Originally Posted by Grimnebulin
Some interesting history about the history of marriages per The New Yorker...a few years old but still relevant.
Love Supreme
Gay nuptials and the making of modern marriage.
by Adam Haslett May 31, 2004 - The New Yorker
In December of 1990, Genora Dancel and Ninia Baehr, a lesbian couple from Honolulu, applied for and were denied a license to marry. They decided to file suit against the state for discrimination. The local branch of the A.C.L.U. declined to represent them, and the national gay legal organizations initially kept their distance, considering the issue premature. But the couple persisted, and three years later the Hawaii Supreme Court became the first in the nation to support the right of same-sex couples to wed. Conservative religious groups poured money into the state and eventually helped pass an amendment to its constitution declaring marriage an exclusively heterosexual institution.
More was at stake than the laws of Hawaii. Article IV of the United States Constitution establishes that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” This is the reason that a couple married in New York can fly to California and still legally be husband and wife when they land. Worried that other states might one day extend marriage rights to same-sex couples, conservatives in Congress introduced the Defense of Marriage Act, which defined marriage as between a man and a woman for the purposes of all federal law, from taxes to Social Security, and released the states from any constitutional obligation to recognize same-sex marriages that might be performed elsewhere. President Clinton, seeking to deny Bob Dole a wedge issue in his 1996 reëlection campaign, signed the bill late on a Friday night, after the press corps had gone home.
The issue’s sudden prominence during the past several months stems from a decision of the Supreme Judicial Court of Massachusetts last November to grant same-sex couples full civil marriage. For the first time in this country’s history, a state has sanctioned the marriage of two men or two women; because the Massachusetts constitution can’t be amended any sooner than 2006—the process is under way but by no means certain to succeed—it will do so for at least the next two years. The Bay State thus joins the Netherlands, Belgium, and three Canadian provinces in offering gay couples not only the rights and obligations of marriage but the word itself.
The ensuing national ferment has become a struggle over the meaning and purpose of matrimony. For marriage as we know it today is the product of a particular history—a history that explains both its public character and the private expectations we have for it. The advent of same-sex marriage brings into focus a much larger transformation in how we have come to imagine the institution.
For centuries in Europe, formal marriage was a private contract between landed families, designed to insure that property remained within a particular lineage. In the upper classes, families essentially married other families, forging political alliances and social obligations among relatives and kin. It was during the Reformation, with the emergence of the early Protestant idea of “companionate marriage,” that the emotional bond between husband and wife came to be seen as an end in itself. As the social historian Lawrence Stone noted, this was a marked departure from the Catholic ideal of chastity, which considered earthly marriage a more or less unfortunate necessity meant to accommodate human weakness; “It is better to marry than to burn,” St. Paul had said, but he made it sound like a close call. So when the Puritans wrote of husbands and wives as mutually respectful and affectionate partners they were moving toward a new understanding of marriage as a kind of spiritual friendship.
It was Milton who took this concept to its logical conclusion. Having married a woman with whom he soon discovered he had nothing in common, he became a staunch advocate of divorce. When the “meet and happy conversation” that is “the chiefest and the noblest end of marriage” ceases, he argued, no authority should have the power to force a man and a woman to remain wed. It was hundreds of years before the law caught up with his notion that irreconcilable differences might be grounds for divorce. But what his tracts on the subject demonstrate is that early Protestant thinking about matrimony contained the seeds of our own more radical individualism.
These days, few would disagree that respect and affection are central to a successful marriage. But most of us would add another ingredient, which had long been viewed skeptically as a reason to wed: romantic love. Burton, in his “Anatomy of Melancholy”—the most widely read book of the seventeenth century after the Bible—reflected a common view when he described marriage as one of several “remedies of love,” which was itself an illness to be overcome. Not until the confessional diaries and novels of the late eighteenth and early nineteenth centuries started to influence bourgeois notions of what Jane Austen called “connubial felicity” did romance begin its steady ascent in the marital realm. Today, needless to say, the most respectable reason you can give for getting married is that you have fallen in love. We have managed to create an ideal of matrimony that combines both lifetime companionship and the less stable but more intoxicating pleasures of romantic ardor.
Such great expectations of marital happiness belong to a larger history of the Western emphasis on the self. The philosopher Charles Taylor, in an examination of how our attitude toward interior life has changed over the past five hundred years, argues that the trend line runs in one direction: from a self-understanding gained from our place in larger entities—such as a chain of being or divine order—toward purpose discovered from within, through what we consider to be authentic self-expression. This is the distance Western culture has travelled from the church confessional to the therapist’s couch. In turn, the choice of whom to marry has become less about satisfying the demands of family and community than about satisfying oneself. When you add the contraceptive and reproductive technologies that have separated sex from procreation, what you have is a model of heterosexual marriage that is grounded in and almost entirely sustained on individual preference. This is a historically peculiar state of affairs, one that would be alien to our ancestors and to most traditional cultures today. And it makes the push for gay marriage inevitable.
If agreement between two people were all that was required, of course, gays and lesbians would have been marrying for some time already. According to the 2000 census, the first to collect such data, there are five hundred and ninety-four thousand same-sex couples living in the United States (and that’s no doubt an undercount, given people’s reluctance to report their sexual orientation to the government). But marriage requires the consent of a third party—namely, the state.
This fact, too, can be traced to the same early Protestants who gave us companionate marriage. As the journalist E. J. Graff tells us, in her newly reissued popular history “What Is Marriage For?” (Beacon; $16), at the time Luther nailed his proclamations to the door, Rome had no requirement that a priest be present at the wedding ceremony; vows spoken in private were sufficient to create a binding marriage. That caused the aristocracy no end of trouble, given that disobedient children were liable to threaten carefully negotiated contracts by running into the closet with a servant and whispering sweet promises. For the northern European Protestants, the solution was to require, for the first time, a public ceremony with the presence of witnesses. They also transferred the power to enforce the new rules to the emerging secular states. In England, precaution had long taken the form of “banns”: a couple’s intention to wed was proclaimed in church on three successive Sundays, thus giving a community plenty of time to determine whether either party was committed elsewhere. The state-issued marriage licenses we employ today originated in magistrates’ offices and enabled well-to-do families to avoid the banns by attesting to the fitness of the parties in a document.
Informal arrangements nevertheless persisted among those who were less well off, or who lived in less regulated societies. In the early days of the American Republic, with a population scattered across the continent, there were simply too few ministers and justices of the peace to go around. Largely for the practical reason of not wanting to declare so many children bastards, most state courts recognized common-law marriage, established by mutual consent and cohabitation. If you said you were married and the neighbors tended to believe you, then in the eyes of the law you were. (In eleven states, including Texas, this is still the case.) In the decades after the Civil War, however, government bureaucracy, spurred by the moralists and social scientists of the Progressive movement, began to regulate marriage far more aggressively. For the first time, people who sought to wed had to submit to medical examinations, and those with syphilis or gonorrhea were prevented from marrying by criminal statute. By the century’s end, state legislatures had all but mandated that couples obtain a license to marry.
These government-sponsored contracts are at the center of the fight over same-sex unions. In the modern administrative state, civil marriage condenses within a single document a vast array of legal, financial, and medical rights and benefits. Like citizenship for the immigrant, it is a passport to a more secure world. As the old status of marriage has come to include such a range of contractual benefits, the debates over equality within and access to the institution have intensified.
Owing to the reforms of the past forty years, men and women now enter the married state with more legal parity than ever before. Under the old doctrine of coverture, a man owned not only his wife’s property but her body as well. Today, in nearly every state, men’s and women’s rights and obligations in alimony, child custody, child support, and property division in divorce have been made formally gender-neutral. Arrests and prosecutions for domestic abuse, rare thirty years ago, are now routine. As recently as 1984, a man could not be prosecuted for raping his own wife; today, it’s a crime in all fifty states.
During the same period that the old patriarchal rules were being revised, the Supreme Court struck down a series of laws limiting the right of individuals to marry in the first place. In the most famous case, Loving v. Virginia, a unanimous Court held that anti-miscegenation laws were unconstitutional. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” Chief Justice Warren wrote in 1967. A decade later, a Wisconsin law preventing people from marrying if they were behind on their child-support payments was overturned as too burdensome to the “basic civil rights of man.” In 1987, the Rehnquist Court deemed the freedom to marry so fundamental that it could not be denied to prison inmates, whose other constitutional rights are routinely abrogated.
Those who opposed extending this right to same-sex couples used to cite the fact that many states outlawed sodomy: how could you sanction the marriage of people who could be arrested for what they did together in the bedroom? Then, last summer, in Lawrence v. Texas, the Court struck down the thirteen remaining sodomy laws in the country, and established a broad constitutional right to sexual privacy. The force and scope of the opinion surprised even its supporters. In a rare gesture, the Court not only overturned Bowers v. Hardwick, a 1986 opinion upholding a Georgia sodomy statute, but in essence apologized for it: “Its continuance as precedent demeans the lives of homosexual persons.” The majority was careful to point out that the decision said nothing about the “formal recognition” of relationships. But opponents of same-sex marriage realized the decision’s importance. As Justice Scalia warned in a caustic dissent, “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.” Five months later, the Massachusetts high court cited Lawrence in its decision.
Social conservatives now fear that, in the absence of a constitutional amendment to ban gay marriage, the Supreme Court will combine its precedents on the fundamental right to marry with the more recent decisions in favor of gay rights to give same-sex couples their own Loving v. Virginia—nationalizing gay marriage through constitutional interpretation. As a doctrinal matter, such fears are well grounded. Few legal scholars would disagree with Justice Scalia that Lawrence has made this outcome far more plausible.
Politically, however, a gay Loving is unlikely in the foreseeable future. The Supreme Court is seldom a force of social innovation. The first state to strike down its anti-miscegenation law was California, in 1948. For nearly two decades thereafter, all through the period of Brown v. Board of Education, the Court avoided the controversy over interracial marriage, exercising its discretion not to hear a case. By the time it decided Loving, fourteen states had followed California’s lead, and only sixteen still maintained a ban. The Court endorsed what had become a majority position, if not in public opinion at least in legislative fact; the same can be said of Lawrence. The modern conservative obsession with what is selectively dubbed judicial activism has much to do with Roe v. Wade, and the fact that it struck down thirty state laws criminalizing abortion. No less an advocate of abortion rights than Justice Ruth Bader Ginsburg has suggested that it may have been precipitate not to allow the states to come to a stronger consensus before the Court brought the reform process to an end. In the informal electorate of the states, the vote on full civil marriage for same-sex couples now stands at forty-nine to one. It is difficult to conceive of the Supreme Court recognizing a right to gay marriage under these circumstances.
Meanwhile, interest groups on both sides are lobbying legislators and filing more suits, in an attempt to shape the outcome in one jurisdiction at a time. As a legal matter, these are contests over the expansion of the rights and obligations of marriage. As a political and cultural matter, they are contests over something less easy to codify: the official recognition of love. Here the two most important developments in the history of marriage—secular regulation and the rise of the romantic-companionate ideal—become intertwined. The state is being asked not only to distribute benefits equally but to legitimate gay people’s love and affection for their partners. The gay couples now marrying in Massachusetts want not only the same protections that straight people enjoy but the social status that goes along with the state’s recognition of a romantic relationship.
This is the difference between civil unions and marriage: one is a legal certificate and the other is a public endorsement. Not surprisingly, many Americans who might support the first remain uncomfortable with the second. In “Gay Marriage” (Times Books; $22), the journalist Jonathan Rauch means to persuade such people that same-sex marriage will be good not only for gay people but for marriage in general. Rauch is a conservative—how many books garner blurbs from both George Will and Barney Frank?—and his argument for the benefits to gay people is based largely on the social discipline he thinks it would impose: once gay men and lesbians are allowed to wed, society can begin expecting them to do so, as it does straight people. “The gay rights era will be over and the gay responsibility era will begin,” he writes. This soft coercion is a civilizing force, because “no other institution has the power to turn narcissism into partnership, lust into devotion, strangers into kin.” We shouldn’t expect results too soon, however: “As with the coming of capitalism to the Soviet empire, so with the coming of marriage to gay culture. Freedom and responsibility take time to learn.” With analogies as inviting as this, one wonders whether snuggling gay lovers ought to take a bus tour of Putin’s Russia before heading to the altar. Though clearly a true believer in matrimony, Rauch doesn’t make it sound like much fun.
The real threat to marriage, he says, is the growth of registered cohabitation, from domestic partnerships to civil unions, which increasingly includes unwed heterosexuals. He warns that we are heading to the day when marriage—straight or gay—will become “merely an item on a mix-and-match menu of lifestyle options, a truffle in the candy box.” For Rauch, whose view of marriage is more medicinal than confectionary, letting gays marry will actually help marriage by relieving the pressure to create alternatives.
What’s undeniable is that the battle over same-sex marriage arrives at a time of declining participation in the institution itself. The number of marriages performed each year in the United States (2.3 million) is as low as it has ever been relative to the adult population. As Andrew Hacker has pointed out, nearly half of Americans reach the age of thirty without having married, and almost twelve per cent of women and sixteen per cent of men enter their forties still never having wed—the highest percentages in the nation’s history.
As the numbers wane, though, the fantasy seems to grow more intense. The wedding industry generates at least seventy billion dollars a year in revenue, which is double the earnings of the movie business. Bridal magazines are some of the most profitable on the newsstand. The ersatz courtship of the Bachelor and the Bachelorette has provided some of the highest-rated television programming in recent years. At the same time, the pressures on the partnership that follows the wedding day are enormous: in an era of low civic participation and high economic insecurity, spouses are ever more relied upon as the sole providers of continuity and human solace. A state-sponsored, lifelong, intimate relationship—or the prospect of it—now carries a heavy and often unbearable responsibility for personal happiness.
What effect will allowing men to marry men and women to marry women have on our peculiarly modern venture of marriage? Proponents typically say that it will have hardly any—that there is no shortage of marriage licenses, and all that will happen is that more citizens and their children will have the benefits of existing family law. The opposition argues that one of the organizing institutions of our society will be imperilled.
History suggests that neither view is quite accurate. Despite comparisons to the repeal of miscegenation laws, no other expansion of the marriage franchise—to the sterile, to slaves, or to interracial couples—has required an alteration in the basic definition of the term: the union of a man and woman as husband and wife. To discount this as mere semantics misses what the definition points up: that marriage, through all its incarnations, has been a procedure that assigns people a new identity based on their gender. For centuries, it has been the ceremony that makes males into husbands and females into wives. Until very recently, this meant a lifetime commitment to both the security and the constriction of a well-defined social role. The symbolic danger that gay marriage poses to such an arrangement is obvious. It alters the public meaning of the word by further draining it of its power to reinforce traditional expectations of behavior. What does it mean to be a husband in a world where a man could have one of his own? This is up to each individual couple, one is tempted to say. Fair enough; but the words we use to describe our relationships are shared cultural property. There is no private language. In this sense, granting the word “marriage” to gay couples will eventually affect everyone.
The mistake is to consider the change in meaning particularly drastic. After all, undoing customary expectations for how a husband and wife behave toward each other has been one of the goals of the women’s movement since its inception. Rather than an abrupt departure, same-sex marriage is the culmination of a larger and ultimately more consequential change in the nature of marital relations between men and women.
Which is one of the reasons that the opposition to it is so fierce. It has come to symbolize what is, historically speaking, radical about contemporary marriage: the decline of the patriarchal legal structure and the rise of the goal of self-fulfillment. Gay marriage is unsettling, to many, not because it departs from modern meanings of matrimony but because it embodies them. ♦
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