Seventeenth-century English colonists in North America created marriage laws almost immediately upon settling. In England the established Anglican Church ruled marriages, but rather than replicate that arrangement or treat marriage as a sacrament (as Catholics do), colonial legislators asserted that marriage was a “civil thing” because it dealt with matters of property. Although the great majority of colonists believed in the basic tenets of Christian monogamy, colonial legislators explicitly rejected religious authority over marriage. Thus even before the American Revolution, marriage was deemed a civil institution, regulated by government to promote the common good.
After the founding of the United States, state after state maintained this principle. State laws allowed religious authorities to perform marriage ceremonies and to recognize only marriages adhering to the requirements of their own faith, but not to determine which marriages would be considered valid by the public. For example, California’s first state Constitution stipulated, “No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect,” a provision now retained in the state’s Family Code. To be sure, many people, then as now, invested marriage with religious significance, but that had no bearing on any marriage’s legality.
...When the United States was established on republican principles, marital households continued to serve a governance function, but in a manner that reflected the novel style of the U.S. government. Sovereignty in the United States was understood to be based on the voluntary consent of the governed. Likewise with marriage—the male-led marital household was legitimized by consent.
Parallels between the voluntary consent joining a husband and wife in marriage and the voluntary allegiance of citizens to the new United States were common in Revolutionary-era rhetoric. The statesman and legal philosopher James Wilson saw mutual consent as the hallmark of marriage, more basic even than cohabitation. In a series of lectures delivered in 1792, he argued, “The agreement of the parties, the essence of every rational contract, is indispensably required.”
Because free consent—the mark of a free person—was at the core of the matrimonial contract, slaves could not enter into valid marriages. Considered property by law, slaves lacked basic civil rights, including the essential capacity to consent. Furthermore, marriage obliged those undertaking it to fulfill certain duties defined by the state, and a slave’s prior and overriding obligation of service to the master made carrying out the duties of marriage impossible.
Where slaveholders permitted, slave couples often wed informally, creating family units of consoling value to themselves. But slaveholders could break up those unions with impunity. Slave marriages received no defense from state governments.
After emancipation, former slaves flocked to get married legally. As free persons, African Americans saw marriage as an expression of rights long denied them and a recognition of their capacity to consent lawfully. The Freedmen’s Bureau, in charge of the transition of former slaves to citizenship in the occupied South after the Civil War, avidly fostered marriages among the freed people and welcomed the creation of male-headed households among the African American population.
...Race-based differentiation in marriage laws originated in the American colonies in the late seventeenth century. Most often, these laws banned and/or criminalized marriages between whites and “negroes or mulattoes” but also sometimes extended to native Americans. The bans continued after the founding of the United States.
After the Civil War and emancipation, even more states voided or criminalized marriage between whites and blacks or mulattos, and in response to immigration from Asia, a number of western states expanded the prohibition to Indians, Chinese, and “Mongolians.” As many as 41 states and territories for some period of their history banned, nullified, or criminalized marriages across the color line. These laws, too, were justified in their time by their supposed naturalness.
The prohibitions were challenged after the passage of the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment, but late nineteenth–century courts usually defended the laws by claiming that there was no discrimination involved: whites and persons of color were equally forbidden from marrying each other. No one was excluded from marriage; individuals were merely equally, so it was said, constrained in the choice of marital partner. Of course, the judicial defense of “symmetry” obscured the actual and symbolic force of such laws in a racially stratified society.
...Many features of contemporary marriage that we take for granted were fiercely resisted at first. Yet they did eventually win out. Three of the most important such features have been in the areas of spouses’ respective roles and rights, racial restrictions, and divorce.
Spousal roles and rights. Although gender parity between spouses would have been unthinkable at the founding of the United States, marriage laws have moved over time in this direction. In Anglo-American common law, marriage was based on the legal fiction that the married couple was a single entity, with the husband serving as its sole legal, economic, and political representative. Under this doctrine, known as coverture, the wife’s identity merged into her husband’s. She had no separate legal existence. A married woman could not own or dispose of property, earn money, have a debt, sue or be sued, or enter into an enforceable agreement under her own name. The spouses were assigned opposite economic roles understood as complementary: the husband was bound to support and protect the wife, and the wife owed her service and labor to her husband.
...In 1948 the Supreme Court of California, in Perez v. Sharp, became the first state high court to declare race-based restrictions on marriages unconstitutional. At that time bans on interracial marriages were on the books in 30 states. The California high court held that legislation addressing the right to marry “must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.” Over the next two decades, more than a dozen states eliminated their own race-based marriage laws.
In 1967 the U.S. Supreme Court held unanimously for the plaintiffs in Loving v. Virginia, striking down the Virginia law that made marriage between a white and a non-white person a felony. The Court thereby eliminated three centuries of race-based marriage legislation. Chief Justice Earl Warren’s opinion called such laws “measures designed to maintain White Supremacy,” which were insupportable in view of the Fourteenth Amendment’s guarantee of equal protection of the laws.
The Court’s opinion in Loving reiterated that marriage was a “fundamental freedom,” and affirmed that freedom of choice of one’s partner is basic to each person’s civil right to marry. Today virtually no one in the United States questions the legal right of individuals to choose a marriage partner without regard to race.
...Marriage has evolved into a civil institution through which the state formally recognizes and ennobles individuals’ choices to enter into long-term, committed, intimate relationships and to build households based on mutual support. With the free choice of the two parties and their continuing consent as foundations, marriage laws treat both spouses in a gender-neutral fashion, without regard to gender-role stereotypes.
At least, most of the time. Except in Massachusetts, Iowa, Vermont, New Hampshire, Connecticut, and Washington, D.C., men may only marry women, and women may only marry men. This requirement is an exception to the gender-neutral approach of contemporary marriage law and to the long-term trend toward legal equality in spouses’ marital roles.
Those who would maintain this exception argue that the extension of marital rights to same-sex couples would render marriage meaningless. They say that the sexual union of a man and a woman, capable of producing children, is essential to marriage and is its centerpiece.
The history of marriage laws tells a more complex story. The ability of married partners to procreate has never been required to make a marriage legal or valid, nor have unwillingness or inability to have children been grounds for divorce.
And marriage, as I have argued, has not been one unchanging institution over time. Features of marriage that once seemed essential and indispensable proved otherwise. The ending of coverture, the elimination of racial barriers to choice of partner, the expansion of grounds for divorce—though fiercely resisted by many when first introduced—have strengthened marriage rather than undermining it. The adaptability of marriage has preserved it.
Marriage persists as simultaneously a public institution closely tied to the public good and a private relationship that serves and protects the two people who enter into it. That it remains a vital and relevant institution testifies to the law’s ability to recognize the need for change, rather than adhere rigidly to values or practices of earlier times.
Enabling couples of the same sex to gain equal marriage rights would be consistent with the historical trend toward broadening access. It would make clearer that the right to marry represents a profound exercise of the individual liberty central to the American polity.
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