What History Tells Us About Remaking Marriage

Opponents of equal marriage rights for same-sex couples say that marriage has always been between a man and a woman and must remain so. They argue from “tradition.” Counter to their claims is an argument from history—a history of change over time.

Many features of marriage that were once considered essential have been remade, often in the face of strong resistance, by courts and legislatures. Economic and social changes have led to increasing legal equality for the marriage partners, genderneutrality of spousal roles, and control of marital role-definition by spouses themselves rather than by state prescription. Yet marriage itself has lasted, despite these dramatic changes. Not only that: it retains vast appeal.

The core of marriage as an intimate and supportive voluntary bond has been preserved. Today constitutional law sees marriage as a fundamental right. Most Americans are legally allowed to marry as they see fit. But same-sex couples remain excluded in most jurisdictions. This exclusion stands at odds with the direction of historical change toward gender equality and neutrality in the legal treatment of marital roles.

A “Civil Thing”
Seventeenth-century English colonists in North America created marriage laws almost immediately upon settling. In England the established Anglican Church ruled marriages, but rather than replicate that arrangement or treat marriage as a sacrament (as Catholics do), colonial legislators asserted that marriage was a “civil thing” because it dealt with matters of property…. Thus even before the American Revolution, marriage was deemed a civil institution, regulated by government to promote the common good.

After the founding of the United States, state after state maintained this principle. State laws allowed religious authorities to perform marriage ceremonies and to recognize only marriages adhering to the requirements of their own faith, but not to determine which marriages would be considered valid by the public…. The states maintain those same powers today, subject to the requirements and protections of the federal Constitution….

Consent is Key
When the United States was established on republican principles, marital households continued to serve a governance function, but in a manner that reflected the novel style of the U.S. government. Sovereignty in the United States was understood to be based on the voluntary consent of the governed. Likewise with marriage—the male-led marital household was legitimized by consent…. After emancipation, former slaves—who had been unable to contract valid marriages because they lacked the power to consent freely—flocked to get married. As free persons, African Americans saw marriage as an expression of civil rights long denied them.

An Instrument of Public Order
The state-generated social and economic rewards of marriage encourage couples to choose committed relationships of sexual intimacy over transient relationships. Along with those rewards for the couple come economic responsibilities for one another that the state imposes in the interest of social order and public benefit.

As government benefits expanded during the twentieth century, so did the economic dimensions of marriage. Today the United States is emphatic in channeling economic benefits through marriagebased family relationships. Social Security payments, benefits for the surviving family of deceased veterans, intestate succession rights, and pension income are all extended to legally married spouses, but not to unmarried partners.

Marriage Changes
Shifting values and the demands for gender and racial equality associated with the civil rights and women’s movements translated into transformations in marriage rules. Many features of contemporary marriage that we take for granted were fiercely resisted at first. Yet they did eventually win out.

Although gender parity between spouses would have been unthinkable at the founding of the United States, marriage laws have moved over time in this direction. In Anglo-American common law.… the wife’s identity merged into her husband’s. She had no separate legal existence. The spouses were assigned opposite economic roles understood as complementary: the husband was bound to support and protect the wife, and the wife owed her service and labor to her husband…. Only in the 1970s did the Supreme Court reject this gender asymmetry as unconstitutionally discriminatory. Spousal benefits have been gender-neutral ever since.

In 1948 the Supreme Court of California, in Perez v. Sharp, became the first state high court to declare race-based restrictions on marriages unconstitutional. At that time bans on interracial marriages were on the books in thirty states. The California high court held that legislation addressing the right to marry “must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.” Over the next two decades, more than a dozen states eliminated their own race-based marriage laws…. Today virtually no one in the United States questions the legal right of individuals to choose a marriage partner without regard to race.

Shifting values and the demands for gender and racial equality… translated into transformations in marriage rules.

The Weight of History
Marriage has evolved into a civil institution through which the state formally recognizes and ennobles individuals’ choices to enter into long-term, committed, intimate relationships and to build households based on mutual support. With the free choice of the two parties and their continuing consent as foundations, marriage laws treat both spouses in a gender-neutral fashion, without regard to gender-role stereotypes.

At least, most of the time. Except in Massachusetts, Iowa, Vermont, New Hampshire, Connecticut, and Washington, D.C., men may only marry women, and women may only marry men. This requirement is an exception to the genderneutral approach of contemporary marriage law and to the long-term trend toward legal equality in spouses’ marital roles.

Those who would maintain this exception argue that the extension of marital rights to same-sex couples would render marriage meaningless. They say that the sexual union of a man and a woman, capable of producing children, is essential to marriage and is its centerpiece.

The history of marriage laws tells a more complex story. The ability of married partners to procreate has never been required to make a marriage legal or valid, nor have unwillingness or inability to have children been grounds for divorce.

And marriage has not been one unchanging institution over time. Features of marriage that once seemed essential and indispensable proved otherwise. The ending of the marital unity doctrine in which the wife was subsumed under her husband’s identity, the elimination of racial barriers to choice of partner, the expansion of grounds for divorce—all fiercely resisted by many when first introduced—have strengthened marriage rather than undermining it. The adaptability of marriage has preserved it.

Nancy F. Cott is the Jonathan Trumbull Professor of American History at Harvard University. This article is adapted from Nancy F. Cott’s expert report submitted in the case of Perry v. Schwarzenegger in the U.S. District Court for the Northern District of California on January 12, 2010.