Reader's Companion to U.S. Women's History
[I think both applied...the marriage was registered in town records from early 1600's, and was sanctioned in a home or church by JP or clergy. The problem with finding early church records is that many times the ministers, or traveling ministers took their records with them if there was no formal building. I think the State was the necessary ingredient for the contract to be legal, but from early days, many people felt they weren't married unless there was a religious ceremony.]
Marriage
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Throughout U.S. history, marriage has been deemed a social good, especially for women. If marriage rates for a specific group of women diminished—as happened for college-educated women in the late 1800s—this was generally treated as cause for concern. Unlike divorce rates, the marriage rates for women have remained fairly consistent. Allowing for some deviations, it has been true since nationhood that less than 10 percent of women eligible to marry never marry during their lifetime.
While marriage has significant social, psychological, religious, and cultural dimensions, these have often been overshadowed by legal definitions. The historical trajectory of marriage is often described as a shift from marriage as a status to the notion of marriage as a contract, but both status and contract coexist in conceptions of marriage. The law has traditionally constructed marriage as limited to two people, one man and one woman, whose marriage creates a legal unity represented in the public sphere by the male partner. Thus, until the Married Women's Property Acts of the 1840s, married women were not able to own property or enter into contracts because their legal existence had been extinguished by the status of marriage. Rooted in the theory of the legal unity of marriage are more recent laws, including state statutes that attempted to require spousal notification before a married woman could obtain an abortion. The Supreme Court has declared that these spousal notification laws violate constitutional privacy (Planned Parenthood of Southeastern Pennsylvania v. Casey). Perhaps ironically, the notion of constitutional privacy itself springs from the notion of marriage as a legal unity; the first case recognizing a privacy right to obtain contraception identified the right in relation to the sanctity of the marital relation (Griswold v. Connecticut).
Whether marriage is viewed as status or contract, it is pervasively regulated by state law. Since colonial times, state laws have governed marriage, including who was qualified to perform the ceremony. At first, only justices of the peace were so qualified, but this soon was expanded to include clergy certified by the state, despite objections that such authority violated the separation of church and state. Now most states require some sort of ceremony and the registration of a marriage certificate. A handful of states recognize common-law marriage, meaning that the state will deem a relationship a legal marriage even if there is no ceremony and registration if the couple can meet certain other requirements, such as living together for a certain period of years and defining themselves as married.
In the slave states before the Civil War, slaves could not enter into any contracts, including the marriage contract. After the Civil War, one of the first issues to be considered by legislators in states of the former Confederacy was the legalization of slave unions. While this may have partially been a recognition of the humanity of former slaves, there are some arguments that the state interest in marriage was a mechanism to deem children the financial responsibility of freedmen rather than of their former masters or of the state itself. A vestige of the slave codes persisted in miscegenation laws, which disqualified and often criminalized marriages between nonwhite persons and white persons. Many states began to repeal their miscegenation laws after World War II, but it was not until 1967 that the Supreme Court held that miscegenation laws were unconstitutional (Loving v. Virginia).
State laws have historically regulated, and continue to regulate, the degree of permissible relation between the parties, prohibiting, for example, marriages between brothers and sisters or between first cousins. The rationale for such laws is based upon questionable notions of genetics and supports prohibitions of all such marriages, even when the couple would not or could not procreate. Although such marriages are usually not criminal, the state generally views such marriages as void and refuses to recognize them.
State laws also regulate the minimum age for marriage, usually legislating differently for females and males. For example, the legal age for marriage with parental consent ranges from twelve years for females and fourteen years for males in some states and without parental consent the ages range from sixteen to twenty-one for females and eighteen to twenty-one for males. The courts have generally rejected arguments that the differential ages for men and women constitute gender discrimination, concluding that the state's goal of preventing unwed teenage pregnancy is a sufficiently important reason for the differential.
All states now prohibit a person who is already legally married from entering into another marriage; however, this has been a controversial issue in U.S. history because of the Mormons' acceptance of polygamy. Although marriage is supposedly within the province of state rather than federal regulation, the federal government conditioned Utah's entry into the Union upon abolishment of its laws permitting polygamy, causing the delay of Utah's statehood until 1896, more than forty years after the initial application.
Echoes of the federal-state conflict regarding polygamy are found in the contemporary controversy surrounding same-sex marriage. Although during the 1970s many courts had rejected challenges to the limiting of marriage licenses to couples consisting of a male and a female, in 1993 the Hawai'i Supreme Court ruled that such treatment might constitute sex discrimination (Baehr v. Levin). The court relied upon its state constitutional provision prohibiting sex discrimination and held that unless the state could demonstrate a compelling interest for the limitation of marriage to male-female couples, the practice must be discontinued and same-sex couples must be allowed to avail themselves of legal marriage. When the case was remanded for trial, the trial court found that the state did not satisfy its burden of demonstrating a compelling reason and most observers expect that the Hawai'i Supreme Court will affirm this ruling. Such an affirmation would legalize same-sex marriages in Hawai'i, although opponents plan to amend the state constitution to prevent such a decision from taking effect.
Whether same-sex marriages in one state would be valid in other states is unclear. In response to the Hawai'i litigation, in 1996 Congress passed the Defense of Marriage Act (DOMA), which attempts to clarify that states need not recognize same-sex marriages. Many states have passed similar statutes providing that the state will not recognize same-sex marriages even if such marriages are legally valid in other states. These state laws as well as DOMA contradict the general practice of states recognizing as valid marriages that are valid in other states, a practice that is possibly mandated by the full faith and credit clause of the Constitution.
The controversy over same-sex marriage not only implicates laws and legislators but feminist theorists have also divided over the issue. In one feminist view, legalizing same-sex marriage has the potential to erode the gendered configuration of marriage and to liberalize and perhaps even liberate the institution of marriage from its patriarchal roots. In the opposite view, legalizing same-sex marriage will mean merely that same-sex couples will be assimilated into the institution of marriage with all its defects, including its current construction as a civil contract among three parties, one of which is always the state.
Ruthann Robson
See also Coverture; Divorce and Custody; Families; Legal Status. |
