No feminist theorist has taken a stronger stance against civil marriage than Martha
Fineman.
Fineman takes her insights regarding the inevitability of dependency to new
and original places when she uses it to critique the privileges given to the marital family.
The state privileges and subsidizes married couples, she argues, based on the autonomy
myth—here applied to how families, rather than individuals, should function (Fineman
2004: 57). According to this myth, the marital family is seen as a strong and independent
unit that does not need state support. Because of this presumption of autonomy, Fineman
points out with irony, married couples receive hundreds, if not thousands, of subsidies
and privileges from the state that are unavailable to others (104-05; see also Dougherty
2004).
Fineman indicts current marriage policy on several grounds. She contends that
autonomy is possible for no one, including married couples; in the post-industrial era, in
fact everyone exists within a web of institutions that provide for at least some of their
needs. For this reason, she argues, the pursuit of autonomy should be abandoned in favor
of insuring that human needs are humanely and justly met for all citizens, not just those
in families (199, 285). Fineman also criticizes other justifications for the multitude of
benefits accorded to marriage. Insofar as the state focuses on the marital family to
support childrearing, Fineman contends, it is sorely out-of-touch: large portions of the
population raise children out of wedlock, while, at the same time, many married couples
choose to remain childless (67, 110-112). A state that truly seeks to support the welfare
of children should therefore support childrearing for all children, not just for children
whose parents are married (xvii). And insofar as the state subsidizes the marital family
2
Fineman’s views on this issue have received significant critical debate. See, e.g., Scott
2004, Shanley 2004.
Law School User
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8/23/2005
Convention