Marriage in U.S.: from a yoke that bound to ‘freedom in a chosen space’

REUTERS/Adrees Latif
The function and definition of marriage has been the topic of constant debate and reshaping by courts and legislators since the founding of the United States.

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.  

Nancy Cott
Nancy Cott

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 lawevent@umn.edu.

Comments (11)

  1. Submitted by Ray Schoch on 10/22/2012 - 10:22 am.

    Both civil and religious

    Good piece, Beth. What’s largely been lost in the hysteria over same-sex marriage is that it has a lengthy history as BOTH a civil and a religious institution. The two realms are not necessarily bound together, and in fact, in this country, the Constitution specifically prohibits that sort of intertwining. That makes resorting to Biblical references problematical for whatever side is doing so.

    Oddly enough, after the Supreme Court ruling that polygamy wasn’t protected by the First Amendment (“Nothing so annoys a man unhappily married to one wife as another man happily married to several…” is a line I remember reading years ago in describing the controversy over Mormon polygamy), God apparently spoke to Mormon leaders who wanted to see Utah admitted as a state, and told them that perhaps polygamy wasn’t exactly on His agenda after all. Official Mormon doctrine did an about-face, and voilá, Utah suddenly qualified for statehood.

    • Submitted by Pat Berg on 10/22/2012 - 12:43 pm.

      BTW . . . . . .

      Mormon plural marriage is more accurately referred to as “polygyny” (one husband with more than one wife).

      “Polygamy” is when a spouse of either sex has more than one mate at a time.

    • Submitted by Rachel Kahler on 10/22/2012 - 12:55 pm.

      Legal blackmail

      That polygamy was renounced by the Mormon church was almost certainly a result of legal coercion. In fact, it’s probably all kinds of wrong that polygamy was outlawed. However, another reason polygamy was viewed askance is that it messes up the rules of inheritance and taxes. By stirring up money and religious prejudices, polygamy just had to go. That hasn’t stopped some groups that have since splintered from the main LDS church, though. While not legally married to more than one woman, some men take on multiple “spiritual” wives. In my mind, if all parties involved were treated with proper respect, that would be fine and dandy, but it often happens that that’s not the case (men as well as other women often maltreat women in such groups). And for the purposes of taxes, some groups readily claim welfare benefits because of all the “single mothers” who are, in fact, not single.

  2. Submitted by Lyn Crosby on 10/22/2012 - 01:43 pm.

    redefining marriage

    So much for the pro-marriage amendment claim that marriage shouldn’t be “redefined” – it’s been redefined through history!

    VOTE NO!!

  3. Submitted by Neal Krasnoff on 10/22/2012 - 04:52 pm.

    Marriage

    has always been defined as a union of a man and at least one woman. It has never been defined as anything else in common usage and tradition.

    Delude yourselves as you wish, however, it is a biological objective truth that a same sex couple cannot consummate a marriage and can never procreate.

    • Submitted by Pat Berg on 10/22/2012 - 06:11 pm.

      Always

      And bloodletting was always accepted medical practice to treat fever and disease.

      Right up until it wasn’t.

      Much as conservatives hate to deal with change (it’s implied in the root word of “conservative”, so I guess that should come as no big surprise), the fact is that time marches on and people and civilizations are always finding new and better ways to do things. Or that the old ways are no longer serving them well.

      “It’s always been done this way” does not stand on its own as a compelling argument for much of anything. And certainly not for denying two people who wish to formally commit their love for each other the opportunity for all the same rights and responsibilities as everyone else.

      Just because “It’s always been done this way” does not mean it’s right.

      (Of course, I don’t even agree that “It’s always been done this way” when it comes to contemporary heterosexual marriage, but I just wanted to offer up what a weak argument this has always been no matter what it’s been trotted out in support of.)

      • Submitted by Neal Krasnoff on 10/23/2012 - 12:55 am.

        One last question.

        If you believe Minnesota United’s comprehensive statement “Don’t restrict the freedom to marry”, do you advocate the repeal of Minnesota Statutes 517.02 and 517.03, which “restrict the freedom to marry”?

        • Submitted by Pat Berg on 10/23/2012 - 08:12 am.

          Do you?

          As you wrote above, marriage “has always been defined as a union of a man and AT LEAST one woman” (emphasis mine).

          Interesting little shift on your part there now that you can’t deny at least one of the ways that marriage has been redefined in recent history (nevermind “since the dawn of time”).

          • Submitted by Neal Krasnoff on 10/23/2012 - 04:34 pm.

            I’ll ask the question again.

            If you believe Minnesota United’s comprehensive statement “Don’t restrict the freedom to marry”, do you advocate the repeal of Minnesota Statutes 517.02 and 517.03, which “restrict the freedom to marry”?

    • Submitted by Logan Foreman on 10/23/2012 - 08:44 am.

      a sky high divorce rate

      more “traditional” marriages end in divorce in this country – perhaps you should worry more about the sanctity of marriage rather than the “requirement” to procreate.

  4. Submitted by Greg Kapphahn on 10/22/2012 - 05:19 pm.

    For Those Determined to Use the Christian Bible

    As their point of reference, its clear that, over the history described by the Bible, marriage was redefined many times as well.

    The real issue at hand is what best serves the needs of society today.

    Our “conservative” friends seem convinced (based on the worst kinds of false, bogus, evidence, or the “yuck” factor programmed into all of them by their families, communities and churches)…

    that given the opportunity, ALL of their sons (they’re not so worried about their daughters) will turn gay, marry each other, and the human population will no longer be able to sustain itself.

    Somehow that fact that this has never happened anywhere where homosexuality was well accepted and homosexual marriage, in some form, was seen as normal completely escapes them.

    After this amendment fails, and same-gender marriage comes to be accepted across the US as thoroughly as mixed race marriages are now accepted, the children of those who are now so upset at that prospect will eventually come to see that their fears were groundless.

    Perhaps at that point they’ll finally look in the mirror and start figuring out why the “institution” of straight marriage is falling apart, what role they, THEMSELVES have in its destruction, and what they and their leaders must do to fix those things.

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