Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage by Nicola Barker (review)

Literature on same-sex marriage has proliferated over the past several years, offering a variety of perspectives ranging from those linking the achievement of equality of lesbians and gay men to marriage rights, to suggestions that marriage itself will be transformed by the inclusion of same-sex partners, to arguments that same-sex marriage offers far too limited a vision of equality.¹ In this crowded field, Not the Marrying Kind, a new book from UK legal scholar Nicola Barker, is now the “go-to” book for those who seek a feminist, critical, and sustained analysis of the push for recognition of same-sex partnerships through legalized same-sex marriage.²

Barker draws on a huge range of literatures—feminist, queer, and otherwise—to develop her own critique of the emphasis that so many advocates place on the importance of marriage rights to the equality of lesbians and gay men. Her bibliography alone is worth consulting for those interested in feminist theory, the institution of marriage, or same-sex partnerships. In a rare move for a young legal scholar working in what some regard as a “post-feminist” time, she goes back to “second-wave” feminist scholarship, including both radical and socialist feminist work, in order to ground her argument and critique of what she calls “the marriage model” and its structure, ideological premises, and legal consequences.

After carefully reviewing various arguments in favour of same-sex marriage, Barker revisits the second-wave feminist critiques of marriage in order to assess whether same-sex marriage might, as many argue, transform the institution of marriage by shifting it from its patriarchal roots and rendering it more egalitarian. In this way, Barker thus contributes to theoretical understandings of feminism and social change before she links strands of feminist and queer theories to show that, together, second-wave feminist and queer theories provide a stronger critique of same-sex marriage and of the marriage model than does second-wave feminism alone. She also points out the flaws with the notion of time-limited “waves” of feminist thought, suggesting the need for a more fluid approach to feminist theory. This refreshing antidote to our tendency to discard earlier approaches as flawed and therefore of no use is also an unabashedly feminist approach to same-sex marriage and the question of how best to address the subordination of lesbians and gay men.

A further attraction is the international reach of Barker’s book. Unlike many treatments of same-sex marriage or partnerships, which tend to focus on one jurisdiction such as Canada or the United States, Barker invokes literatures from a variety of jurisdictions. She thus provides a broader view than many interventions on same-sex marriage that focus, say, on the United States to the exclusion of other important legal developments. Moreover, she reviews and engages with the spectrum of discourses arguing in favour of same-sex marriage, from conservative notions that marriage would “civilize” gays and strengthen marriage to Cheshire Calhoun’s view that lesbian politics should prioritize access to marriage because of the centrality to lesbian oppression of exclusion from the family.³

The book’s international reach has another aspect beyond its engagement with literature from a variety of countries. In Chapter 2, Barker analyzes in some detail the different models (for example, domestic partnerships, civil unions, de facto relationships) through which various jurisdictions have dealt with the recognition of same-sex relationships, including Australia, Denmark, England, France, and the United States. She suggests that these models have much commonality with the marriage model and many of its attendant problems. Some models, though, depart from marriage in significant ways. For instance, the “pacte civil de solidarité” in France allows parties to set their own contractual terms, and the de facto model in Australia moves beyond conjugality to offer some focus on care relationships. In Chapter 3, Barker also reviews litigation strategies and results in the struggles for marriage rights in...