In recent years, the appropriation of marriage as a tool used drive partisan passions into the red has seen frequent deployment. Whether it be Bill Clinton signing the Defense of Marriage Act in an attempt to shore up conservative and independent voters or the Republicans use of gay marriage to whip up their electoral base, marriage remains an issue of primary concern to many Americans. As a private ritual but public institution, marriage, the benefits it delivers, and the legal status it provides, encompasses private experiences and public policies. It also shapes ideas about gender and race. In Public Vows: A History of Marriage and the Nation, Nancy Cott explores the ramifications of marriage law in both these areas.
Cott begins by pointing out marriage’s influence on America’s broader conception of gender, “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.” (3) This has proven equally true in terms of skin pigmentation as well, “marriage has also been instrumental in articulating and structuring distinctions grouped under the name of “race”.” (4) Public policies have prohibited marriages between different races, banned polygamy, and encouraged specific models of matrimony. Moreover, in a nation that historically has been heavily dependent on immigration, the citizenship it provides increases its centrality to American identity as Cott notes, “when 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.” (5) Shaped by three levels of public authority (community of kin, friends and neighbors, state legislators and judges, and federal laws, policies and values), intraracial monogamy proved the form the nation most closely adhered. As Cott suggests, marriage policies hold the power to craft the cognitive possibilities while also policing its borders, law and society stand in a circular relation social demands put pressure on legal practices, while at the same time the law’s public authority frames what people can envision for themselves and can conceivably demand.” (8)
The centrality of marriage in the nation’s conception of itself dates to the revolutionary period as “rebellious colonists” employed rhetoric conflating the colonies relationship to Britain through parent-child and husband – wife analogies, “When the colonies declared independence and joined together in a new nation, a marital metaphor became far more compelling than the parent-child reference so serviceable to interpret empire and colony.” (15) The need for a virtuous citizenship that the founders believed so necessary for a successful republic placed faith in sociability’s success in generating “the most reasonable and humane qualities” in citizens resulted in “American republicans” establishing marriage as “a training ground of citizenly virtue.” (18) The connection between this idea and Linda Kerber’s republican motherhood seems clear. Even from the nation’s earliest stages, the republic sought to organize women’s and men’s spheres of influence. For women, marriage and Republican motherhood imbued them with a responsibility of reforming men’s rougher edges while instilling virtue into their children. Cott notes John Adams, like others, placed a great deal of trust in domesticity’s ability to influence citizenry, “the foundations of national morality must be laid in private Families” (21)
The importance of domestic life depended on American loyalty to monogamous partnerships. Increasingly, leaders conflated monogamy with “government of consent, moderation and political liberty.” (22) In contrast, the harem and other non-monogamous forms of intimacy became associated with lack of consent and tyranny, as Cott summarizes, “the thematic equivalency between polygamy, despotism, and coercion on the one side and between monogamy, political liberty, and consent on the other resonated through the political culture of the United Sates all during the subsequent century.” (23) Interestingly, one can identify the importance of consent or at least the appearance of, in not only domesticity but also labor. Moon Ho Jung’s Coolies and Cane: Race, Labor and Sugar in the Age of Emancipation illustrates Cott’s point, as the disputed contractual status of Chinese laborers caused many Americans to reject their presence within the US workforce. Though clearly Jung juxtaposes the rejection of Chinese labor during slavery with its brief acceptance (by many of those who initially opposed it, many of whom happen to be former slaveholders) during emancipation. Many American observers remained ambivalent or hostile to Chinese labor as it seemed neither free nor slave, but bounded, still as Moon points out, “Characterized as slaves and immigrants, rebellious and docile, male and effeminate, and neither black nor white, coolies were thrown back into the netherworld between slavery and freedom during the Civil War. The indeterminacy of their status was an opening that Louisiana planters would exploit in their drive to establish … what would be slavery ‘under some other name’”. (Jung, 72)
This emphasis on a contractual monogamous relationship was not necessarily the dominant form of intimacy of the time, rather it existed with several others forms of cohabitation that exhibited equal levels of cultural support, yet Americans chose to naturalize marriage and monogamy. Native American practices thus scandalized whites, “To Christian settlers, missionaries, and government officials, Indian practices amounted to promiscuity … to government officials, the native American marriage system represented unintelligible foreignness.” (25) In order for native Americans to be reformed into citizens these practices must be changed. Undoubtedly, racial and gender considerations played a role as marriage to a white man might provide “civilization to a native American woman, but the reverse was not so clear cut, “[government officials] envisioned it as a prerogative of white men, and said nothing about Indian men marrying white women.” (27) The importance of marriage regarding native American populations took on increased saliency as the U.S. expanded into traditional indigenous territory. Marriage law enveloped rights of citizenship and property, while rejecting tribal memberships. Still, though the federal government provided incentives, Cott goes to great lengths to illustrate the power of both state government and the “informal public” in shaping marriage law.
For Cott, the “informal public” consisted of “family, kin, and neighbors [who] exercised practical control of marriage formation, preservation and termination. The local community had far more access to the circumstances of ongoing households and relationships than law enforcement officers … the informal public exercised the forces of approval or condemnation that shaped prospective and married couples behavior.” (29). More recent works such as Ariel J. Gross’s What Blood Won’t Tell: A History of Race on Trial in America (2008) draws similar distinctions regarding nineteenth century citizenship and race. For example, if the “informal public” determined the acceptability of cohabitation or marriage, similar processes appear regarding local and national membership. Gross points out that citizenship was as much performative and derived from local associations as it was enforced by documentation, “in other words, race by association – the children’s ability to socialize with and marry white people – trumped any other sort of physical or documentary evidence.” (Gross, 96)
The dependency on local associations seemed to outweigh other considerations as scholars like William Novak have also pointed out. Not until the post Civil War period did the federal government begin to exert greater influence in determining citizenship. Cott acknowledges that state law and court decisions often trumped the “informal public” but “over much the underpopulated American landscape”, local relationships provided final say on the legitimacy of a coupling. (30) Informal marriages as well received approval in this way, “neighbor’s awareness of the couple’s cohabitation and reciprocal economic contributions figured a great deal in establishing that a marriage existed between a man and woman, but consent was the first essential.” (31) Eventually, this led to state policies recognizing “self marriage” but did so in a way that “incorporated a particular definition of “matrimony” and its “duties and obligations” …state authority … widened the ambit of its enforcement of marital duties. By crediting couples’ private consent, the law drew them into a set of obligations set by state law.” (40) Predictably, under this rubric, interracial marriages were not included. In fact the English colonies emerged as the first “secular authorities to “nullify or criminalize intermarriage on the basis of race or color designations.” (41) Still, it only outlawed intermarriage not sexual relations. In fact, one might argue using evidence from Hannah Rosen’s Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Post Emancipation South that many Americans could tolerate sex between races but not a formal relationship or commitment. In the 1866 Memphis Riot, white vigilantes targeted those with established interracial relationships as one white women married to a black man had her home torched and her person threatened, “When Mrs. Bankett attempted to go into the burning house to save some of her possessions, the men threatened to set her ablaze. The symbol of legitimate interracial relations and family, the Bankett’s home, went up in flames.” (Rosen, 74) The reverse proved true as well, a white man with a black woman provoked hostile reactions as Rosen documents, “needless to say, a white man having sexual intercourse with a black women did not, in and of itself, disturb Edmunds or the men who attach Egbert. Rather, their objection stemmed from the legitimate – as opposed to exploitative and illicit – appearance of this relationship, his regular, live in relationship with this woman, one that appeared as a marriage and accorded her certain status and identity as ‘respectable’ and thereby suggested a post emancipation world in which racial hierarchies might be undermined rather than reinscribed, earned him the rioters’ wrath.” (Rosen, 75) In this way, Cott suggests, interracial marriages proved more possible before the Civil War than after it, “during the antebellum era the couple’s exceptional relationship could survive, because it could not realistically challenge the ruling public order of racial slavery.” (45) After the Civil War, such couplings threatened ideas about “social equality” between whites and minorities.
During the nineteenth century, legislators did expand divorce and property laws, but they did so in ways that reaffirmed gender roles within marriage. For example, if a wife petitioned for divorce the courts required her to illustrate “how attentive, obedient, and long suffering she had been” while remaining sexually faithful to her husband. She had to illustrate her victimization at his hands, while his reciprocal obligation consisted basically of economic support. Women’s helplessness in the gendered labor markets made them permanent dependents such that in some southern states judges awarded alimony to guilty wives in acknowledgment that “as a result of coverature she would have no assets of her own to live on. These grants kept in place the assumption that wives were dependents with disabilities, husbands their supporters.” Building on this Mary Odom among others, has noted that to nineteenth century families, largely as result of women’s inability to secure living wages, daughters were seen as drags on the family economy, until they could work as domestic servants, factories, or as prostitutes. Thus, through many if not all stages of life both legally and socially, women suffered dependency status, which as, Christine Stansell noted in City of Women: Sex and Class in New York City, 1789 - 1860, manifested itself in a misogynistic hostility between working class men toward their female counterparts. While changes in law expanded women’s status somewhat, Cott carefully draws attention to the fact that legislators used these reforms to highlight “the voluntary nature of marriage …. as essential in its political definition as were the fixed roles of husband and wife.” In an increasingly contractual society, consent proved deeply important.
During, before, and after the Civil War, marriage emerged once again as a central aspect of society and governance. As the sectional conflict increased in the decades before 1861, marriage laws appeared in the rhetoric of both abolitionists and pro-slavery forces. If abolitionists decried slavery’s forced break with monogamy (the breaking up of families, the refusal to legally acknowledge slave marriages thus making them illegitimate), then slaveholders celebrated the master-slave relationship as similar to that of husband and wife, “the southern elite believed that God and nature intended women to be the subordinates in marriage … both women as a sex and blacks as a race flourished best where they were guided and protected, it was said.” (61) Scott claims the abolitionist debate encouraged women’s rights advocates to push harder for increased marriage rights not only regarding control of property but also their bodies. Lydia Maria Child and Sarah Grimke among others portrayed marriage as slavery, even a women’s body belonged to her husband in the sense many viewed it to be the wife’s obligation to “consent to every one of her husband’s sexual initiatives regardless of her desires.” (66) Considering the dangers of child birth and the risks of contracting syphilis and other such illnesses via her husband, wives had very pragmatic considerations.
Slavery found itself utilized in condemnations of Mormon polygamy. Polygamy achieved what few other issues could, unity between abolitionist Republicans and pro-slavery Democrats. Polygamy’s apparent connection to despotism and tyranny resulted in widespread Congressional opposition to its practice in Utah. Popular culture, Cott points out, viewed it sensationalisticaly as well, equating polygamy with “political tyranny, moral infamy, lawlessness, and men’s abuse of women; monogamy in contrast represented national morality and lawful authority.” (73) Additionally, slaves marriages were not recognized by law and had to accommodate hardships marriages between free persons did not, thus, abolitionists frequently presented such behavior as polygamy.
When slavery did end, legislators passed the 13th amendment but never removed women from subjugation. Moreover, Union officials and the Freedmen’s Bureau never considered freedwomen as citizens, rather their citizenship, like those of white women, flowed through men. As Elsa Barkley Brown has noted, freedwomen considered themselves active participants in citizenship. They illustrated this “communal citizenship” in their participation in civic discussions, supporting and policing voting, and providing aid to those attempting to vote. White observers who noted these women as disruptive fundamentally misunderstood freedpersons’ perception of their relationship to voting rights. In the face of such collective understandings, the Bureau promoted nuclear families with male led households. Marriage was not only encouraged, but sometimes coercively applied. Some states granted slave marriages legitimacy. While many freedpersons wished to marry, both for personal reasons in relation to their partner but also as a sign of equality and citizenship, others hoped to return to previous loved ones from whom they had been separated. The political rights imbued in marriage came across clearly to white southern opposition. As states passed various laws banning intermarriage, later these laws became pillars of the states’ rights ideology.
Other historians have explored the role of the Freedman’s Bureau in regard to marriage and domesticity. Rebecca Edwards (“Domesticity versus Manhood Rights – Republicans, Democrats and Family Values Politics, 1856 – 1896” in The Democratic Experiment: New Directions in American Political History) supports much of Cott’s argument, pointing out that Republicans “introduced policies to support husbands and fathers as breadwinners,” she adds that “they used state payments as substitute for certain absent or incapacitated men. They sought to control male and female sexuality, reflecting their desire to ‘protect’ good Christian women and discipline male irresponsibility.” (Edwards, 176) According to Edwards, the protection and reshaping of the black family occupied the central concerns of officials. The agency issued “’marriage rules’ that listed the ‘duties of husbands’ and the ‘rights of wives and children’.” (Edwards, 179)
American continental expansion required the incorporation of two peoples that American policymakers held deep prejudices against, Mormons and Native Americans. As Cott points out, the discourse of civilization had been employed as a linear model delineating a people’s progress. Polygamy placed a people in the earlier stages of this model under barbarism. Moreover, coinciding beliefs such as evolutionism and racial taxonomies led to “couching gradations of civilization in terms of race or color.” (117) Under this paradigm, Mormons occupied non-white racial categories. Congress passed a federal law that banned even “marriage like” cohabitation with more than one partner at a time and stripped the voting rights of anyone found guilty of violating the law. Mormon women struggled under the typical stereotypes of women living in “barbarous” societies, “’Heathen’ women were routinely portrayed as ignorant, degraded beasts of burden, overworked slaves to men, servicers of male lust.” (116) Native American women also operated under such false assumptions as did most of the female populations living under American imperialism. US policymakers viewed Native Americans much like Mormons in that in order to be absorbed into the American body politic, they must settle down into farming and monogamy. The Dawes Act funneled citizenship and property through the head of the household, often a man, thus like the Freedman’s Bureau before it, “the government meant to prepare Indian males for citizenship by making them heads of households, legal husbands, and property owners …” (122) The Dawes Act crippled native American unity, deprived tribes of millions of acres of land, and “subverted native American women’s roles as agriculturists by presuming the Indian male should be the landowner and farmer.” (123) Edwards concludes similarly observing that Republicans hoped to “promote the domestic family as an economic unit,” while simultaneously “reconstructing Indian manhood and womanhood.” (Edwards, 184). In contrast to Cott, Edwards distinguishes between Republicans and Democrats, suggesting that Democrats “rejected the idea that government should enforce or encourage any particular model of marriage.” (Edwards, 186) However, the Democrats embraced what Edwards labels “manhood rights”, which left the decision of family structure or model up to the male head of the household. Edwards clearly identifies anti-polygamy legislation with the Republican Party of the period.
Much like Native Americans, Mormons, and freedmen, immigrants presented the possibility of new citizens, as such marriage policies exerted as significant influence on “the body politic” as immigration law. Like freedpersons and Native Americans, immigrant men would have the opportunity to become the “political representative of his wife and minor dependents, and correspondingly [render] her less than a fully empowered citizen.” (133) Increasingly laws stipulated that women’s citizenship flowed threw her husband. The idea of consent also grew in influence as the perceived non-consensual nature of Chinese female immigration contributed to both the Page Law of 1875 and the Exclusion Act of 1882. Though the exclusion act resulted from the perceived liminal status of Chinese laborers between slave and free, Cott notes the central role the concept of consent played in 1800s, “Freedom of choice in national allegiance, marriage, and work mirrored one another, forming a united whole in American national values in the late nineteenth century.” (134) Since it associated marriage with true love and consent, the “rhetoric of coercion” helped condemn groups to marginalized status. Arranged marriages, picture brides, and prostitutes all became anathemas to American “civilization”. Literacy tests were only relevant for the man head of the household, his literacy covered his wife and children. In this way, Cott argues, Congress “installed the understanding that a man’s role and rights as husband and father were part of his citizenship. “ (142-3) Before the Cable Act of 1922 (and even then there were stipulations), even native born women lost their citizenship if the man they married hailed from another nation. The wife could only regain her American citizenship if her husband naturalized. Of course, marrying anyone of Asian descent disqualified a woman from American citizenship all together since Asians were then deemed ineligible for national membership. Men faced no such restrictions.
Post WWII America did represent broad changes in sexuality, conceptions of marriage, and interracial marriages. First, American sexual mores changed. Elizabeth Alice Clement’s Love for Sale: Courting, Treating and Prostitution in New York City, 1900-1945 describes this shift, as sexual activity before marriage became far more accepted. As others have noted, military service provided sites for gay service personnel to develop group allegiances and identities. Demographic changes such as the accelerating Great Migration brought new racial populations to western parts of the nation. The California Supreme Court struck down the state’s ban on interracial marriage in the 1948 case, Perez v. Sharp. Finally, American overseas commitments resulted in interracial couplings between white men and Asian women, which subsequently led to the passage of the War Brides Act 1945 and the Soldiers Brides Act 1947, legitimizing these marriages. However, even with these changes, women’s economic and social situations remained circumscribed by marriage policies.
The return of veterans to the home front meant that women occupying jobs previously held by men suffered unemployment. Numerous authors from Karen Anderson (Wartime Women) and Lizabeth Cohen (A Consumer’s Republic) have outlined how the reintegration of veterans into the economy subordinated women’s status, while reserving the benefits of service for men. Congress also passed a marital tax privilege encouraging couples to marry for tax reductions. However, the joint filing category contained a gender bias that valued men’s work over women’s, taxing the secondary earner at a higher rate.
By the twentieth century’s conclusion marriage laws had undergone significant revision. They no longer ceded “bodily possession of the wife” to her partner, other developments including “no fault divorce”, acknowledgment of “marital rape”, and the dismantling of the fiction of marital unity resulted in what Cott suggests some may contend “by the 1980s the states and the nation had let go their grip on the institution of marriage along with previous understandings of it..” (212) However, these changes have been challenged by the New Right and the mantle of “family values” and free market individualism . Fears concerning homosexual marriage were harnessed by New Right leaders to effect electoral and legislative politics as evidenced by the aforementioned passage of the Defense of Marriage Act. Likewise the Personal Responsibility and Work Opportunity Act (PRWO) placed significant emphasis on marriage as a means to reinforce “normatively the husband’s and father’s responsibility to support his dependents.” (223) The private lives of the poor now became the subject of state oversight. Undoubtedly, marriage remains a central aspect of the American identity. Recent battles over California’s Propostion 8 referendum serve as only one example. Yet, this also gets to one of Cott’s main arguments, that marriage in itself only became the natural means of ordering relationship through public policy. Its presentation as a naturalized form of human interaction unfolded as that nation’s architects and subsequent leaders consciously imbued marriage with gender roles that subordinated wives, promoted nuclear domesticity, and conflated it with freedom, consent, and democracy. Several gay rights advocates have suggested that emphasizing the right to marriage continues to privilege matrimony unfairly over other forms of human relationships. Still, regardless of how one feels about marriage’s centrality to the American experience, the legal and civic benefits that individuals derive from the institution remain undeniable.