Marriage, the campaign to amend Minnesota’s Constitution to ban same-sex marriage has repeated over and over, should not be subject to “redefinition.” And particularly not by lawmakers or judges, who have no business inserting themselves into the debate.
“Marriage as the union of a man and a woman has served society well for thousands of years,” states one ad being aired by the pro-amendment group Minnesota for Marriage. “Marriage is more than a commitment between two loving people. It was made by God for the creation and care of the next generation. Marriage is an issue that should be decided by the people. Voting yes secures traditional marriage in the Constitution and ensures only voters can determine the definition of marriage in the future.”
In fact, since the founding of the nation, the function and definition of marriage has been the topic of constant debate and reshaping by courts and legislators. It has a rich history in the United States as a civil institution whose regulation by the government has typically been viewed as in the public’s best interest.
Yet states increasingly have broadened the ability of partners seeking to enter into marriage to define it. “The more that marriage is figured as a free and individual choice — as it is today in the United States — the less the majority can see compulsion to be involved at all,” marriage historian Nancy Cott writes in “Public Vows: A History of Marriage and the Nation.”
The Jonathan Trumbull Professor of American History at Harvard University, Cott is one of the nation’s most prominent experts in the history of marriage. Her testimony and expert reports have been filed in numerous state and federal marriage equality lawsuits and constitutional challenges. On Thursday, Cott will speak at the University of Minnesota Law School.
Christian monogamists were a minority worldwide
In the United States, marriage did not spring organically from an ancient tradition, Cott has written. At the time of the nation’s founding, Christian monogamists were a minority worldwide. And church and secular authorities in Europe, where it was more common, had sparred for centuries over the control of the institution.
The colonists saw the “civilized,” “natural” lifelong pairing of one man and one woman as the backbone of the more perfect union they sought to create, according to “Public Vows.” Like the citizens of the new republic, marital partners would voluntarily enter into a relationship of governance.
Just as an elected regime would rule over its free citizens, husbands would govern the wives who freely consented to the union, the founders believed. Because it would teach the partners to care for each other, marriage would create the kind of citizens needed to build a just and orderly society.
And because it was voluntary, a marriage could be ended, but only provided either spouse could be proven to have violated the state-dictated terms of the contract.
Laws and policies created incentives
As a practical matter, early white Americans often engaged in “self-marriage,” often “self-divorced” and often wed, formally or informally, after a sexual relationship had yielded offspring to care for. Kin and neighbors exercised approval, states and judges set the terms of marriage and divorce and federal laws and policies created incentives.
Much of the history Cott has documented involves government’s effort to assimilate Native Americans, emancipated African-Americans and immigrants by pushing them into Christian monogamy. While marriage conferred status and privilege on white men, it was unavailable to those who were already subject to legal domination by another.
Native American men were offered citizenship, for instance, by agreeing to become legal heads of monogamous households. And slaves could not marry without their owners’ consent. Like women, blacks “flourished best where they were guided and protected,” it was said. Once slaves had been freed, the Freedmen’s Bureau worked to push blacks into civil marriages.
To boost rates among all groups, cohabiting frequently was made an offense. In the 1870s, “reformers” sought to lower divorce rates by eliminating “self-marriage.” If the institution was harder to enter into, they believed, it would raise the bar for the partners.
Tug of war with the Mormons
The most fascinating segment of Cott’s history involves the government’s tug-of-war with the Church of Latter Day Saints over plural marriage. Polygamy, the U.S. Supreme Court eventually ruled, was not protected by the First Amendment because the Constitution protected religious beliefs, not actions in violation of the social order.
“Public Vows” was published in 2000, before modern-day Mormons became some of the staunchest financial and political supporters of campaigns to oust elected officials and judges from the struggle for control of the terms of marriage by amending state constitutions.
Writing 12 years ago in the immediate aftermath of the passage of federal and state Defense of Marriage acts, Cott noted that the then-incipient debate over same-sex marriage could in fact be analogized to the state of civil marriage in the 1700s and early 1800s, where there were laws on the books but the validation of any particular marriage came from communities.
But the modern discourse puts lawmakers in the tough spot of wanting to preserve their power while not admitting that they, “rather than nature or God,” control the terms of marriage. “They have tried to have it both ways with marriage in political discourse,” Cott asserted. “Picturing it as a rock of needed stability amidst eddies of change, while also acting to define and redefine marital obligations.”
‘Freedom in a chosen space’
And as the definition of marriage has changed — and as privacy has come to be part of that definition — so has its public image. Once cast as a yoke that bound the partners, it is now viewed as “freedom in a chosen space — a zone marked off from the rest of the world.”
Indeed, with marriage rates falling, the “contestation over same-sex marriage has, ironically, clothed the formal institution with renewed honor.”
Part of the Ronald A. and Kristine S. Erickson Legal History Lecture series, “Marriage in the Courts” is free and open to the public. Cott will speak at 4 p.m. at the law school’s Mondale Hall. RSVPs are requested to (612) 626-5984 or firstname.lastname@example.org.