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What Gay Marriage Teaches About the History of Marriage

Four years ago I published a book in which the long legal history of marriage was structured around a discontinuity. The premise was that the marital ways characteristic of the nineteenth- and early twentieth- century United States belonged to an irretrieveable past.

In the past few years, however, as issues relating to same-sex marriage have bubbled along -- in Hawaii, Vermont, Canada, Massachusetts, San Francisco, and, of course, in the nation's capital -- I have come to realize how wrong I was to demarcate a sharp split between the compulsory heterosexual marital practices characteristic of the nineteenth and early-twentieth centuries and the world of marital expectations and practices that define us in the early twenty-first century. My claim today would be that there are important continuities in our marital history, continuities revealed by gay marriage controversies. So that "Man and Wife in America" can be seen as inextricably linked to "Man and Man and Wife and Wife in America."

Here, I want to indicate four lines of continuity. Three of them have to do with values identified with the institution of marriage. One is structural, has to do with the continuing fragmentation of marital power and governance within American federalism.

These four lines indicate only a few of the "jobs" (a term I borrow from the early twentieth century legal theorist Karl Llewellyn) that marriage as an institution has performed. In this talk I focus on marriage as an institution defined by the marriages that Americans made for themselves and litigated for innumerable reasons in the legal system. I pay less attention to the uses of marriage as a tool of governance and public policy, in immigration and race relations to take two obvious examples. Those uses have been wonderfully dealt with in books by Michael Grossberg and Nancy Cott, among others.

The first of my broad brush lines of continuity is the more than two century long struggle to remake marriage as an expression of the imagined right to individual happiness. It is the triumph of that right, the end of that struggle, for heterosexuals, its perceived constitutional inevitability today, that provides the necessary foundation for arguments that the denial of gay marriage is nothing but unconstitutional sex discrimination. Today everyone understands marriage as an individual life choice, and as an event within an individual life. Though marriage continues to offer the fantasy of continuity and permanence (till death do us part), all sane people who enter into it know that it represents a choice to marry this person at this time and that if living with this person at a later time no longer suggests the possibility of happiness, that you are entitled (have a right) to leave and to try again. During the 1970s and 1980s, the U.S. Supreme Court repeatedly affirmed that everyone (by which they then meant heterosexuals only) has a right to marry, as an individual right. Marriage has value and meaning -- and of course it also still has governmentally granted privileges and immunities -- but that meaning is defined most importantly by its significance as a marker of an adult individual's capacity for finding meaning (happiness) in an ongoing relationship.

The "before" to this fundamental right is a world in which marriage is about continuing property relations and about sexual reproduction. Or, to join the two, the "before" is a world in which men possessed property rights in children understood as necessary labor power and as valuable resources. Marriage was how the legal system marked children as owned -- possessed legally or legitimately -- just as all legal systems develop mechanisms for marking valuable property as possessed. And for the wealthy, who were the main consumers of marital law until the nineteenth century, it was also a way to define lineage and to negotiate alliances between families. Happiness (and love) had nothing to do with it.

The struggle to make marriage an expression of the right to happiness is a familiar one -- marked by a growing divorce rate, the undoing of the paternal right to child custody and control, as well as more general changing understandings of children and of sexuality within and without marriage. There are familiar voices that we as historians cherish -- Elizabeth Cady Stanton, Victoria Woodhull and a variety of more utopian socialist and free love advocates -- all of whom saw the right to exit and remake relationships as fundamental to the world they saw a coming. Ellen Dubois and Elizabeth Clark, among others, have made those voices central to our historical corpus. From them we learn about the broadly anti-Calvinist but still Protestant early feminist understanding that challenged traditional marriage as imposing another fallible mortal, a man, against a wife's capacity to achieve a direct relationship with God as a competent adult individual. Coverture, defined as the transformation of a free woman into a wife, as well as (though less discussed) the more limited transformation of a man into an obligated husband, was redefined as a presumptuous denial of individual identity and freedom. And the freedom to love and to withdraw love, combined with that peculiarly American insistence that the legal relationship -- marriage -- ought to house that freedom, became parts of public discourse, found in legislative and state constitutional debates, as well as in woman's rights meetings and gatherings of utopian communities. But the theme is not just one about speeches and legislation and treatises. It is, to a much greater extent, a story of changing expectations and behavior. For the many nineteenth and early twentieth century Americans who made and remade marriages, quietly and often beneath any public scrutiny, the right to individual happiness did define the goals of marriage. But those goals would sometimes, more than occasionally, be frustrated by lingering restrictions on marital freedom, sometimes with truly disastrous results.

In my heterosexist blinders, I assumed that the battle had been won, certainly by the 1960s and 1970s, as no fault divorce and the contractualization of marital relations became the norm across the United States. The right to exit had become absolute, and the ability to exit described the search for happiness that is modern marriage (as well as the work lives of practicing family lawyers). There is, of course, an industry of social scientists and prognosticators who write today about the harms and the unhappiness that easy divorce has produced, particularly for the children of divorce, and some of what they say is at least partially true. But they too write in the shadow of the inescapable knowledge that a right to marry, that is, a right to make, to exit, and to remake, is a lower case constitutional right, a right that belongs to all.

But of course I was wrong.

The second line of continuity is closely related: again, a two century struggle to remake marriage as a contractual relationship between legal equals. But the focus here is less on the individual, more on the dyadic relationship between husband and wife. Much of this story is contained within a history of coverture, a history of the notion that in marriage a wife's legal identity was covered over by her husband's. In my book I argued that it is a mistake to see coverture as the legal marching orders of patriarchy. I thought coverture was better understood as a set of legal regulations -- limitations and controls -- on male power within marriage. But all that said (and fine historians disagree with my interpretation of coverture): the inequality that was marriage was fundamental, whether or not coverture was the creator of that inequality or the law's way of moderating the effects of inequality. And everyone knew, in 1820 in 1880 and still in 1950, that husband and wife meant a dyadic relationship between two unequally situated individuals.

The "before" that stands prior to this two century stream of struggle to undo hierarchy is much the same as the one that bounded the first stream, identified with an older world in which it was uncontroversially the case that women were a resource for reproduction and a labor resource for a household headed by a man. But one has to add one element to the "before": the understanding, beautifully expressed in the writings of the early eighteenth century English feminist Mary Astell, that marriage is an unchangeable relationship of oppression. For her, as for other eighteenth and early nineteenth century feminists, the only escape from marriage as it was, was not to marry. The idea -- born of Revolutionary American republicanism and perfectionist Protestantism -- that legislatures could change the terms of a given and known relationship like marriage, that the inherited identities of husband and wife could be subjected to contingent alteration by republican institutions pursuing the public good (an idea that George W. Bush clearly still has difficulty getting his head around), would only become a part of American public life in the second third of the nineteenth century.

From the mid nineteenth century on, legislators passed a variety of rules that formally moderated the inequalities of marriage -- particularly marital property reforms, earnings acts, and child custody reforms. But it is important not to exaggerate the changes over the next few generations. Both in legal practice and in the lives of married women and men, none of those reforms changed the fundamental legal understanding of marriage as a relationship of power and subordination. And up into the mid twentieth century that older fundamental understanding of marriage still shaped the relevant documents of the law -- in treatises, casebooks, and legal opinions. And it also lived on in the self-understandings and in the behavior of married men and women. Many women and men lived lives in tension or conflict with those norms. But they did so knowingly and self-consciously, aware that their own individual marriages or relationships meant something different than the prescribed understandings and identities embedded in the legal institution.

Real change in the law only came in the post World War II world, and in particular, in the 1970s and 1980s. The reasons for and the markers of that change are the conventional markers of late twentieth century history: women entering the paid labor market in much larger numbers, easily available contraception and the separation of sexuality from marriage, the power of an analogy drawn between the harms of racial subordination and those that came to be identified with sex discrimination, a woman's liberation movement successful at identifying marriage with oppression, an increasingly hegemonic legislative culture of equality and equalization that assumed it was "wrong" to give preferences to mothers in child custody law or to assume that husbands earned more than wives. With some small exceptions, marriage has been reordered as something like a partnership between imagined contractual equals. Today the default rules of marriage may produce more egalitarian effects than would a pure and free regime of contract. There are continuing substantive inequalities that lie behind the fantasy of formal equality. Real lives may or may not have changed in consequence. But marriage as an institution no longer publicly defines a relationship founded on sexual inequality.

Why might this matter for gay marriage? Why not regard this story as a curious sideshow -- call it the odd habits and practices of heterosexuals? I defer to Estelle on this, but I think there has been an important and historic change in queer understandings of marriage over the past fifteen years that connects to the undoing of legalized hierarchy within marriage. Fifteen years ago there was a significant literature of critiques of marriage and rejections of argument for gay marriage, from within the gay and particularly within the lesbian communities. Those critiques were shaped by statements of the form: Why would we want to buy into this historically unequal, oppressive institution designed for the subordination of women? I may be wrong, but it is my impression that such critiques have disappeared in the last few years. There are many possible explanations for that disappearance, but I suspect that one reason for the disappearance of the critique is the change in the meaning of marriage, as the egalitarian changes of the past generation have become normative and predictable parts of the legal landscape.

The third line of continuity is derivative on both of the first two: That is, at every step of the way, over the past two centuries, many disagreed. Many believed that a moral society rested on the sanctity and the unchangeability of heterosexual monogamous marriage, or that God had prescribed a particular unchanging form to the relations between the sexes, or that, at minimum, that individual happiness could not stand as an appropriate foundation for the institution of marriage. Our story is not of a unidirectional set of processes. It is a story of numbers of pitched battles, fought in the press, in legislatures, in courtrooms, and in the ambivalences of many who may have acted on their desires for marital freedom but who still believed that marriage remained something more than an expression of individual life choices. Because of federalism there would be many places -- New York state before the 1960s, South Carolina until the 1970s, that belonged at least in public to those who would resist changes. From the mid nineteenth century through the mid twentieth century, strong voices decried the rising divorce rate, which they identified with liberal divorce havens like Indiana (and later South Dakota, Nevada, and the aptly named Virgin Islands). They saw it, just as conservatives today do, as emblematic of an attempt to change what ought to be understood as a fixed and stable institution. Already in the early 1870s one reads a few Protestant ministers calling for a national constitutional amendment to prevent divorce, to control what was occurring in renegade divorce jurisdictions. In the early twentieth century, there was for a short time Congressional debate over a national divorce law. And those of us who advocate for gay marriage as a right in various states should acknowledge that we stand in much the same position as defenders of Mormon polygamy did in the second half of the nineteenth century, confronting a mobilized community of religious marital orthodoxy (that then included, as Sarah Barringer Gordon has shown, a motley group of uncomfortable but pragmatic feminists).

It is easy, for those of us on the other side, to parody the beliefs and passions of the religious conservatives who have continuously articulated belief in marriage as an expression of God's will and who resisted the individualization and equalization of marital relations. Like others, I have found it easier to study the writings of Elizabeth Cady Stanton than those of the anti-feminist, anti-divorce novelist Margaret Deland. It is, I suppose, a measure of the conventional wisdom of our profession, its inarticulately expressed norms, and our own desire to find heroines and heroes, that so little work has been done on the intellectual and political history of social conservatism within American Christianity in the years before the New Religious Right became a self-described energized minority. But, from the work I have done I suspect, I hypothesize, that there is an important genealogical continuity between those who opposed divorce liberalization (that is, those who worked to keep stringent the rules of exit), those who opposed varieties of rule changes that enabled wives to claim relative equality with their husbands, those who insisted on the continuing obligation of wives to find their identities within husband-controlled marriages, those who decried the entry of women into the workforce, those who would cabin sexual expression within marriage, and those who today lead the charge against gay marriage. I suspect the continuity. And I also suspect that those who "lost" earlier battles over marriage see in gay marriage an opportunity to vindicate deeply held but increasingly marginalized values and beliefs. But here I posit only a hypothesis for further study.

What I do know is that at all times over the past two centuries struggles over marriage have occurred on the terrain of American federalism. Again, to return to my confessional theme, four years ago I described that terrain as belonging to the past. In the 1940s the United States Supreme Court fully applied the Federal Constitution's Full Faith and Credit clause to divorces and remarriages carried out under one state's laws that violated the terms of another state's laws. Until then it was possible to be legally divorced and remarried in one state, and a criminal bigamist in another. Thereafter, conservative divorce regimes could no longer sustain their control over any of their citizens who had the wherewithal to travel to a more liberal jurisdiction -- like a Nevada or a Virgin Islands. And then in the 1960s and 1970s, the Court applied the equal protection clause of the Fourteenth Amendment and an emerging conception of the right to privacy to numbers of state rules that shaped or impinged on marriage: in the Loving decision on miscegenation law, later in decisions on child support, on unmarried paternal rights, on child custody, and on the right to marry. And even with regard to subjects on which the Supreme Court did not rule, both state courts and state legislatures began to act as if the Federal equality and privacy provisions -- or their state constitutional equivalents -- applied. Nearly every state enacted no-fault divorce laws (or their equivalents) over the 1970s and 1980s and, with greater variations, some form of marital property reform. By the early 1990s it looked as if the terrain of American marriage had become largely uniform. It no longer mattered where you lived. Marriages anywhere were about the same as marriages everywhere in the United States.

Today, however, because of gay marriage, the questions and approaches that characterized marriage law over the past two centuries have regained their salience. Once again we confront all the complexities of a state-centered law of marriage, filled with local variations and differences. We have not yet created a new equivalent to the peculiar world of the late nineteenth and early twentieth centuries, when someone could be legally divorced and remarried in one state and a criminal bigamist in another. And because of the U.S. Supreme Court's Lawrence decision last term, that situated gay sodomy within the constitutional protections of the right to privacy, it seems unlikely that those who marry legally in one jurisdiction, say Massachusetts or the Netherlands, will face criminal penalties in another, say Utah or Alabama (though religious and secular officials who officiate in gay marriages in states that will not allow them will continue to run serious legal risks). But in other ways, the whole technical discourse of the conflict of laws, that required judges in one state to evaluate the portability and relevance of marital practices in another state, has regained the significance I thought it had permanently lost.

And for me, as a historian, the ironic result is a greater appreciation for what was at stake in those earlier conflicts on the terrain of American federalism. San Francisco Mayor Newsom's assertion of his authority to declare the constitutionality of same sex marriage finds any number of earlier analogues. Marriage has always been an institution about which local and state officials felt authorized to make constitutional claims about. The apparent force of the Full Faith and Credit clause that appeared to require conservative state officials to recognize divorces and remarriages made in more liberal jurisdictions was always qualified by a public policy limitation. That "limitation" held that where the public official determined that a strong public policy of the state was implicated (say, for example, a state's strong public policy against marital freedom) it was constitutionally permissible for the official to deny full faith and credit to the offending law or practice of the "bad" state. As a side note, and as a measure of the continuities that I have been exploring, it is worth mentioning that the Defense of Marriage Act is in its fundamentals a restatement of this very old public policy limitation.

There is an unattractive messiness to our present situation. It is likely that the question of gay marriage will continue to be fought out state by state, over questions of state legislative policy and state constitutional interpretation. It is likely that it will be many years before same sex married couples will be able to retain their identities and their privileges as married, if they move to particular jurisdictions. And I find those likelihoods both unfair and wrong. And yet there seems to be no escape from that fate (I'm assuming of course that there will not be a Federal constitutional amendment of the sort that President Bush has proposed; nor will we see a U.S. Supreme Court decision in our lifetime that declares that a marriage law limited to heterosexuals is unconstitutional sex descimination.).

For the foreseeable future, we will experience once again the capacity of the states to serve as what Brandeis called laboratories of experimentation. We will live in a nation in which some few places -- Massachusetts, New York, New Jersey, California -- will fully enfranchise and recognize the equal claims of gay citizens, while other places will not. But over the long term, which may be a quite long term, the moral arc of change is towards a legal and political culture in which the question whom a person chooses to marry (putting aside questions of coercion and adult capacity) becomes a matter of inviolable personal freedom. And maybe a matter of rather less significance than it has today and has had throughout American history.

A coda: "marriage" is just a word, and today the legal significance of the word -- as housing or describing the place of legal sexual expression, shared property, and, most importantly, core obligations for the care of children -- is much reduced from what it once was. In my book I invested in a vision of discontinuity because I believed that the bright line that once existed between marriage and non-marriage had grown fuzzy and indistinct in the late twentieth century. I still believe I am right about that change. In many ways marriage today is just a word for a particular contractual relationship. Yet, what gay marriage teaches is the obvious historical lesson about words like "marriage." What matters is what matters. And marriage is a word that today, as in the past, matters politically, legally, culturally, and for individuals as they construct meaning in their lives.