Murray on Marriage as Punishment

Professor Melissa Murray (Berkeley) has published Marriage as Punishment in the forthcoming pages of the Columbia Law Review, a paper which aims to show a number of things.  First, it describes how marriage was used historically not only as a kind of escape valve for the crime of seduction but also as a "punishment" for that crime.  Second, it takes very seriously the metaphor of "the old ball and chain" to show how "marriage figured prominently in the operation of the criminal justice system."  Third, it wishes to resuscitate what it claims to be an older view of marriage as something more than the "unvarnished good" which, it again claims, it is described as today by those seeking same-sex marriage rights.  Fourth, it injects a caution about the way in which same-sex marriage proponents make their claims about the good of marriage.  Marriage is a discipline, the author claims -- a discipline at times enforced by the state -- and as such it is in many ways inimical to achieving full "liberty and autonomy for sex, whether in marriage or not."  (107)  What we really need if we are after "greater sexual liberty" is to be skeptical of the "disciplinary force" of marriage (no less than of criminal sanction) -- in order to create "a place for sex and sexuality beyond the disciplinary domains of the state."  (107-108)  I wish Philip Rieff were still with us to offer his thoughts.