Brown, Jennifer; (2020) Just Marital Establishment. Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

During the course of their lives, many, if not most citizens in modern liberal states, enter into, develop, live through, and sometimes terminate, significant personal relationships. In the vast majority of these states, the predominant and often only means of regulating and recognising such relationships within family law has been through the institution of marriage, which has a formal relationship of establishment with the state whereby the state reserves the right to apply the label ‘marriage’ to only certain types of relationship, and confers benefits on those that receive the label. In recent years this practice of marital establishment has been challenged by various liberal disestablishmentarians who argue that it is inconsistent with liberal values such as liberty, equality, and neutrality, and that consequently, the state should get out of the business of marriage and administer a more inclusive regime of relationship regulation and recognition such as civil unions or relationship directives. The purpose of this thesis is to respond to this challenge. Specifically, I entertain the possibility that Matrimonia, a state that symbolically establishes marriage as a cultural institution whilst also providing rights, benefits, and recognition to a broad range of relationships, can be a good enough liberal state even when compared to Omnia, where the alternative institutions endorsed by disestablishmentarians are in firmly in place. By both disputing and developing the work of recent marital establishmentarians, I endorse the use of a practice-dependent approach in order to account for the value of marital establishment as a pre-existent practice. As a cultural good through which value is pursued collectively, marriage has some normative value that we have reason to protect and recognise. I argue that liberal states can permissibly establish this cultural good if and when it can be demonstrated that marriage does not entail religious establishment, does not involve the state in wrongful discrimination, and does not raise neutrality concerns that are different in kind to those raised by all states, including Omnia. Having argued for the possibility of cases that satisfy these requirements, I conclude that although not required by liberal justice, certain forms of marital establishment can be permissible for states without a resultant loss of their liberal credentials.

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