In 1988, Carole Pateman discussed the strange misalignment between modern contract theory, as conceived by John Locke and others, and the special case of the marriage contract: “unlike other contracts, the marriage contract cannot be entered into by any two (or more) sane adults, but is restricted to two parties, one of whom must be a man and the other a woman” (167). One would think that in a true contract society, this restriction on marriage contracts would be a contradiction because the status of the two parties should not be a factor. But for Pateman, there is no contradiction but instead a misunderstanding of contract: the “attack on sexual difference [by those advocating for individual equality] . . . suffers from an insuperable problem: the ‘individual’ is a patriarchal category” (168)
Her argument was that the sex-designation of the marriage contract has not resulted from the failure to overcome this last remnant of status difference (as others have argued), but rather has deeper roots. While Locke “remarked that marital society established through the marriage contract, ‘consists chiefly in the spouses’ ‘Communion and Right in one another Bodies,’” Pateman argues that it is actually based on “male sex-right” rather than an agreement for mutual access. Locke, she argues, did not advocate an egalitarian contractarianism over a Filmerian patriarchy, but rather located political authority in one sphere and domestic authority in another. Thus, “Locke agrees with Filmer that there is a natural foundation for a wife’s subjection.” The original husband in Locke “must have exercised conjugal right over his wife before he became a father” (93) and was able to exercise political authority. So Locke, Pateman argues, assumes that the the non-political authority of the male in the natural (“non-political”) sphere comes first and is not negotiated (or negotiable—no matter what goes on between Mirabell and Millamant).
The husband’s dominance is instead founded on the assumption of male sex-right. This is the hidden contract behind the contract; it is the reason why the marriage contract can, contradictorily and unlike in any other contract, designate in advance the sex of each party. The sex-designation of marriage reveals for Pateman not so much the limits of contract theory, but the patriarchal assumption behind the very category of the individual. The individual of “individualism” is a Lockean, political subject who has already exerted natural (non-political) rights over a woman to place him in the public sphere as the representative of a family.
Maybe it’s way too early to say “until now.” But what does it mean for the sexual contract that a US President can defend marriage equality? Many will say that this is not a feminist issue or a contract theory issue at all, but rather an issue of the relative authority of religion. But the way religion makes its way into policy has always been highly selective. Dante placed sodomites and usurers in the same circle of hell (number 7!).
I have yet to meet a Christian who eschews usury out of conscience or fear of hell, nor can I think of a government policy designed to eradicate it. On the contrary, it seems to be encouraged.
At its most radical, Pateman’s Sexual Contract suggests that individualism and contractarianism do not represent progress; on the contrary, they are impediments to feminism because they are designed to assume a particular, hidden hierarchy. The category of the “individual” will never include everyone, and the best evidence for this was the (contradictory) sex-designation of the marriage contract.
What does Obama’s declaration do to this argument? Does it suggest that the category of the “individual” is expandable after all? Was “male sex-right” actually a residual hold-over, as the theorists to whom Pateman objected had claimed, rather than an inherent aspect of contract?
Liberals argue that gay marriage does not change the definition of marriage. But if Pateman offers any insight into Locke and early concepts of individualism, then gay marriage does redefine the marriage contract. And maybe that’s the best part.
Carole Pateman, The Sexual Contract. Stanford: Stanford University Press, 1988.