If we apply this underlying assumption to marriage, it gets really interesting! If we assume that a power imbalance that enables the violence is created by the institution, there must be a power imbalance within marriage. Clearly there is: Men have (generally speaking) power over women. If we then take the next analogous step, we get to this conclusion: Marriage as an institution creates though the intimate access clause the power imbalance between men and women that leads, at least in some cases, to the violent abuse of women within marriage. That is, marriage is an essential component of patriarchy. I am not sure if I am putting words into Card’s mouth here but this seems to be her underlying claim. To me it raises at least one question: If we abolish marriage, would patriarchy also go away?
In her 2007 essay “Gay Divorce: Thoughts on the Legal Regulation of Marriage,” Claudia Card argues that marriage is an evil institution. An evil institution consists of two foreseeable and causally linked components: “Culpable wrongdoing and intolerable harm” (30). Marriage, according to Card, meets these criteria. Spouses – predominantly women – are exposed to intolerable harm, including death, through domestic violence. The emergence of such violence was foreseeable and it is tied to the institution of marriage that the threat of violence can only be mitigate by abolishing the institution. And, finally, there are people who have the power to do just that (31). Card refers the reader to her 2002 book The Atrocity paradigm: A Theory of Evil for more information. Since I don’t have the book, I will leverage her analogy to slavery to extricate some underlying assumptions to Card’s argument. Slavery, too, is an evil institution. Slaves are exposed to violence, which is foreseeable and causally linked to the existence of the institution. But what exactly constitutes the link? Surely with laws against such violence it should be preventable, thus the abolishment of the institution should not be a requirement to the end of violence within the institution. But, at least according to Card, laws do not prevent the violence. So there must be something inherent in the institution that overrides the law, at least in the minds of the violent perpetrators. I suggest that this something is a power imbalance: Slave owners have power over slaves. This power is inherent in the institution and cannot be legalized away except with the abolishment of slavery itself. Slavery without this power imbalance would be absurd.