Alone Together: Law and the Meanings of Marriage.

• Author: Cahn, Naomi
• Position: Review

ALONE TOGETHER: LAW AND THE MEANINGS OF MARRIAGE. By Milton C. Regan, Jr. New York: Oxford University Press. 1999. Pp. x, 279. $45.

In a recent book (not the subject of this Review), highly successful and popular authors John Gottman and Nan Silver set out their seven effective principles for making a marriage last. The final suggestion is that spouses should "create shared meaning, an inner life together that is rich with symbols and family rituals and that honors the hopes of both partners."(1) In a happy marriage, the couples not only provide support for each other, but also "build a sense of purpose into their lives together."(2) Professor Gottman has developed these principles as a result of twenty years of research and observation of happily and unhappily married couples. Based on the interaction between couples in his Love Lab, he can predict, with over 90% accuracy, which couples will stay together and which will divorce.(3)

In Alone Together: Law and the Meanings of Marriage, Professor Milton Regan(4) also examines the state of contemporary American marriage, and he too argues for recognizing the importance of shared meaning between the partners (p. 5), and commitment to the marriage as an entity rather than simply to the individual lives of the spouses. He bases his prescription for the institution of marriage on an examination of three different issues: first, the accuracy of the law and economics approach to marriage; second, the continuing validity of the spousal evidentiary privileges; and third, the division of property between spouses upon divorce. Like Gottman and Silver, Regan is concerned about contemporary marriage. Unlike Gottman and Silver, however, Regan focuses on the cultural institution and societal meanings of marriage rather than on the meaning of marriage to any particular couple.

Professor Regan is an extremely thoughtful scholar of the family and of marriage. In a previous book, he argued for a reinvigoration of status-based responsibilities in family law in order to foster greater intimacy between family members.(5) Alone Together continues the argument, placing it in the context of political conversations about the relationship between self and community.

Marriage clearly requires the individual spouses to balance their own identities with their identity as a couple,(6) and it thus simultaneously implicates issues of interconnection and individual fairness. Alone Together identifies two different stances in marriage that implicate both individual spouse and marital entity: an external stance, which is identified with the individual's benefit, and an internal stance, which is identified with the community. By clearly articulating these tensions within marriage, Regan offers an extremely useful perspective on marriage. Indeed, the strength of this book is in its persuasive descriptions of the critical nature of both care and justice within marriage, and the difficulty of balancing them.

The question that remains after reading this extremely thought-provoking book is: why marriage?(7) If anyone can defend the institution, then this select company includes Regan.(8) There have been many other defenders of marriage as an institution who argue, from a conservative slant, that it will lift women out of poverty, provide fathers for children, reweave the moral fabric of America, and, in general, save our society.(9) Regan, being far more measured and thoughtful, eloquently defends marriage on behalf of married people rather than as the solution to all of society's alleged ills.

In this Review, I will first discuss Professor Regan's observations on marriage. In the second Part, I will question the utility of marriage itself: why not allow adults to choose their own means of commitment to each other and/or to others? Regardless of what is happening to the state of contemporary marriage, adults are committed to the family as a functional institution, rather than to particular rigid forms.

Next, I will question the applicability of Regan's conclusions to women, poor people, and nonwhite people. For example, in Regan's critique of the economic approach to marriage, he does not mention the special problems of poor people for whom a law and economics approach provides little explanatory power. Indeed, there are a series of special issues concerning marriage that these groups confront.

The two different stances on marriage that Regan articulates are critical to an understanding and appreciation of marriage and its role in society. Regan has made an accurate diagnosis that both stances reflect important moments in marriage, but that there may be some unavoidable tensions between them. In his analysis of the law and economics approach, spousal privilege, and divorce financial awards, he suggests that an external stance neglects important aspects that are indeed captured through the internal stance. Accordingly, perhaps our culture should focus more on the marital relationship than on the rights of each individual spouse. But I believe it is necessary to look deeper. Within each marriage, gendered expectations affect which spouse is relationally-focused and which spouse is fairness-focused, and thus the individuals within each relationship should acknowledge the insights of both stances and seek a more equitable "internal" balance.

1. THE BOOK

   Before turning to the book, I want to discuss briefly the state of contemporary American marriage. Marriage has become, indeed, has always been, a crucible for examining and solving all of society's problems. The movement toward covenant marriage in Louisiana and many other states is symbolic of a perceived decline in commitment to marriage continuity, and of attempts to preserve the besieged institution of marriage.(10) There is also much hand-wringing over the perceived decline in commitment to marriage itself, given the number of cohabitating couples. Many scholars have suggested that the increase in the divorce rate over the past three decades indicates that the public views contemporary marriage as nothing more than a contract for self-fulfillment.(11) As a result of an increasing societal emphasis on personal psychological happiness, they believe that the focus in marriage is no longer on others, but on the individual's own self-fulfillment.(12) The new ideology of families celebrates, in the words of one critic, the "Love Family,"(13) which is based on choice and voluntary affiliation with another adult rather than on the commitment traditionally associated with marriage. Instead of living within an ethic that celebrates relationships and obligations to others, the new ethic celebrates obligations only to oneself. Vulnerability and dependence (and marriage itself) are useful, according to this critique, only when they further individual happiness. For example, while many parents used to believe it was important to stay together for the children, this is no longer true.(14) One recent report summarized these contemporary concerns about marriage:

   The popular culture strongly reinforces th[e] sense of pessimism, even doom about the chances for marital success.... Marriage is losing much of its status and authority as a social institution.... For most Americans, marriage is a `couples relationship' desired primarily to meet the sexual and emotional needs of the spouses.... People tend to be puzzled or put off by the idea that marriage has purposes or benefits that extend beyond fulfilling individual adult needs for intimacy and satisfaction.(15) Within the law, the shift toward individual fulfillment and away from state control is seen in the concern over privatization. The argument is that there has been a shift from state intervention and state-imposed norms toward more private decisionmaking.(16) Professor Jana Singer carefully points out the many areas in which private contracting has replaced more public ordering, ranging from premarital contracting to adoption.(17) In addition, she suggests that the distinction between marital status and nonmarital status is diminishing.(18)

   Notwithstanding all of this hand-wringing about the declining importance of marriage, the marriage rate today is comparable to the marriage rate in the late nineteenth century.(19) While the marriage rate peaked for those born during the 1920s and 1930s, and has been declining since, the institution of marriage is not disappearing.(20) Even when people leave first marriages, they overwhelmingly return to the institution by remarrying. Indeed, as an example of the appeal of marriage, consider the efforts of gay activists to make marriage available to same-sex partners.(21) Broadening access to marriage is an attempt to reinforce the importance of marriage, rather than an attempt to undermine it.(22)

   Marriage has always served state interests, regardless of the individual economic and social interests of spouses. Underlying its language of companionship, marriage is a public status that historically has been regulated publicly to serve the purposes of the state.(23) It is, then, simultaneously an intensely private relationship and an extremely public status that has been manipulated to support prevailing public images of morality and social order. For example, Professor Nancy Cott shows how the federal government manipulated notions of citizenship during the nineteenth century based on a woman's marital status in order to form and reinforce appropriate gender roles.(24) Thus, in 1855, Congress enacted a statute providing that a woman who married a male citizen of the United States herself became a citizen, without making any provision for marriage to a female citizen; Cott argues that this "underline[s] customary male headship of the marital couple as a civic and political norm."(25) Judges in the nineteenth century refused to allow spouses to divorce each other except upon a finding of fault; even when judges were granted enormous discretion to allow a divorce...