This entry is about how marriage policy operates at a non-constitutional level and why the progressive failure to defend marriage should perhaps give us pause. It is far easier to find academics, including Robin several times in this book, writing about the dangers of relationships than the benefits of them. For decades now, legal academics have criticized the way the law insulates relationships, shields them from scrutiny, and allows them to be violent and patriarchal.
It’s not that this critique is wrong, it’s just that it is highly likely that most of the people reading it, if not making it (at least all the straight ones) are enjoying most of the benefits of the institution being critiqued. Most educated middle class people are living in an insulated relationship, probably a marriage, which they mostly keep private, which they work very hard to maintain because they believe it has value and which provides for them deep sources of love and support and joy.
For sure, not everyone experiences marriage or relationship this way, but as everyone from Charles Murray to Stephanie Coontz has explained, marriage is very popular and works very well for educated elites. We want to get married, we get married, we stay married, we do our damndest to raise our 2.3 children in a household with two married parents . . . but we somehow assume it is uncool to have a discussion about why this is our preferred way of living. We protect our relationships by not airing our dirty laundry; we cringe when we see a story about a divorce in which the parties make their dispute public; we don’t want that publicity to ever attach to us. But we continue to critique privacy, talking only about its harms, while its benefits shape our daily behavior.
I am not suggesting that we reject the progressive critique of relationship or that we ignore the critique of privacy. But after a while those critiques lose their power when insulated, private relationships still thrive among the people making the critique. Given the support and love that can be found even in relationships that can be stifling and patriarchal, don’t we need to have a better understanding of what the advantages are and where they come from, so that we can try to emphasize the good while diminishing the bad in relationship? Given how hard it is to discuss one’s personal relationships in public, why did we ever think a victim of domestic violence would be willing to just walk into court and tell the judge about it? Might we not need to structure our legal interventions so as to protect privacy and not blow it apart?—because if we do not, she is never coming forward anyway. (more…)