriage with minimal requirements for recognition. (...)

Against those who want less than minimal marriage—i.e., those who favor making the terms of marriage a purely private matter—Brake maintains that caring relationships are “primary goods” whose value is agreed upon by virtually everybody, regardless of their more specific moral or religious convictions. States exist, in part, to ensure equitable distribution of primary goods; and since these goods are not controversial, the state’s involvement does not violate neutrality. Here libertarians are likely to find her arguments less convincing. Neutrality worries aside, are states well-suited to the task of distributing primary goods equitably? The institution’s track record does not inspire confidence.

Brake argues that simply privatizing marriage would “cede control of this still socially powerful institution to the churches and other private-sector groups,” while continuing state involvement “makes equal access to marriage as a social status more likely.” Yet this argument asks us to contrast a state sector imagined as reformed and improved, one whose apparatchiks have evidently read her book and taken her advice, with an unchanged private sector where her arguments have made no impact—in short, a world where marriage traditionalists still dominate public discourse but somehow never get elected. Is this a fair or plausible comparison?