Marriage as? A Reply to Marriage as Punishment

Brenda Cossman*

Response to: Melissa Murray, Marriage as Punishment, 112 Colum. L. Rev. 1 (2012)

In Marriage as Punishment, Professor Melissa Murray reads marriage against its more mainstream grain:¹ Rather than classifying marriage as a public and/or private good, Murray uses the history of the law of seduction to reveal a darker side of marriage. Through a careful reading of this history, she illustrates some of the ways in which marriage intersected with criminal law, and as her title suggests, served as a form of punishment. It is a fascinating study of one of the many ways that law channeled sex into marriage—through the specificity of nineteenth-century seduction laws—producing marriage as the only site of approved sexual activity.

Professor Murray then shifts her analysis to more contemporary legal discourses of marriage, which she approaches through the lens of marriage-as-punishment. She begins by revisiting familiar jurisprudential terrain: Skinner,² Zablocki,³ and Turner.⁴ But in each, she finds a darker side of marriage, a subtext of marriage as a form of disciplinary governance, particularly in relation to appropriate sexual norms and behavior. Murray then alights on Lawrence⁵ and the ensuing debates around same-sex marriage, arguing again that marriage may not—or may not only—be the public and private good that it is cracked up to be, but rather a site of sexual discipline and governance shaping good sexual citizenship.⁶

Marriage as Punishment is yet another illustration of the intersections of criminal and family law, a theme central to Professor Murray’s scholarship.⁷ The piece demonstrates and deconstructs the artificial dichotomies created by law’s disciplinary boundaries: public/private, criminal/family, and status/contract. Professor Murray instead reveals the ways in which different forms of regulation have shaped the intimate sphere and the contours of appropriate sexual citizenship. Marriage as Punishment is consistent with an emerging body of scholarship seeking to strike at the heart of family law’s claim to exceptionalism and reveal the multiple and overlapping forms of regulation that constitute marriage, family, and the intimate sphere.⁸

In this Response, I explore the ways in which Murray has framed marriage as punishment, but also as discipline, as governance, and as state sexual regulation. I first contrast the governance and disciplinary role of marriage against Murray’s marriage-as-punishment lens and then critically engage with Murray’s take on marriage-as-comprehensive-sexual-regulation.

I. Marriage as Governance?

While the marriage-as-punishment lens is compelling in the history of seduction, its connection to more contemporary legal developments is less than seamless. The analysis of contemporary legal discourses on marriage—Skinner, Zalbocki, Turner, and the same-sex marriage debates following on the heels of Lawrence—is less about marriage-as-punishment and more about marriage-as-governance. Indeed, I would suggest that it is in fact the idea of marriage-as-governance that better unites the first and second parts of Professor Murray’s Article, although it admittedly would have provided a less catchy title. At the same time, I suggest some potential directions for using “marriage-as-punishment” in analyzing at least some contemporary legal discourses on marriage.

A. Marriage as Discipline?

Consistent with this notion of marriage-as-governance, there are ways in which the Article comes perilously close to conflating punishment with discipline. Professor Murray locates the law of seduction and the idea of marriage-as-punishment in the context of a shifting understanding of punishment in the nineteenth century. Drawing heavily on the work of Foucault, she sketches the emerging understanding of punishment as the inculcation of self-discipline.⁹ It is perhaps here that the subtle slippage occurs.

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