Critics of same-sex marriage often argue that its defenders are guilty of seeking to â??redefineâ?? marriage.
It is true that the term â??marriageâ?? has traditionally been applied, for the most part, to heterosexual unions specifically (though often polygamous ones, a fact such critics persistently pretend to overlook). But it is also true that the term â??marriageâ?? has traditionally been applied exclusively to relationships in which the husband held legal authority over the wife â?? relationships in which the wife was not only subordinated to her husband but actually absorbed into his legal identity.
If we are going to appeal to traditional usage to deny that same-sex partnerships are genuine marriages, then by the same argument we will have to deny that relationships between legal equals can count as marriages. In the traditional meaning of â??marriage,â?? then, there are no married couples in the United States today. â?¨â?¨If instead we insist that relationships among legal equals can be marriages, then we have granted that marriage is an open-textured concept whose meaning is not limited to its historically given forms; in that case, same-sex marriage can no longer be ruled out by linguistic fiat.
In an 1853 debate over â??free loveâ?? (i.e., the separation of sex and state) with libertarian anarchist Stephen Pearl Andrews, communitarian Horace Greeley (of â??go west, young manâ?? fame) defended his conception of marriage as both State-sanctioned and indissoluble (or nearly so â?? he admitted adultery as legitimate grounds for divorce, though added that he â??should oppose even that, if it did not seem to be upheld by the personal authority of Christâ??). From this conception Greeley inferred, logically enough, that no relationship that is not State-sanctioned and not indissoluble (except for adultery) counts as marriage at all:
[T]his reminds me of the kindred case of two persons in Nantucket who have advertised in the newspapers that they have formed a matrimonial connection for life, or as long as they can agree; adding, that they consider this partnership exclusively their own affair, in which nobody else has any concern. I am glad they have the grace not to make the State a party to any such arrangement as this.
But true Marriage â?? the union of one man with one woman for life, in holy obedience to the law and purpose of God, and for the rearing up of pure, virtuous, and modest sons and daughters to the State â?? is a union so radically different from this, that I trust the Nantucket couple will not claim, or that, at all events, their neighbors will not concede, to their selfish, shameful alliance the honorable appellation of Marriage. Let us, at least, â??hold fast the form of sound words.â??
In Greeleyâ??s day, most jurisdictions within the U.S. recognized no grounds for divorce other than adultery (though that was beginning to change, hinc illæ lachrymæ). Today that is no longer true. If, by Greeleyâ??s definition, marriage is inter alia a union that is legally indissoluble (except for adultery), and if current U.S. law recognises no such indissoluble unions, that means that, by Greeleyâ??s definition, nobody in the U. S. today is married.
33 years after Greeleyâ??s animadversions against this unnamed Nantucket couple, a similar event occurred: Kansas free-love activists Lillian Harman and Edwin Walker announced their marriage. Regarding marriage as a â??wholly private compactâ?? of no concern to anybody by themselves, Harman and Walker had conducted their own marriage ceremony without involving either State or clergy.
For this impertinence they were imprisoned. One of the presiding judges in the case â?? ironically named Judge Valentine â?? raised the question whether the coupleâ??s crime was a) living together as a married couple without actually being married, or b) getting married but in an illegal fashion. Valentine came down on the side of (a), but on somewhat different grounds from Greeleyâ??s.
Judge Valentine, unlike Greeley, granted that genuine marriage did not require any ceremony of the State: under common law â??the mere living together as husband and wife of a man and woman competent to marry each other, with the honest intention of being husband and wife so long as they both shall live, will constitute them husband and wife, and create a valid marriage.â?? (He also seemed to require, again unlike Greeley, not that the marriage be actually indissoluble but only that the partners intend that it not be dissolved.) But he rejected the legality of the marriage for a different reason:
In my opinion, the union between E. C. Walker and Lillian Harman was no marriage, and they deserve all the punishment which has been inflicted upon them. â?¦ In the present case, the parties repudiated nearly everything essential to a valid marriage, and openly avowed this repudiation at the commencement of their union.
(Quoted in Hal D. Sears, The Sex Radicals: Free Love in High Victorian America, p. 94.)
What â??essentialsâ?? had the couple repudiated? In their marriage ceremony Harman had declined not only to vow obedience to her husband (such a vow being repugnant both to her feminism and to her libertarian anarchism) but also to vow love unto death: â??I make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act, always, as my conscience and best judgment shall dictate.â?? She also declined to submerge her individuality in anotherâ??s by taking her husbandâ??s last name: â??I retain, also, my full maiden name, as I am sure it is my duty to do.â??
Walker for his part vowed that â??Lillian is and will continue to be as free to repulse any and all advances of mine as she has been heretofore. In joining with me in this love and labor union, she has not alienated a single natural right. She remains sovereign of herself, as I of myself, and we â?¦ repudiate all powers legally conferred upon husbands and wives.â??
In particular he repudiated any right as husband to control his wifeâ??s property; he also acknowledged his â??responsibility to her as regards the care of offspring, if any, and her paramount right to the custody thereof should any unfortunate fate dissolve this union.â?? Harmanâ??s father added: â??I do not â??give away the bride,â?? as I wish her to be always the owner of her person.â?? (Sears, p. 85.)
In Judge Valentineâ??s eyes, then, the â??essentialsâ?? of marriage apparently included not only an intended commitment for life but also the wifeâ??s duty to obey her husband and take his last name, and the husbandâ??s right to rape his wife, to control her property, and to control her access to her children (rights that the husband did indeed traditionally enjoy under 19th-century American law â?? and which survived longer into the 20th century than you may think).
If, then, we apply Valentineâ??s 1887 definition of marriage to our own time, then any couples that are joined under marriage statutes that fail to require the wifeâ??s legal subordination to her husband, or fail to require her to take her husbandâ??s last name, or do not give the husband total control over his wifeâ??s body, property, and children, are not married at all. If Greeley and Valentine were to timewarp their way to the present day, they would see no unions that they would recognise as marriages â?? not, at least, if they were to â??hold fast the form of sound words.â??
So my question, to those today who maintain that same-sex marriage is a contradiction in terms, is this: on what grounds is your definition, which rules out same-sex unions but allows dissoluble, non-patriarchal heterosexual unions to count as marriages, to be preferred to Horace Greeleyâ??s or Judge Valentineâ??s?
How Straight Marriageâ??s Evolution Led to Obamaâ??s Gay-Marriage Endorsement
by Stephanie Coontz May 14, 2012 1:43 PM EDT
President Obamaâ??s endorsement of same-sex marriage last week was certainly historic. But it was not a historical game changer. While Obama may pay a political price for outraging the well-funded minority that passionately opposes gay marriage, he is actually swimming with a strong historical tide.
Gay Marriage
Rachel Baker, left, and Christine Tully wait in line to get their marriage license at the Manhattan City Clerk in New York, July 24, 2011. (Jin Lee / Bloomberg / Getty Images )
Over the past two decades, and particularly in the last three years, weâ??ve seen a sea change in public opinion. In the mid-â??90s, almost 70 percent of Americans opposed same-sex marriage. Now, according to a Gallup poll published last week, half of Americans believe that same-sex marriages should be legally recognized as valid, with the same rights as traditional marriages. The Pew Research Center reports slightly lower numbers, but also shows more Americans supporting same-sex marriage than opposing it.
The countryâ??s division over same-sex marriage is narrow enough for opponents to throw serious obstacles in its path. But itâ??s only a matter of time until theyâ??re swamped by a demographic tide, because opposition to same-sex marriage is heavily concentrated in the oldest segments of the population. Less than one third of Americans aged 70 to 79 support same-sex marriage, whereas 56 percent of those aged 30 to 39 and more than 70 percent of those aged 18 to 29 are in favor of it.
And the growing visibility of gays and lesbiansâ??in the military, in business, on television, and in peopleâ??s own kin networksâ??is eroding opposition even among the older generation. A 70-year-old Romney supporter told a New York Times reporter the day after Obamaâ??s announcement: â??I canâ??t say if Iâ??m for it or against it, because I donâ??t know what my grandkids will be.â??
These changes in sentiment are not just about â??tolerance.â?? They reflect a historic transformation in what heterosexuals expect from their own marriages.
For millennia, marriage was about property and power rather than mutual attraction. It was a way of forging political alliances, sealing business deals, and expanding the family labor force. For many people, marriage was an unavoidable duty. For others, it was a privilege, not a right. Servants, slaves, and paupers were often forbidden to wed, and even among the rich, families sometimes sent a younger child to a nunnery or monastery rather than allow them to marry and break up the familyâ??s landholding.
The redefinition of traditional marriage began about 250 years ago, when Westerners began to allow young people to choose their partners on the basis of love rather than having their marriages arranged to suit the interests of their parents. Then, just 100 years ago, courts and public opinion began to extend that right even to marriages that parents and society disapproved.
In the 1940s and 1950s, many states repealed laws that prevented particular classes of peopleâ??including those with tuberculosis and â??the feeble-mindedâ??â??from marrying. In 1967 the U.S. Supreme Court ruled it unconstitutional for states to prohibit interracial marriage. In 1987 it upheld the right of prison inmates to marry.
The path to same-sex marriage was further opened up when heterosexual couples began to push back against state control over their sexual and reproductive lives. Until the 1950s, some states forbade married couples from using assisted reproduction to have children, ruling that artificial insemination was tantamount to adultery and any resultant child was illegitimate. Conversely, until the Supreme Court ruled in 1965 that couples had a right to sexual privacy, many states refused to allow the sale of birth control to married couples who wanted to prevent or limit their childbearing.
Marriage itself has evolved in ways that make it harder to justify excluding same-sex couples from its benefits and obligations.
The longstanding idea that the validity of a marriage depended on the ability and willingness of a couple to have children was eroded on two fronts when married couples who were not biologically capable of having children won access to other ways of starting a familyâ??through artificial insemination, sperm donors, surrogate mothers, and liberalized adoption lawsâ??and married couples who did not want children won the right to use contraception. Increasingly, Americans came to agree that two people who loved each other should be allowed to marry and to make their own decisions about whether or how to bring kids into the world.
But the most important cultural change that has increased support for same-sex marriage is the equality revolution within heterosexual marriage.
For most of history, the subordination of wives to husbands was enforced by law and custom. As late as the 1960s, American legal codes assigned differing marital rights and obligations by gender. The husband was legally responsible for supporting the family financially, but he also got to decide what constituted an adequate level of support, how to dispose of family property, and where the family would live. The wife was legally responsible for providing services in and around the home, but she had no comparable rights to such services.
That is why a husband could sue for loss of consortium if his spouse was killed or incapacitated, but a wife in the same situation could not. And because sex was one of the services expected of a wife, she could not charge her husband with rape.
Between the 1970s and 1990s, however, most Americans came to view marriage as a relationship between two individuals who were free to organize their partnership on the basis of personal inclination rather than preassigned gender roles. Legal codes were rewritten to be gender neutral, and menâ??s and womenâ??s activities both at home and work began to converge.
Today, the majority of American children grow up in homes where their parents share breadwinning, housework, and child care. Some couples even decide to reverse traditional gender roles, with the woman becoming the primary breadwinner or the man becoming a stay-at-home dad.
The collapse of rigid gender expectations and norms has fostered the expectation that marriage should be an individually negotiated relationship between equals, replacing the older notion of marriage as a prefabricated institution where traditional roles and rules must be obeyed.
The result is a paradox. Marriage is now more optional than in the past, and people are far less willing to remain in a marriage that doesnâ??t feel fair, loving, and mutually respectful. On the other hand, as a result of these changes, many marriages have become more fulfilling and mutually beneficial than ever before.
Domestic violence rates have plummeted over the past 30 years, dropping by 50 percent since 1980. The divorce rate, which rose sharply in the 1960s and 1970s, has been falling since its peak in 1981, and it has fallen the most for educated couples, who are the most likely to mix and match traditional gender behaviors.
The growing acceptance of same-sex marriage is the result of these profound changes in heterosexual marriage. Itâ??s not just the presidentâ??s views on marriage that have evolved. Marriage itself has evolved in ways that make it harder to justify excluding same-sex couples from its benefits and obligations.
A rearguard action by a determined minority may hold back the tide of history for a while. That is why many opponents are eager to pass one-man/one-woman amendments that will take a two-thirds majority to overturn. But same-sex unions are here to stay. The question is whether our political and legal system will recognize that reality nowâ??or whether gays and lesbians will have to wait until the out-of-touch opposition to marriage equality literally dies off.
