What History Tells Us About Remaking Marriage

Prof. Nancy Cott is Professor of American History at Harvard, and author of Public Vows: A History of Marriage and the Nation. She also prepared a report that introduced into evidence in the trial over the unconstitutionality of Proposition 8 in California. An more in-depth version of Cott's remarks can be read here. Some high points include:

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.

Read the full article here.

The Evolving Freedom to Marry

Prof. Stephanie Coontz has written some important material about the evolution of marriage and the increasing demand for marriage equality. And, when she talks about marriage she is great. I can't recommend her when she speaks about classical liberalism, however. On that topic she doesn't seem to know what she is talking about and contradicts herself—for instance she damns certain periods of history as being classically liberal and says that is responsible for all the bad things that happened, yet she later speaks of how much state control there was during those same periods. But, on marriage she is good.

Here are some excerpts from a piece she wrote for the Washington Post.

For millennia, marriage was about property and power rather than love. Parents arranged their children's unions to expand the family labor force, gain well-connected in-laws and seal business deals. Sometimes, to consolidate inheritances, parents prevented their younger children from marrying at all. For many people, marriage was an unavoidable duty. For others, it was a privilege, not a right. Often, servants, slaves and paupers were forbidden to wed.

But a little more than two centuries ago, people began to believe that they had a right to choose their partners on the basis of love rather than having their marriages arranged to suit the interests of parents or the state.

Love, not money, became the main reason for getting married, and more liberal divorce laws logically followed. After all, people reasoned, if love is gone, why persist in the marriage? Divorce rates rose steadily from the 1850s through the 1950s, long before the surge that initially accompanied the broad entry of women into the workforce.

Coontz writes that freedom of choice in partners was a critical step in the evolution of marriage. Parental permission was no longer required. And people could pick partners on the basis of their love for one another, not because of concerns about property, wealth distribution, or politics, as was often the case in the past. But with this changes came another change, women started demanding equality of rights in the relationship. They were not simply there to assistance men achieve whatever they wanted. A couple now worked together to achieve mutual goals with neither being subservient to the other.

The laws changed to accept these demands for equality of rights within the marriage relationship. No longer did legislation restrict the role of women, or require them to have male permission in areas such as work, having children, property or divorce. But this change, with the others, set into motion the modern movement for marriage equality.

Gender neutrality has made many marriages fairer and more fulfilling than ever before, which has in turn been a big factor in the falling divorce rates and steep decline in marital domestic violence over the past 30 years. And spouses who share an egalitarian viewpoint report above-average levels of marital happiness, according to researchers.

The spread of gender-neutral attitudes about heterosexual marriage has also undercut support for limiting marriage to a man and a woman. Although well-financed campaigns against same-sex marriage still generate victories on Election Day, hard-core opposition has steadily eroded. In October, the Pew Research Center reported that for the first time in its 15 years of polling, less than half the public opposed same-sex marriage. That poll also found that 42 percent actively supported it - still less than a majority, but a new high. Two other national polls have found that a small majority of Americans endorse same-sex marriage.

Support for same-sex marriage is already higher than support for interracial marriage was in 1970, three years after the Supreme Court struck down anti-miscegenation laws. And since young adults ages 18 to 29 are the group most supportive of same-sex marriage, it is largely a matter of when, rather than if, a majority of Americans will endorse this extension of marriage rights.

Opponents of gay marriage argue that this trend will lead to the destruction of traditional marriage. But, for better and for worse, traditional marriage has already been destroyed, and the process began long before anyone even dreamed of legalizing same-sex marriage.

People now decide for themselves who and when - and whether - to marry. When they do wed, they decide for themselves whether to have children and how to divide household tasks. If they cannot agree, they are free to leave the marriage.

If gay marriage is legally recognized in this country, it will have little impact on the institution of marriage. In fact, the growing acceptance of same-sex marriage - an indication that it's not just the president's views that are "evolving" - is a symptom, rather than a cause, of the profound revolutions in marriage that have already taken place.

The entire article can be read here. The important point for those of you who share Hayek's views on the evolution of society, is that gay marriage is not revolutionary, it is evolutionary

All in the Gay Family by Jesse Walker

The following is reprinted from the Reason Foundation.

"I can't go that far; that's the year 2000! Negroes [and whites], okay. But that's too far!"
—President Richard Nixon on gay marriage, speaking in August 1970; quoted in John Ehrlichman, Witness to Power

No one knows the names of the first gay couple to exchange wedding vows. You should keep that in mind as same-sex marriage becomes law in New York: The earliest milestones on the road to marital equality were made quietly, privately, and far from any civil authority. The public recognition of gay unions emerged gradually, reaching wider and wider circles until finally even governments started climbing aboard. Contrary to the rhetoric you still hear from some of the idea's opponents, gay marriage was not cooked up in some D.C. laboratory and imposed on America by social engineers. It was built from the bottom up, and it was alive at a time when the typical social engineer thought homosexuality was a disease.

Members of the same gender have been coupling off for centuries, sometimes with ceremonies that look rather marital to modern eyes. Here in America, gay marriages predate the modern gay rights movement. Six years before Stonewall, the 1963 book The Homosexual and his Society described informal gay weddings where "all the formalities of [a] legally certified and religiously sanctioned ceremony are aped with the greatest of care." Those unions didn't always last (the authors noted that it "sometimes takes no more than a week or two" before the lovers "recall that their marriage has no legal, religious, or moral sanctions" and take off), but as the resilience of the euphemism longtime companion suggests, a match between two men or two women could be as lasting and loving as any heterosexual coupling. As gay life became more visible, so did those permanent partnerships, and as social tolerance of homosexuality grew, more people accepted the partners' marriages as real. In 1992, long before any state recognized gay marriage as a legal right, Suzanne Sherman could fill a big chunk of a book by interviewing gays who had married and officiants who had blessed their unions. Such marriages were eventually honored by institutions outside as well as inside the gay community. By 1993, the list of companies that allowed domestic partners of the same sex to share benefits included Microsoft, Apple, HBO, Warner Bros., and Borders. By 2007, gay couples who wanted to get married at Disneyland were free to purchase the Fairy Tale Wedding package.

The numbers on public support for gay wedlock show a slow but steady surge of support for the idea. A decade and a half ago, according to Gallup, just 27 percent of Americans thought gay marriage should be legally recognized. This year the figure was 53 percent. It is often suggested that this sea change reflects the fact that more Americans know people who are openly gay. While I don't doubt that that's a major factor, I think another change is important too: More Americans know people who are openly gay and married. If you mentioned gay marriage to the average American three decades ago, he would have thought you were making a joke or spouting a science-fiction scenario. (Indeed, three decades ago the science-fiction comedy Airplane! 2 included an apparently married gay couple as a throwaway gag.) Today gays living as married are a part of everyday life, whether or not those unions have been licensed by the state. If you're an American, there's a reasonable chance that you've met a committed, cohabiting gay couple, and whether you like the duo or not it should be hard to see them as a threat to the sanctity of marriage. After all, they want to get married. That isn't necessarily true of the cohabiting straights who live next door. The gay couple may even want to have kids—and with restrictions on gay adoption falling away, that option is ever more possible.

And so a social institution took hold: first among gays themselves, then in the larger community and marketplace. Finally the government took notice. Judges started upholding gays' right to wed each other, then legislatures began to come around. In many places the foes of gay marriage have pushed back through ballot initiatives, a path that isn't open to them in New York. But even where a public referendum is possible, it's probably just a matter of time in most states before the votes against same-sex marriage just won't be there. As Jeffrey Lax and Justin Phillips recently pointed out in the American Political Science Review, it's the youngest American adults who show the strongest support for gay marriage. The strongest opposition is in the demographic that will be next to die off.

So I give credit to the legislature of New York, which just made life easier for gay couples who want to adopt a standard marriage contract. But even more than that, I give credit to the couples themselves, and to all the couples who came before them. They're the ones who started this revolution rolling.

Jesse Walker is managing editor of Reason magazine. This column first appeared at Reason.com.

Note: Mr. Walker makes an important point, marriage has been evolving. And while Walker's piece covers recent history the reality is that marriage today is vastly different than it was 100 years ago, which was vastly different from what it was 500 years ago, etc. Anyone who claims that marriage "has always" been (fill in the blank) is only exhibiting their own ignorance about the evolution of marriage. Anyone who tells you that marriage "belongs" to religion is equally ignorant. Marriage has filled different functions at different times. Often it was about politics, often it was about property, or production of goods, but the concept of two people loving one another and marrying because of that love is relatively new. Historically marriage was heavily regulated and controlled by the "community" if not the church. And, contrary to the assumptions of uniformed individuals, marriage today is less regulated. Oddly, state licensing of marriage gave couples more freedom, not less.