Elizabeth Brake

Recent defenses of same-sex marriage and polygamy have invoked the liberal doctrines of neutrality and public reason. Such reasoning is generally sound but does not go far enough. This paper traces the full implications of political liberalism for marriage. I argue that the constraints of public reason, applied to marriage law, entail ‘minimal marriage’, the most extensive set of state-determined restrictions on marriage compatible with political liberalism. Minimal marriage sets no principled restrictions on the sex or number of spouses and the nature and purpose of their caring relationships, nor on which marital rights are exchanged, and whether they are exchanged reciprocally or asymmetrically. Minimal marriage supports adult care networks, urban tribes, friendships, and other forms of relationships as well as ‘traditional’ marriages. I provide a publically justifiable rationale for a legal framework supporting non-dependent caring relationships between adults. The argument is that caring relationships are primary goods, and that liberal justice accordingly requires legal frameworks supporting caring relationships. Minimal marriage is one such framework.

My primary aim is to call into question an influential notion of paternal responsibility, namely, that fathers owe support to their children due to their causal responsibility for their existence. I argue that men who impregnate women unintentionally, and despite having taken preventative measures, do not owe child support to their children as a matter of justice; their children have no right against them to support. I argue for this on the basis of plausible principles of responsibility which have been used to defend abortion rights. I then consider the morally relevant differences between men and women, arguing that while in some cases these differences may justify differential treatment, their import should not be overstated - in many cases, the burden of child support will be too great to impose justly on fathers. This conclusion is not as undesirable as it may seem: I suggest feminist considerations in favor of revising the notion of paternal responsibility and considering alternative arrangements of child support.

This paper responds to arguments that polyamorous groups or care networks do not qualify for equal treatment with marriages. It refutes the points that polyamory is inherently hierarchical or unstable, that there are too few people in such arrangements to mount an argument for recognition, that polyamory harms children, and that there are insurmountable legal and practical hurdles to network marriage. Finally, it respond to the charge that extending recognition to polyamorists will devalue the recognition of same-sex marriage.