Marriage: For Or Against Traditional Marriage Models - Essay Example

?Essay Topic: Question 3. “I understand that historically marriage has been an oppressive but can’t queer people change marriage and make it just? Can’t queer people – by virtue of our experience building our own family structures, support systems, and definitions of love and commitment – transform marriage?” (Matthilda Bernstein Sycamore (ed), 2004: 87 (or see 2008 version in the library)). Discuss, with reference to the Civil Partnerships Act 2004. Introduction Historically feminists have criticised marriage characterising it as patriarchal in nature and facilitating the “social oppression” of women.1 Even today although to a lesser extent, the institution of marriage continues to represent male dominance and female subjugation in a patriarchal society.2 Feminists have attacked the traditional patriarchal structure of marriage and have both advocated for and influenced more egalitarian marital constructs, where both parties equally share responsibilities within the home.3 With the ongoing and intensifying debates and movements toward same-sex marriages, observers and academics alike have linked same-sex marriage to gender equality and thus a method by which to transform traditional patriarchal marriage models to a more egalitarian marital structure.4 Same sex partnerships and marriages also challenge the traditional perspective that marriage is primarily a welfare and economic solution. Queer theorists in particular draw attention to sexuality as a distinct class of subjugated citizens and promote the shifting of identities and transformation of all conventional “categorizations and analyzes”.5 Thus conventional concepts of marriage and the social and economic value of marriage are challenged in favour of models built around values of love and commitment between gender neutral environments as manifested by same-sex marriages and partnerships. The potential for the transformation of marriage is evidenced by the Civil Partnership Act 2004 which treats unmarried couples as married, but differs in that it is gender neutral and thus removes the gender distinctions that typically oppress women in marriage institutions.6 This paper analyzes the traditional concept of marriage and its institutionalization of patriarchal values and concepts of gender roles, the current culture toward transforming this patriarchal institution of marriage and how the Civil Partnership Act 2004 is a manifestation of how same-sex marriages and partnerships can restructure and transform marriage toward an egalitarian model. Traditional Marriage Models Dominant Western cultures define marriage legally, socially and religiously as an inherently heterosexual institution as it is defined as the union between one man and one woman.7 However, feminists and women’s movements beginning in the 1960s drew attention to how marriage has been shaped by gender roles. Essentially feminists drew attention to the “gender-based imbalances of power” within the heterosexual marriage.8 Marriage was thus perceived as a social method of institutionalizing patriarchal values. Those patriarchal values positioned men as privileged and women as supportive and insubordinate to men. Thus marriage was perceived as a social institution perpetuating “patriarchy structures social practices” and represented those structures as “natural and universal”.9 Marriage not only reinforced patriarchal values, but organized them.10 The main problem with the institutionalization of gender roles in marriage is that it informs social and cultural norms that manifest gender inequalities.11 Historically and “traditionally husbands have exercised greater control in marriage” and this power is intricately connected to “income” and “status” that men have as the “breadwinner” and thus head of the household.12 While exchange theories would suggest that power follows economic status in marriages, Tichenor argues that power does not change in a marriage where the wife’s economic status and occupation is greater than that of the husbands and thus, in both homes and society, gender dictates where power resides between men and women.13 As Tichenor explains: Women have moved into the paid labor force, but their contributions to income and status have not increased their power proportionately.14 Scott argues further that the gender constructs of conventional marriages are scripted by and follows from social norms.15 Historically, social norms dictated that a stable society was manifested by strong families in which the man went out to work as the family’s breadwinner, made important decisions in politics and fought wars while women remained at home caring for the children and providing a safe refuge for men from the abrasive outside world.16 In more recent times, feminists and women’s movements have heightened awareness of the inequalities in the gender roles of society and thus in marriages. Increasingly there has been wider acceptance of reversed gender roles at home and more egalitarian marriages in which it is perfectly alright for a father to remain at home while a mother goes to work. In turn women are finding greater acceptance in business and politics.17 Even so, there remains resistance to change and the traditional concept of gender in terms of marriage and societal norms continue to slow the transformation of gender distinctions to a more gender neutral society and household.18 Change and transformation of gender roles as manifested by conventional marriages is slowed by social orientation and the socialization process. Implicitly, “gender role socialization” perpetuates the view the “males ought to adopt a traditionally masculine gender role and females a traditionally feminine one”. 19 It therefore follows, that the more society changes, the more it remains the same as there are forces that continue to adhere to tradition and are thus resistant to change. Same sex partnership and marriage movements however, have the potential to reshape our thinking relative to gender roles. Traditional marriages have invited thinking in terms of gender differences and distinct gender roles as a means of understanding social and familial relations. Same sex partnerships and marriages offer a new and gender-neutral matrix for examining social and familial relations and thus provide us with a new way of understanding relationships.20 In this regard, an argument can be made that queer marriages and partnerships can transform marriages and remove the social oppression of women by simply directing attention to family ties through a gender-neutral lens. There are other lessons to be learned from same-sex partnerships and marriages in terms of commitment and marriage as these relationships are gender neutral and rely on connections between two human beings rather than two gendered beings. This paper now turns attention to the gender-neutral nature of same-sex relationships and how they may transform gender distinctions contained in traditional marriages and have contributed toward the social oppression of women. Same Sex Relationships and the Transformation of Gender Roles The proliferation of debates over same-sex marriages have drawn attention to the rights and freedoms of “democratic citizenship” and what it means to fully include all citizens in the distribution of rights and freedoms.21 The distribution of all rights and freedoms for all citizens is of particular concern to queer theorists who represent the rights of gays and lesbians rather than the rights of women which is the sole focus of feminist theorists.22 Queer theory is therefore instructive as it seeks to resist equality on the basis of specific identities. As Wintemute explains: Queerness signifies a more fluid conception of subjectivity, a new elasticity in the meaning of lesbian and gay where the fixity of sexual identity is destabilized. Queerness has successfully challenged the rigid homo/hetero-sexuality binarism by going beyond those categories.23 Queer legal theory in particular opposes the oppressive identities that are perpetuated by the law and in particular takes issue with the categorization and understanding of the classification of queers.24 Essentially, legal theory and its idealization of a declassification of legal and social identities particularly in the context of same-sex marriages and partnerships has the potential to “destabilise the gender specificity of marriage law”.25 The gender specific marriage law represents marriage as: …a performance by which the subjectivities of heterosexual women/men/couple are constituted.26 According to queer theory, when the gendered view of marriage is taken away, identities are neutralized.27 The value of same sex marriages and the tenets of reclassification of identities under queer theory mean that we no longer live and exist in gender specific terms in the context of marriage institutions. When we live in gender specific institutions there is a greater likelihood that we will conform to ascribed and socialized gender roles. As Barclay et al explain, when we live in generalizations, we “impede rather than help” the forward movement of “gender neutrality”. 28 Essentially, living in gendered constructs of the marriage which reinforces social norms means living with and adjusting to “the ‘his’ and ‘her’ varieties that characterise everything from preferences to emotional descriptions.”29 Gendered institutions such as marriage are significant in their oppressive nature because they are normative in relation to sexuality and seek to dictate the lives of men and women alike. Gendered norms dictate who men and women should have sexual relations with and how they should behave and where they should work and how they should function socially and domestically. Thus gendered norms dictate and shape our sexual lives, and also “shape our access to economic resources, and our ability to participate in social and political activities”.30 Queer theory, in particular its argument in favour of same-sex marriages makes a claim to democratic citizenship. This claim to democratic citizenship prioritizes sexual freedom and equality among citizens on the basis of sexual orientation. Queer theory in the context of same-sex marriage advocacy seeks to promote an equal claim to citizenship regardless of sexual orientation and thus envisages equality among all individuals, regardless of sexual orientation.31 The focus on sexual orientation therefore removes gender distinctions and readily acknowledges the diversity among all human beings. Thus same-sex marriages, by removing gender as a descriptive and identification tool, promises to steer attention away from gendered classifications of marriage and as such remove the gender element which has functioned to make traditional concepts of marriage essentially oppressive, particularly from the perspective of females. Given the oppressive nature of the institution of marriage in terms of gendered roles and stereotypes, Auchmuty argues that homosexuals and lesbians should resist the urge to marry. If anything, heterosexuals might wish to model their relationships after queer relationships both “inside” and “outside marriage.”32 According to Peplau, it is popularly believed that same-sex relationships are modelled after heterosexual relationships in which masculine and feminine roles are ascribed. It is popularly believed that in same-sex relationships, one partner assumes the dominant role of male and the other assumes the submissive or subordinate role of female.33 However, according to Peplau, nothing could be farther from the truth. In same-sex relations, there is equality between the couple and they take turns with making decisions and assuming responsibilities within the relationship and family structure.34 As Peplau notes: Only a small minority of homosexual couples engage in clear cut butch-femme roleplaying. In this sense, traditional heterosexual marriage is not the predominant model or script for current homosexual couples.35 It therefore follows that same-sex relationships are flexible and based on a partnership. With queer theory and its claim to democratic citizenship, same-sex relationships form partnerships that are gender neutral and thus more egalitarian in nature. Thus, rather than conforming to the patriarchal structured heterosexual marriage which is inherently oppressive, heterosexual marriages can learn from same-sex marriages. As long as legislators continue to perpetuate the idea that marriage is a union between man and woman, gender distinctions will continue to persist and thus marriage will continue to be oppressive institutions. Legislators however are slowly beginning to accept same-sex relationships, although the move toward redefining marriage as a union between man and woman has yet to be achieved. The Civil Partnership Act 2004 bears this out. The Civil Partnership Act 2004 and the Legal Recognition of Same-Sex Relationships One way of transforming social norms is via legal instruments. Gay and lesbian movements have proven to be successful in affecting social change via legal instruments.36 The Civil Partnership Act 2004 is a manifestation of how gay and lesbian movements have influenced the transformation of social practices and norms. This is a significant milestone in British society as most Western states either ignore same-sex partnerships or merely tolerate them. The Civil Partnership Act 2004 creates a legal recognition of same-sex relationships.37 The Civil Partnership Act 2004 acknowledges and accepts same-sex relationships in a limited way and refers to these relationships as civil partnerships. Section 1 of the Civil Partnership Act 2004 describes civil partnership as “a relationship between two people of the same sex (civil partners)”.38 The Act confers upon same sex partners the right to register their relationship and becomes decidedly opposed to permitting same sex partners the right to marry. This is evidenced by the fact that the 2004 Act only permits the civil partnership to end by “death, dissolution or annulment” while notably omitting the right to divorce.39 The denial of marriage is evidenced by Section 2(5) which provides that: No religious service is to be used while the civil partnership registrar is officiating at the signing of the civil partnership document.40 The Civil Partnership Act 2004 treats same-sex partnerships differently than the law treats heterosexual relationships. While same-sex civil partnerships can be dissolved on the grounds that the relationship has irretrievably broken down as is the case for obtaining a divorce, the five facts used to establish this ground are different in a material respect. Same sex partnerships like heterosexual marriages may be dissolved on the substantiation of the following facts: (a)that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; (b)that— (i)the applicant and the respondent have lived apart for a continuous period of at least 2 years immediately preceding the making of the application (“2 years' separation”), and (ii)the respondent consents to a dissolution order being made; (c)that the applicant and the respondent have lived apart for a continuous period of at least 5 years immediately preceding the making of the application (“5 years' separation”); (d)that the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the making of the application.41 Noticeably absent are contentious facts such as cruelty and divorce, suggesting that in order to dissolve a civil partnership, the parties need not allege facts that will further divide the couple. It also suggests that dissolving a civil partnership is far easier than dissolving a heterosexual marriage. Perhaps more importantly, the required facts necessary for proving the irretrievable break down of the civil partnership tends to suggest that these unions are less about divided power, and more about equality in the relationship. When read together, the facts necessary for dissolving a civil partnership are suggestive of demonstrating equal responsibility for the end of the partnership. The only fact that relies on single responsibility is the desertion. Otherwise, the Civil Partnership Act 2004 assumes that neither party is dominant and thus implicitly acknowledges that in egalitarian unions, no party asserts his or her dominance over the other in terms of physical cruelty. However, there is a more reasonable explanation for the exclusion of the more contentious facts to support the irretrievable break-down of the civil partnership. McNamara explains that the Civil Partnership Act 2004 intended to promote equality. However, it continues to withhold the right to marriage with respect to same-sex couples. In the end however, the Civil Partnership Act 2004 provides same-sex couples with essentially the same “outcome in terms of rights and responsibilities” although it consciously denies same-sex couples the “label” or marriage.42 To this end, “civil partnership achieves parity with marriage in every respect”.43 It can therefore be argued that the government in deciding to pass the Civil Partnership Act 2004 and the decision to retain the institution of marriage for heterosexual marriages, essentially decided to distinguish between heterosexual and same-sex couples’ legal status to a certain extent.44 It may be argued that the distinction is only in terms of labelling. However, a close reading of the factual grounds for establishing a dissolution of a civil partnership inform that the relationships are indeed different. The power distinctions in gendered relationships that invariably lead to a manifestation of that power through violence and at times adulterous relationships are not present in the factual grounds necessary for proving that the same-sex partnership has irretrievably broken down. The Civil Partnership Act 2004 heightens awareness of gender distinctions and gender discrimination as it as given expression to further demands for equal rights. This is important because as more attention is given to removing gender discrimination, the way that gender is defined in marriages becomes less profound. For instance it was argued in Wilkinson v Kigzinger that the Civil Partnership Act’s denial of marriage to same-sex couples was in contravention of Article 14 of the European Convention on Human Rights.45 Article 14 of the European Convention on Human Rights 1950 provides that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.46 Thus Article 14 of the European Convention on Human Rights clearly anticipates that all groups will receive the same rights within the European community of states regardless of group identity. The language in Article 14 is broad enough to include groups that are classified on the basis of sexual orientation. With the Civil Partnership overtly denying same-sex couples the right to marry, queer theorists and gay and lesbian rights’ advocates were able to draw attention to the differentiation in treatment of same-sex couples and heterosexual couples. Nevertheless the court ruled that by passing the Civil Partnership Act 2004, the UK’s government has moved toward according same-sex couples: All the rights, responsibilities, benefits and advantages of civil marriage save the name, and thereby to remove the legal, social and economic disadvantages suffered by homosexuals who wish to join stable long-term relationships. To the extent that by reason of that distinction it discriminates against same-sex partners, such discrimination has a legitimate aim, is a reasonable and proportionate, and falls within the margin of appreciation accorded to Convention States.47 Arguably, while the Civil Partnership Act 2004 distinguishes between heterosexual and same-sex relationships in name only, it also distinguishes between the nature of these relationships by reference to the factual grounds for the dissolution of these relationships. Power is perceived as a predictor of marital conflict and may be manifested in verbal or physical cruelty.48 In a study conducted by Sagrestano et al, 42 couples were surveyed. The survey consisted of questionnaires in which the husbands and wives participating in the survey identified two significant areas of marital conflict. First, husbands who had perceptions of reduces power in a marriage were more inclined to be verbally and/or physically abusive towards the wives. Secondly, wives who perceived they had higher levels of power were more inclined to be verbally and/or physically abusive towards their husbands.49 Whether or not the Civil Partnership Act 2005 consciously left out cruelty as a factual basis for proving that the civil partnership has irretrievably broken down because power struggles are not anticipated in civil partnerships, it does not appear to have invoked claims of inequality by gay and lesbian rights’ advocates. The only contentious issue for gay and lesbian rights advocates was the right to formally marry. It therefore follows that gay and lesbian rights’ advocates do not regard cruelty as an issue in civil partnerships, nor should they. As previously noted, same-sex relationships are not based on traditional gender roles and distinctions and are flexible in terms of managing responsibilities and rights within the relationship. These responsibilities and rights are taken in turns so that the partners are non-gendered and distribute power equally. Thus the likelihood of power struggles and conflicts in the marriage are less likely and thus not a major concern. In this regard, same-sex relationships inform that the removal of gender roles and the expression of queer theorists’ idea of democratic citizenships remove the source of oppression in the institution of traditional marriage. Thus the Civil Partnership Act 2004, whether inadvertently or deliberately, gives expression to the non-contentious or non-oppressive nature of same-sex relationships by removing cruelty as a factual basis for proving that the relationship has irretrievably broken down. Conclusion Traditionally, marriage is viewed as a reinforcement of patriarchal society and the normative expression of the submissive role of women in society and the authoritative role of men in society. In the marriage institution, men are perceived as the breadwinner and women are perceived as domestic with responsibility for serving their husbands and caring for the children and the home. In this regard, traditional marriage as a reinforcement of patriarchal values has been and continues to be oppressive. Feminist theories have drawn attention to the oppressive nature of marriage for females and have influenced more egalitarian marital institutions. However, old habits are difficult to break and marriages are continuing to perpetuate the institutionalization of gender roles and prescriptions, although to a lesser extent. Queer theory however, has drawn attention to a more liberal view of identities that has advocated for democratic citizenship which might be expressed in same-sex marriages where gender-neutrality is a central theme. The Civil Partnership Act 2004 essentially indorses the concept of democratic citizenship by conferring upon same-sex partners the right to form unions that are very similar to marriage, but lacking the label of marriage. More importantly, the Civil Partnership Act 2004, does not require that petitioners seeking to dissolve a civil partnership prove cruelty. It is suggested that this omission from the Civil Partnership Act 2004 is either an unintended or intended confirmation of the egalitarian nature of same-sex relationships. Thus it is surprising that gay and lesbian rights advocates would want to model their relationships after heterosexual marriages, when heterosexuals should be modelling their marriages after same-sex relationships. The latter has fewer if any power struggles as a result of the gender neutral relationships they share and as a result they experience fewer conflicts. It therefore follows that same-sex marriages provide a good model for transforming traditional marriages and thus removing the oppression that typically characterizes traditional marital institutions. Bibliography Textbooks Barclay, S.; Bernstein, M. and Marshall, A. Queer Mobilizations: LGBT Activists Confront the Law. (Albany, NY: New York University Press, 2008). Celello, K. Making Marriage Work. (North Carolina, USA: University of North Carolina Press, 2003). Ingraham, C. White Weddings: Romancing Heterosexuality in Popular Culture. (New York, NY: Routledge 2008). McNamara, L. Human Rights Controversies: the Impact of Legal Form. (Oxon, UK: Routledge-Cavendish, 2007). Strong, B.; DeVault, C. and Cohen, T. The Marriage and Family Experience: Intimate Relationships in a Changing Society. (Belmont, CA: Wadsworth 2011). Wintemute, R. Legal Recognition of Same-Sex Partnerships. (Oxford, UK: Oxford University Press, 2001). 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