From Union to Association
- Post by: William C. Duncan
- December 24, 2017
In 1888, U.S. Supreme Court Justice Stephen Field wrote the majority opinion in a case involving the validity of an Oregon legislative divorce as it related to ownership of a land grant. In the opinion, Justice Field wrote:
“It is also to be observed that, whilst marriage is often termed by text writers and in decisions of courts a civil contract . . . it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”
Now, the opinion of the justices about what marriage is does not necessarily change social practices or attitudes, but it does tell us something about what very influential elites think about the institution. And law has a teaching and a “channeling” function. It shapes and reflects wider perceptions.
In 1965, the Court issued another opinion with a significant discussion of the nature of marriage. At this time, the opinion’s author, Justice William Douglas, was just less than a year into his fourth marriage. The question the Court addressed involved contraception, but marriage was important here because the opinion was trying to ground a right to contraception in the concept of marital privacy.
In the opinion, Justice Douglas invoked an earlier decision involving the NAACP for the proposition that the Constitution protects “freedom of association” and “privacy in one’s associations.” Perhaps this explains, in part, the opinion’s marriage passage:
“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
Although the opinion plays down the analogy to political associations, it is there—marriage, though different in aims, is as noble as any other association we’ve protected.
A Hopeful Association
Although the term “association” is important here, the real weight-bearing word is “hopefully.”
Seven years later, the Court decided another contraception case. Here, the right asserted was not grounded in marital privacy because the claim was for a constitutional right of single people to access contraceptives. This case, importantly, is framed as an issue of equality—is there a good reason for unmarried individuals to be treated differently from married couples? The Court says no, even though it recognized that there are different evils involved with extramarital and premarital sexual relations.
This case is noted for its jettisoning the marital component of Griswold, but it is also important that Justice William Brennan assumed an equivalence between the married and unmarried. The Court also fully embraced the “association” model:
Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Marriage shows up two decades later in the plurality opinion in Planned Parenthood v. Casey where the Court invokes this exact passage as an accurate statement of “the basic nature of marriage.” The concern here is to prevent a husband from preventing his wife from aborting their child. The opinion invokes the bad old days of coverture and suggests that “a view of marriage” which accords both spouses a say over the life of their unborn child is “repugnant to our present understanding of marriage.”
Our last stop on the case law journey takes us to the summer of 2013. In United States v. Windsor, Justice Anthony Kennedy (one of the authors of the Casey opinion), weighed—and found wanting—a very basic definition of marriage found in the Dictionary Act, that section of the U.S. code which defines certain common words for judicial purposes. It’s interesting that even here, a discussion of the meaning and nature of marriage was really tangential to the decision.
To Justice Kennedy, marriage is the act whereby a couple can “affirm their commitment to one another before their children, their family, their friends, and their community.” It is the government’s conferral of “dignity” and “status.” It is a “status” that “is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.”
In public policy debates involving marriage, many of us have become used to talking about elements of marriage like complementarity, fidelity, and permanence, and this is not surprising since each are bound up with specific policy disputes over divorce, redefining marriage to include same-sex couples, etc.
But the difference at the root of these discussions is more basic.
Court cases and legal briefs still use the word “union,” the word that summarizes Justice Field’s statement that marriage is “more than a mere contract,” but the usage signifies nothing. The recent book on marriage by Robert George, Ryan Anderson, and Sherif Girgis explains effectively why a same-sex coupling is not a marriage because it cannot be a “comprehensive union.”
That insight is important, but this review of the way the Supreme Court understands marriage makes clear that increasingly the law does not understand marriage as a union of any kind. A non-comprehensive union is not a union at all; it is an association.
The word union denotes the creation of a new unit, a new entity. It is, by its nature, comprehensive. It contemplates a welding, sealing, joining of two individuals with an independent nature and purpose—a new organism. Its elements of permanence, complementarity, and fidelity flow from its nature. It facilitates belonging and security and a true equality since both the wife and husband are necessary to its existence. As the British philosopher F.H. Bradley wrote, “Marriage is a contract . . . to pass out of the sphere of contract.” Its virtues are duty and obligation. Its discipline is demanding but, for that reason, transformative. For these reasons and more, it is a sure foundation for procreation and child-rearing.
By contrast, association suggests contingency. Perhaps the relationship has a joint purpose of project but only to the degree the individuals involved opt in. As a result its nature is nebulous, as is its duration. It cannot be too demanding for fear of stretching the commitment of the parties past a breaking point. It can only rely on the commitment of the individuals, since the relationship itself lacks normative structure. Belonging is eschewed as a form of bondage, as is security, which is considered a weakness and an unjustifiable risk. A weak “commitment” replaces obligation, which must be subordinated to choice and autonomy, specifically the belief “that individuals must not be held responsible for their previous choices.” This commitment prioritizes a radical self-creation that could, at any time, necessitate a need to cut ties. Children, too, are a choice (remember the context for the association language—cases protecting contraception and abortion). They accessorize the relationship, and are increasingly actual commodities (as with surrogacy and sperm donation). At best, they are trickle-down beneficiaries of the goods the adults with whom they live derive from their relationships, or lack thereof. They grow up in an environment of uncertainty.
The trajectory of the Justices’ view of marriage has proceeded along these lines: acceptance of an ideal (union), then its gradual abandonment, repudiation, and eventually replacement with the full victory of the new ideal of association. All of this proceeded without a change in core terminology, though the conceptual meaning is utterly transformed.
Griswold and Eisenstadt signaled the abandonment of the marital union as an idea in favor of the association model. It is fitting that these cases struck at conventional sexual morality, since the ideal of chastity is a crucial support to the concept of marriage as union. Premarital and extramarital sexual relations meant an imperfect, illicit uniting (“know ye not that he which is joined to an harlot is one body? for two, saith he, shall be one flesh”) without the intention of being comprehensive.
Griswold preceded the no-fault divorce revolution by a couple of years, and Eisenstadt came just as it was beginning. The understanding of marriage they reflect dovetailed with the push to introduce an easier, and more socially acceptable, escape clause into the legal recognition of marriage. Divorce makes perfect sense when an association has run its course, when the hope of endurance has not panned out. A union in which man and wife are to be regarded as a single organism means that divorce “is something like cutting up a living body, as a kind of surgical operation . . . like having both your legs cut off.” If marriage is a union, divorce is radical; if it is an association, understandable or at most lamentable.
The Devolution Continues
The language in Eisenstadt suggesting an equivalence between marriage and nonmarriage has been played out writ large in the explosion of nonmarital cohabitation. The now-common choice to live together before marriage allows couples not to prepare for marriage, as some claim, but to practice contingency. Contingency is the sine qua non of cohabitation. Like humans and apes, who we are told share 90% of our DNA, marriage and cohabitation look a lot alike—coresidence and at least a modest expectation of sexual exclusivity—but it’s the difference between them that counts, and counts significantly when it comes to outcomes both for the cohabitors and especially for their children.
The Casey decision reflects the belief that the ideal of marital union is not merely no longer an idea worth striving for but an actual obstacle to more fundamental goods—here, radical self-creation. As the increasing prevalence of divorce and unwed cohabitation drove up the marriage age and encouraged both spouses to seek work (and identity) outside the home, the idea (nurtured by some feminist thought) that belonging and dependence were not merely antiquated but downright dangerous, seemed compelling.
Vast sectors of American communities and socioeconomic classes have followed a similar behavioral trajectory—marriage has gone from an expectation to a hope to something akin to a fairy tale. Desired, to be sure, but in the same way one desires to win the lottery. At some point the ideal of marital union came to be nigh incomprehensible.
The current marriage debate, over whether to strip sexual complementarity from the remaining understanding of marriage (and consign its adherents to the fringes where they will be free to believe whatever benighted thing they’d like within the walls of their homes or sanctuaries) represents the appropriation of the concept of marriage for an end entirely unrelated to marital union, indeed from which the possibility of comprehensive union would be excluded. It is the codification of contingency. Same-sex “marriage” would, needless to say, be unthinkable without the previous success of the associative ideal. Coming when it did, it could not help but reflect the assumptions of the associational understanding of marriage.
In 2004, the Mayor of San Francisco briefly offered marriage licenses to same-sex couples before the California Supreme Court ended the practice. At the time an acquaintance jokingly remarked that the latter eventuality would be a boon to the real estate market because previously married same-sex couples would separate to keep their relationships above board. The humor, of course, is in the idea that the ideals connected to marital union would be considered obligatory once marriage came to be a contingent association.
The persistence of sexual difference is probably the sole remaining obstacle to the complete vanquishing of the ideal of union. As long as marriage is understood to require a husband and wife, a real, bodily uniting is still possible. It can unite the two halves of humanity. Sexual difference is also important because it’s a given that must be grappled with rather than a chosen feature. (It also makes sense of the binary nature of marriage.) Thus, ending the centrality of sexual difference will be required to fully make marriage a mere partnership for private, individual ends.
As Justice Kennedy’s assumptions in Windsor make clear, same-sex “marriage” means understanding marriage as rooted in precisely nothing. Choice is no longer a feature—it is the nature of the thing itself. The word “marriage” no longer signifies a choice to unite but an institution the state may use to valorize choice for its own sake. It is a triumph of legal nihilism.
Given this, it’s hardly surprising, too, that the “monogamish” trial balloon went up before the ink was fully dry on the first court decision hinting at a right to redefine marriage.
It is clear that the elites in media, politics, and academia are hardening around the rootless conception of marriage. There was a time, remember, when former president Obama felt he had to nominally express support for the normative understanding of marriage. No more.
An institution rooted so deeply in realities and which answers longings at the “deep heart’s core” will not, however, just disappear. In Tolkein’s words, “deep roots are not touched by the frost.”
Even now there are those who understand and nurture the ideal of marital union. They accept its discipline and become excellent by embracing the obligations it creates. They are being steadily transformed by their union. Their children will not likely comprehend what they owe to that union which alone makes possible their untroubled flourishing.
This last Sunday, I listened to well-deserved praise of a man for his devotion to his wife despite difficult emotional difficulties she has experienced for years. He remarked that she had asked him why he did not leave. His response? “That’s not what I signed up for.” Not for a mere partnership, but to be joined, sealed, united.
As Robert Frost wrote of a young married couple:
Two such as you with a master speed
Cannot be parted nor be swept away
From one another once you are agreed
That life is only life forevermore
Together wing to wing and oar to oar.
William C. Duncan is the Director of the Marriage Law Foundation. This essay was originally presented to the John Adams Center Symposium on January 8, 2013.
 Maynard v. Hill, 125 U.S. 190, 201-211 (1888).
 Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
 Eisenstadt v. Baird, 405 U.S. 438, 4532 (1972).
 Planned Parenthood of Southeastern Pennsylvania v Casey, 505 U.S. 833, 896 (1992).
 Ibid. at 898.
 United States v. Windsor, 570 U.S. __ (2013) at 14.
 Ibid. at 18.
 Ibid. at 20.
 Sherif Girgis, Ryan T. Anderson, & Robert P. George, What is Marriage? Man and Woman: A Defense (New York: Encounter Books, 2012).
 F.H. Bradley, in Roger Scruton (ed.), Conservative Texts: An Anthology (New York: St. Martin’s Press, 1991).
 Scott Yenor, The True Origin of Society: The Founders on the Family, Heritage Foundation special report, October 16, 2013, available at https://www.heritage.org/political-process/report/the-true-origin-society-the-founders-the-family.
 1 Corinthians 6:16, KJV.
 C.S. Lewis, Mere Christianity (New York: MacMillan, 1943), 96.
 J.R.R. Tolkien, “The Song of Aragorn,” in Chapter 10 of The Fellowship of the Ring.