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Cott_Public Vows - gUBLIC OWS A HISTORY OF MARRIAGE AND THE...

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Unformatted text preview: gUBLIC OWS A HISTORY OF MARRIAGE AND THE NATION NANCY F. C‘OTT HARVARD UNIVERSITY PRESS Cambridge, Massachusetts London, England 2000 Copyright © 2000 by Nancy F. Cott All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publimtion Data Cott, Nancy F. Public vows: a history of marriage and the nation / Nancy F. Cott p. cm. Includes bibliographical references and index. ISBN 0—674—00320-9 (hardcover : alk. paper) 1. Marriage—United States—History. 2. United States—Social life and customs. I. Title. HQ536 .C757 2000 306.85'0973—dc21 00—031898 CONTENTS Introduction An Archaeology of American Monogamy Perfecting Community Rules with State Laws Domestic Relations on the National Agenda Toward a Single Standard Monogamy as the Law of Social Life Consent, the American Way The Modern Architecture of Marriage Public Sanctity for a Private Realm Marriage Revised and Revived Notes / 231 Acknowledgments / 285 Index / 287 24 56 77 105 132 156 180 200 INTRODUCTION arriage is like the sphinx—a conspicuous and recognizable monument on the landscape, full of secrets. To newcomers the monu— ment seems awesome, even marvelous, while those in the vicinity take its features for granted. In assessing matrimony’s wonders or terrors, most people view it as a matter of private decision-making and domestic arrangements. The monumental public character of marriage is generally its least noticed aspect. Even Mae West’s joke, “Marriage is a great insti- tution . . . but I ain’t ready for an institution yet,” likened it to a private vate property, marriage certainly does design the architecture of private life. It influences individual identity and determines circles of intimacy. It can bring solace or misery—or both. The view of marriage as a private relationship has become a public value in the United States, enshrined in legal doctrine. In 1944 the US. Supreme Court portended a momentous line of interpretation by finding that the US. Constitution protected a “private realm of family life which the state cannot enter.”' At the same time that any marriage represents personal love and com- mitment, it participates in the public order. Marital status is just as important to one’s standing in the community and state as it is to self~ understanding. Radiating outward, the structure of marriage organizes community life and facilitates the government’s grasp on the populace. To be marriage, the institution requires public affirmation. It requires public 2 / PUBLIC VOWS . knowledge—at least some publicity beyond the couple themselves; that is why witnesses are required for the ceremony and why wedding bells ring. More definitively, legal marriage requires state sanction, in the license and the ceremony. Even in a religious solemnization the assembled guests know to expect the officiating cleric’s words, “By the authority vested :in me by the state of . . . I now pronounce you husband and wife.” In the marriage ceremony the public recognizes and supports the couple’s reciprocal bond, and guarantees that this commitment (made :in accord with the public’s requirements) will be honored as something valuable not only to the pair but to the community at large. Their bond will be honored even by public force. This is what the public vows, when the couple take their own vows before public witnesses. The public sees itself and its own interest reflected in the couple’s action.2 In the form of the law and state enforcement, the public sets the terms of marriage, says who can and cannot marry, who can officiate, what oblig— ations and rights the agreement involves, whether it can be ended and if so, why and how. Marriage prescribes duties and dispenses privileges. The governmental apparatus in the United States has packed into marriage many benefits and obligations, spanning from immigration and citizen- ship to military service, tax policy, and property rules. Husbands and wives are required to care for and support each other and their children. Social Security and veterans’ survivors’ benefits, intestate succession rights and jail visitation privileges go to legally married spouses. Even though state governments, not federal authorities, have the power to reg- ulate marriage and divorce, a 1996 report from the U. S. General Account— ing Office found more than one thousand places in the corpus of federal law where legal marriage conferred a distinctive status, right, or benefit. 3 From the founding of the United States to the present day, assump— tions about the importance of marriage and its appropriate form have been deeply implanted in public policy, sprouting repeatedly as the na— tion took over the continent and established terms for the inclusions and exclusion of new citizens. Political authorities expected monogamy on a Christian model to prevail—and it did, not only because of widespread Christian faith and foregoing social practice, but also because of positive INTRODUCTION / 3 and punitive laws and government policy choices. Political and legal au thorities endorsed and aimed to perpetuate nationally a particular mar riage model: lifelong, faithful monogamy, formed by the mutual consen of a man and a woman, bearing the impress of the Christian religion am the English common law in its expectations for the husband to be th‘ family head and economic provider, his wife the dependent partner. Be cause mutual consent was intrinsic to it, this form of marriage was espe cially congruent with American political ideals: consent of the partie. was also the hallmark of representative government. Consent was basic t1 both marriage and government, the question of its authenticity no meant to be reopened nor its depth plumbed once consent was given. Public preservation of marriage‘on this model has had tremendou: consequences for men’s and women’s citizenship as well as for their pri- vate lives. Men and women take up the public roles of husbands anc wives along with the private joys and duties. These roles have been pow- erful, historically, in shaping both male and female citizens’ entitlement: and obligations. Molding individuals’ self—understanding, opportunities. and constraints, marriage uniquely and powerfully influences the way differences between the sexes are conveyed and symbolized. So far as it is a public institution, it is the vehicle through which the apparatus of state can shape the gender order. The whole system of attribution and meaning that we call gender relies on and to a great extent derives from the structuring provided by mar- designated the ways both sexes act in the world and the reciprocal relation between them. It has done so probably more emphatically than any other single institution or social force. The unmarried as well as the married bear the ideological, ethical, and practical impress of the marital institution, which is difficult or impossible to escape. Karl Llewellyn, a legal theorist of the mid-twentieth century, was referring to marriage when he observed, “The curious feature of institutions is that to society at large they are a static factor, whereas to the individual they are in first in~ stance dynamic. Society they hold steady: they are the received pattern of its organization and its functioning. The individual . . . is moulded 4 / PUBLIC VOWS dynamically by and into them.” Llewellyn emphasized that the institution of marriage was “a device for creating marital going concerns."4 Whether or not marriage is as natural as is often claimed, entry to the institution is bound up with civil rights. Marriage is allowed or disallowed by legislators’ and judges’ decisions. The separate states from Maine to California, which have the power to regulate marital institutions as part of their authority over the local health, safety, and welfare, determine who gains admittance. Consequently, marriage has also been instrumental in articulating and structuring distinctions grouped under the name of “race.” In slaveholding states before the Civil War, slaves had no access to legal marriage, just as they had no other civil right; this deprivation was one of the things that made them “racially” different. Long after the era of slavery, a white person and an African American did not have the civil right to marry each other in the majority of states (not only in southern states). A white and an Asian wishing to marry in many western states found them— selves similarly tabooed. Marriage law thus constructed racial difference and punished (or in some instances, more simply refused to legitimize) “race mixture.” Sixteen states still considered marriage across the color line void or criminal as recently as 1967, when the US. Supreme Court overruled them.S It is striking, too, as the history in the following chapters will unfold, that the marital nonconformists most hounded or punished by the federal government were deemed “racially” different from the white majority. They were Indians, freed slaves, polygamous Mormons (metaphorically nonwhite), and Asians. Prohibiting divergent marriages has been as important in public policy as sustaining the chosen model. By incriminating some marriages and encouraging others, marital regulations have drawn lines among the citizenry and defined what kinds of sexual relations and which families will be legitimate. On the contem— porary scene, same—sex couples have made their exclusion conspicuous. By contesting their deprivation, they have thrown a spotlight on mar— riage as a matter of civil rights and public sanction. Excluded or policed groups such as same—sex couples (or, in the past, slaves, or Asians who 7 believed “proxy" marriages valid, or native Americans who had non— Christian traditions) have readily understood that they, as minorities, may INTRODUCTION / 5 have to struggle for equal status on the terrain of marital regulation. The majority, meanwhile, can parade the field, taking public affirmation for granted. Aspiring minority groups (ex—slaves during Reconstruction are a . good example) have often tried to improve their social and civil leverage? airy] with conventional marriage behavior, recognizing that the majority has an investment in the sanctity of marital roles, whoever holds them.6 u-ll No modern nation—state can ignore marriage forms, because of their 5 direct impact on reproducing and composing the population. The laws of WW marriage must play a large part in forming “the people.” They sculpt the body politic. In a hybrid nation such as the United States, formed of immi— grant groups, marriage becomes all the more important politically. Where citizenship comes along with being born on the nation’s soil as it does here, marriage policy underlies national belonging and the cohesion of the whole. Therefore the federal overnment has incor orated articular ex— pectations for marriage in many initiatives and es eciall in citizenship 4 7 M‘ policies, even though there is no federal power to regulate marriage directly Db N (except in federal territories). At least three levels of ublic a ' hape the institution of marriage. The immediate communig of kin, friends, and neighbors exercises the approval or disapproval a couple feels most in— tensely; state legislators and judges set the terms of marriage and divorce; and federal laws, policies, and values attach influential incentives and dis- incenfivesto marriage forms and practices.7 The United States has shown through its national history a commitment to exclusive and faithful monogamy, preferably intraracial. In the name of the public interest and > public order, it has furthered this model as a unifying moral standard. Secular rather than religious authorization of marriage has been a consistent tradition in the United States. This was not inevitable, but rather a latter—day outcome of a specific history of church—state conflict in Church had to endeavor for far more than a millennium to put the norm ,/ "r of faithful, lifelong monogamy in place and to bring its adherents’ mari— i tal behavior under ecclesiastical administration; then European mon— / archs succeeded for the most part in wresting this regulatory control from the Church.8 Kings of would—be nations in England and Europe 6 / PUBLIC VOWS sparred with the Church for three centuries for control over marriage be— cause they saw this power as decisive for the social order. Typically, founders of new political societies in the Western tradition have inaugu— rated their regimes with marriage regulations, to foster households con— ducive to their aims and to symbolize a new era—whether in colonial Virginia, revolutionary France, the breakaway republic of Texas, or the unprecedented Bolshevik system in the Soviet Union.9 Modern sover— eigns generally want to prescribe marriage rules to stabilize the essential “activities of sex and labor and their consequences, children and property. Because the United States established no national church, but said it would separate church and state and observe religious tolerance, state control flourished. The author of the preeminent nineteenth—century le- gal treatise on marriage and divorce showed his commitment to state au— thorization by calling marriage a “civil status”; he dismissed as “too absurd to require a word of refutation . . . the idea that any government could, consistently with the general well—being, permit this institution to become merely a thing of bargain between men and women, and not reg— ulate it.” The Christian religious background of marriage was unques— tionably present and prominent. It was adopted in and filtered through legislation.” For Americans who envisioned marriage as a religious cere— mony and commitment, the institution was no less politically formed and freighted; yet they were unlikely to object to secular oversight when both the national and the state governments aligned marriage policies with Christian tenets. Echoing and reinforcing the religious dictates of “Christian civilization” in the United States, public rules on marriage have had an especially large potential to influence citizens’ views. At the same time, civic decision-making has remained paramount. State legis— lators altering the terms of marriage have often found cover in divine mandate or the law of nature—when nullifying marriages that crossed the color line, or creating unequal statuses for husbands and wives, for example yet they have not hesitated to exercise their own jurisdiction. Not only Christian doctrine but also the ancient common law ofEng— land deeply inflected the legal features of marriage in the United States. “Domestic relations“ in the common law included the relative privileges INTRODUCTION / 7 and duties of husbands and wives, employers and employees, and masters and slaves. Political ordering began in the household and influenced all governance and representation inside the household and out. Marriage- itself served as a form of governance. In the longer Western political tra- dition on which the common law drew, a man’s full civil and political sta— tus consisted of his being a husband and father and head of a household unit, representing himself and his dependents in the civic world. Wives and children did not represent themselves but looked to the male head of household to represent and support them, in return for which they owed their obedience and service. A man’s headship of a family, his taking the responsibility for dependent wife and children, qualified him to be a par—- ticipating member of a state.11 The political tradition thus built on monogamous marriage; the two complemented each other. Under the common law, a woman was absorbed into her husband’s le— gal and economic persona upon marrying, and her husband gained the civic presence she lost. Marriage decisively differentiated the positions of husband and wife. The wife’s marital dependency so compromised her ability to act for herself 1n public that single women, too, being potential wives, were often treated as lacking civic independence. Even though most American states supplanted the common law with their own legal codes by the early l800s—and the social hierarchies represented in the common law were contested at every subsequent point—central assumptions about marriage, such as the essential unity of the married pair, continued to ori— ent the minds of lawyers and statesmen and to flow into legal decisions and the culture at large. In the 18505 it was not surprising for an essayist to ob- serve: “The husband acquires from the union increased capacity and power. He represents the wife in the political and the civil order.” So many generations of statesmen regarded this model of marriage as a foundation of the American way of life that the influence of the common law extended into the mid—twentieth century. As recently as 1996 con ressional debate on the Defense of Marriage Act reiterated long—lived official insistence on ___—__—___". traditional marria e as a necessar illar of the nation.12 The public face of marriage can be sought in the legal record, which reveals more than the letter of the law. The legal apparatus in the United / real} B / PUBLIC VOWS States, encompassing elections of legislators and judges, production and interpretation of legislation, methods of enforcement, achievement or failure of consensus about law’s justice, and resort to the Constitution, has always strongly colored the political culture and social expectations.” Reading the legal record for cultural and social insights need not conflict with awareness that the law represents coercive power: quite the oppo— site. In shaping an institution like marriage, public authorities work by defining the realm of cognitive possibility for individuals as much as through external policing. Law and society stand in a circular relation: social demands put pressure on legal practices, while at the same time the law 5 public authority frames what people can envision for themselves and can conceivably demand.14 Reflecting the majority consensus, legis— lators, judges, and most other public spokesmen in the history of the United States have shown remarkable concurrence on the basic outline of marriage as a public institution. Judges have reviewed but only very rarely have struck down legislators’ enactments, When there has been conflict, the issue has usually been competition between federal and state-level authorities, not the elevated status of lifelong monogamy, Yet challenges and disruptions have occurred. In recent decades they have proliferated. Marital behavior always varies more than the law pre— dicts. Men and women inhabit their marital roles in their own ways, not always bending fully inside the circle of civil definitions, but bringing new understandings into the categories of “husband” and “wife.” Unless the legal order is deeply hypocritical, however, the majority of the people conform more than they resist. By definition, in a representative govern— ment the majority do not feel coerced as they follow the marital model in— stigated by public authority. Dissidents or minority groupings are likely to feel the force of the law, while the majority absorb and mirror the force of moral regulation silentl exerted b ublic s mbols and overnmental routines. The more that marriage is figured as a free and individual. f choice—as it is today in the United States—the less the majority can see compulsion to be involved at all. Like the sphinx with its riddles, the in-l stitution of marriage, shadowing the public landscape with its monu— mental bulk, confounds as much as it shows. AN ARCHAEOLOGY OF AMERICAN MONOGAMY n the beginning of the United States, the founders had a political theory of marriage. So deeply embedded in political assumptions that it was rarely voiced as a theory, it was all the more important. It occupied the place where political theory overlapped with common sense. Rather than being “untutored,” or “what the mind cleared of cant sponta— neously ap...
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