i RICE UNIVERSITY The Normative Foundations of Civil Marriage By Jeremy Ray Garrett A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE Doctor of Philosophy APPROVED, THESIS COMMITTEE George She^Herbert S. Autrey Professor Philosophy 'Tristrarfi I^elhafdifProfessoi Philosophy ///? //'V^ Alastair Norcross, Associate Professor Philosophy, University of Colorado-Boulder David J. Schneider, Professor Psychology HOUSTON, TEXAS AUGUST 2008 UMI Number: 3362225 INFORMATION TO USERS The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleed-through, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. UMI8 UMI Microform 3362225 Copyright 2009 by ProQuest LLC All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 ii ABSTRACT The Normative Foundations of Civil Marriage by Jeremy Ray Garrett Marriage is an undeniably important institution of modern civilization. Indeed, among the fundamental institutions forming the basic structure of society, perhaps only law and property exercise a more profound influence upon citizens' life prospects. Yet while the latter institutions have long been considered objects of primary importance to political philosophers, the institution of marriage has not received comparable philosophical treatment. In fact, despite the profound influence of marriage on the structure and quality of individual and social life, it is fair to say that, outside of explicitly feminist and natural law circles, the institution has rarely been treated as a topic of any philosophical interest since the nineteenth century. In my dissertation, I seek to make some headway in exploring these relatively uncharted philosophical waters. Within the complex range of conceptual and normative questions surrounding marriage, I focus on arguably the central political-philosophical question concerning the institution: "Should the state establish, recognize, and/or maintain a civil form of marriage?" In addressing this question, I identify, analyze, and critically evaluate the most prominent arguments purporting to justify the state's authority to legally establish and regulate marriage. I conclude that marriages in a pluralistic society ought to be mostly private affairs worked out between or among those party to the arrangements, with the state's involvement limited to the enforcement of (1) general laws (e.g., regarding property, torts, crime, etc.) and (2) particular contracts that are individually initiated and designed within a defensible system of contract law. The project, as I see it, produces at least three significant conclusions. First, the dominant form of civil marriage in contemporary Western societies, traditional civil marriage, derives from inherited beliefs and practices that are philosophically problematic. Secondly, and more abstractly, any substantive account of the basis for civil marriage in a pluralistic society will ultimately prove unsatisfactory for one reason or another. Finally, marital contractualism constitutes a promising and attractive alternative to a preformed, state-defined institution of civil marriage in political theory and practice. Acknowledgments This project has been aided and improved by numerous mentors, colleagues, and friends. I want to begin by acknowledging the excellent committee that assisted me with its development and completion. George Sher was in every way an ideal chair for my committee. His influence on my philosophical development began long before this project, but his critical acumen and good judgment were never more helpful than they were here. George's influence runs throughout the dissertation, from the overall way the project is organized to the (re)construction of the specific arguments considered. I am forever grateful to him for his intellectual support, but even more so for his personal support, friendship, and spirited commitment to Valhalla. I look forward to many reunions in the future (and will hope that some include taking in a winning effort from the Owls baseball team!). Tris Engelhardt served admirably as my second committee member from the Department of Philosophy. I am forever in debt to Tris, who gave me the privilege and honor of working with him in managing the Journal of Medicine and Philosophy for most of my graduate career at Rice. This "second education" (also known as voluntary slavery) has been invaluable in my philosophical and personal development, not least in filling out my knowledge of and appreciation for Texas history and single malt Scotch. Tris is surely one of the most demanding mentors in academia, but I doubt whether many are more generous in attending to the comprehensive education of their students. Long live La Cosa Nostra! Alastair Norcross began with the project while still teaching at Rice and graciously agreed to remain with it after departing for higher altitude in Colorado. I have IV learned much from Alastair who never ceases to impress me with his sharp wit and keen analytic mind. Perhaps even more impressive than these rare gifts is his generous and loyal spirit (consequentialists can learn much about virtue from this man!). Alastair never hesitated to save my meager graduate stipend by allowing me to stay with him at the many conferences we attended together. Moreover, he has always made me feel welcome within his circle of (intellectually impressive) friends and never suggested through word or action that I as a graduate student didn't belong or counted for less. His support and friendship have meant so much since we began together at Rice in the fall of 2002. Here's to many more Norcross cocktail parties! Rachel Zuckert also began with the project while at Rice and (much to its improvement) remained with it after moving to Northwestern. Her extensive and rigorous feedback on chapters was exemplary, always demonstrating a keen attention to detail and ability to see what was most important, and always including wise suggestions for improvement with which I almost invariably agreed after careful thought. Rachel could always be counted upon for very humane insights about academia, graduate school, and the dissertation writing process and her support, encouragement, and reassurances were always helpful and uplifting. And all of this in a year when she herself was in the throes of a (successful!) effort at winning tenure -1 am forever grateful for her investments in me and my project. Finally, I am grateful to David Schneider from the Department of Psychology for serving as my external committee member. David was thoroughly dependable, even as I was careening toward the finish, and contributed insightful remarks at my defense. V I also want to thank the Department of Philosophy at Rice for its support and collegiality. I gained much from the other professors with whom I studied and interacted (including Baruch Brody, Richard Grandy, Mark Kulstad, Donald Morrison, and Hanoch Sheinman) and especially want to recognize the support and encouragement of Steve Crowell who served as Department Chair throughout my graduate career. Rice has provided a great atmosphere for philosophy and never for a day have I regretted my decision to study here. Much of that has to do not just with the outstanding faculty at Rice, but also with the many Mends I have made in my six years in Houston. Here I want to note especially my good friends, Garret Merriam and Phil Robichaud. I have been very fortunate to find two friends with such close personal and intellectual interests. Many of my fondest memories from graduate school have been shared in their company. Each also left his mark on my work, as we took turns reading and commenting upon each other's writing throughout our careers at Rice. I am very grateful to them for this, but so much more so for their friendships that have contributed much to my life. I would be remiss if I did not acknowledge the person responsible for getting me into philosophy in the first place - Kenneth Cust, my undergraduate mentor from the University of Central Missouri. Kenn was exceptional at employing the Socratic method in class discussion and it was his powerful challenges to my beliefs at the time that hooked my interest. He has stood by me throughout the years of graduate school and has provided support, encouragement, and much valued friendship in the process. It is for my family that I reserve my final thanks. To my parents, Larry and Peggy, I extend my sincere gratitude, both for always encouraging me to pursue my -y VI dreams and for standing by me even when this took me into the strange world of academic philosophy. To my children, Mary and Thomas, I am so thankful for both of you. Though you are still too young to know it, you have provided me with much motivation to work hard and do my best. I look forward to supporting both of you in pursuing your dreams. Finally, to my wife, Leslie, I do not know where to begin in thanking you. You have given so much of yourself to this project directly, reading every page (many times!) and making many suggestions that clearly improved the final draft. You have sacrificed so much to make its successful completion possible. Without you, I am not sure I could have pulled it off. But of course it was your indirect support that was even more meaningful and valuable. You have laughed with me and cried with me and stood beside me through everything. You are my best friend and my trusted companion. I love you and I look forward to many happy years together.