Marriage
Marriage seems to be an ordinary fact of life, not a contested concept. In US culture, however, the term “marriage” has pointed to two simultaneous but incompatible functions. As a component of US kinship law, marriage sanctions particular sexual alliances from which property relations are determined. It thereby defines a sphere of protected sexual and economic interests whose exterior is marked by sexual “deviants.” Yet as an aspect of modern emotional life in the United States, marriage is also the ideological linchpin of intimacy—the most elevated form of chosen interpersonal relationship. At the core of political debate and much critical debate in American studies and cultural studies is the question of whether marriage is a matter of love or law, a means of securing social stability or of realizing individual freedom and emotional satisfaction (Graff 1999). These have become national questions; marriage seems so tied to collective national identity and democratic practices that many US Americans view it as an expression of patriotism, as indeed has been the case from the eighteenth century onward. This linkage is more than rhetorical. As well as structuring sexuality and gender, marriage law undergirds US citizenship because it is implicated in the property relations, racial hierarchy, immigration policy, and colonialist projects that have determined national membership (Cott 2000).
Historically, the institution of marriage has been regulated by both church and state, a merging partly responsible for its contradictory meanings. Christian scriptures stipulate that marriage makes a man and a woman into “one flesh.” But Christian marriage also takes place within a larger, communal body of Christ whose members are united by spiritual bonds rather than the property relations of aristocratic families. Protestants, in giving governments control over marriage in the mid-sixteenth century, secularized it, elevating the couple as the primary social and economic unit. The burden of caretaking then shifted from Christian communities, aristocratic paterfamilias, and the government to spouses and parents. As a result, legal issues (the loss of institutionalized provisions for the economically distressed) were reconfigured into emotional ones (family feelings). Western European popular culture eventually solidified this ideological triumph of love over law and property (Coontz 2006). The literary genre of the domestic sentimental novel, emerging in the eighteenth century, secularized the Christian image of a couple embedded in and figuring a community bound by love rather than terrorized by hierarchical class relations or, later, legal interference (Barnes 1997).
In England and its American colonies, the conflicting functions of marriage became implicated in questions of nationhood beginning with a clash in Enlightenment political theory. Following Sir Robert Filmer ([1680] 2017), the male-headed, hierarchical Puritan household was considered an arm of the government. Later colonial and Revolutionary-era thinkers, however, adhered more closely to John Locke’s doctrine that the private “voluntary compact” between a man and a woman historically preceded and provided the basis for democratic relations in the public sphere while remaining separate from it (Locke [1690] 1988, 43; Norton 1996). This ideal of consensual, private marriage suffused Revolutionary rhetoric in the eighteenth century (Fliegelman 1982). Thus the founders of the United States saw marriage as a template for the ideal society, in which a people freely consented to leadership rather than submitting to a hierarchy (Cott 2000). Intimacy, as they imagined it, would mirror kinship; love would meet law and even prefigure it. Correspondingly, marriages in the new republic were seen as rehearsals for or reenactments of a proper citizenship grounded in family feelings (Kerber 1980).
One problem with this use of marriage as a figure for liberal democracy was that marriage has long structured the asymmetrical power relations that constitute gender. The unwritten spousal contract, most visible in nuptial vows and suits for divorce or separation, assigned economic support and physical protection to men. In exchange, women’s duties included sexual intercourse, childbirth, housework, and child rearing. Thus the term “marriage” also implied patriarchy, for men controlled the economic and physical well-being of their wives and children. It implied domesticity for women, who exercised their power in the home only. But this contract was not actually drawn between two legal individuals (Pateman 1988). Following the common laws of England even after the Revolution, US women who married were femes coverts, with no legal existence independent of that of their husbands (Hartog 2000). Women could not own separate property, keep their earnings, sign contracts, or vote to change this system. In these and other practices, men and women were considered as one, and the one was the husband. Debates in American studies about marriage were prefigured by early republican writers who analogized coverture and political tyranny. “Remember the Ladies,” wrote Abigail Adams ([1776] 1988, 10) to her husband. “Do not put such unlimited power in the hands of the Husbands. Remember all men would be tyrants if they could.”
Analogies between marriage and other forms of political inequality continued in the abolitionist era and beyond, as white feminists equated wifehood with slavery (Sánchez-Eppler 1993) and African American writers represented slave marriages as superior to legal marriage (Chakkalakal 2011). Until the 1970s, the cultural expectation of husbandly economic support in exchange for wifely domestic support removed middle-class women from the workforce and provided uncompensated labor for working men and the institutions that employed them. As feminists eventually argued, marriage creates domestic labor, the unpaid work of women who process raw materials for workers’ consumption and socialize children for the workforce (Delphy 1977). Socialists argued that marriage further bolsters the system of capitalism by keeping profits in the private family (Engels [1884] 1972). It turns wealth into a matter of inheritance rather than lifetime accumulation, preventing redistribution to a larger public and thereby enforcing work for pay among the propertyless class. Yet the Protestant legacy has meant that marriage is also viewed as an individual solution to poverty—far preferable, for conservatives, to a welfare state. In 2003, for instance, the US Congress passed a bill (H.R. 4, the “Personal Responsibility, Work, and Family Promotion Act of 2003”) mandating that every state receiving welfare funds establish objectives for promoting marriage (Onwuachi-Willig 2005).
Still, to speak of marriage as a form of slavery, or even as an essential feature of market capitalism, fails to address its racial politics. From the colonial era onward, marriage law served as a means of securing white dominance. Slaves could not marry, free black people were legally forbidden to marry whites in many states from the 1660s to 1967, and rights to inheritance were denied to the black partners of whites and their children (Saks 1988). One effect of this history was that many African Americans saw the right to marry as fundamental to achieving full citizenship. After the failure of Reconstruction, black fiction writers often used the sentimental marriage plot to allegorize the civil justice they had been denied (Tate 1992). But not all African Americans have taken marriage to be a sign of or path to freedom. When in 1865 the Freedmen’s Bureau insisted that all former slave unions be legitimated by license or ceremony, some freedpeople, especially women, declined to register their unions (K. Franke 1999, 2019). A century later, when the infamous report on the black family by Daniel Patrick Moynihan (1965) appeared, it blamed the social woes of African Americans in part on “matriarchal” households in which unmarried women were the primary or only breadwinners. This interpretation of African Americans’ kinship structures racialized, gendered, and sexualized poverty, setting the stage for the welfare reforms of the 1980s and beyond (Lendhardt 2015).
The racial politics of marriage have also inflected its role in colonial projects within the United States as well as in the nation’s immigration law. By legitimizing, promoting, and protecting the monogamous heterosexual relationships of citizens and automatically extending citizenship to those born within them, nation-states make national belonging seem a matter of nature and not law. Marriage legitimates birthright, which trumps mere residence as a means of access to citizenship (Stevens 1999). In keeping with the Protestant outlook that marriage was a foundation for civic order, European settlers in the colonies persecuted Native Americans in part because their kinship systems and sexual practices sometimes included polygamy, easy divorce, and premarital sex (Rifkin 2011). In the Dawes Act of 1887, the government allocated plots of land to Native Americans using Anglo, not indigenous, kinship as a grid. And once the federal government took full control over immigration in 1891, marriage became a means of excluding racialized groups from entry or permanent resident status in the United States. Asians, for instance, were often excluded under laws barring polygamists and prostitutes from entry (Luibhéid 2002). Even since the lifting of racial quotas, immigrants have had an easier time entering the United States as monogamous heterosexual partners than as laborers. The laws currently linking marriage explicitly to citizenship, known as family reunification laws, have their precedent in a 1907 statute mandating that the nationality of a US American woman follow the nationality of her husband (Cott 2000). Although this law was repealed in the 1930s, it provided a blueprint for the preferential treatment of foreign spouses over other immigrants.
While for the federal government marriage provides the very architecture of citizenship, the individual states have generally had jurisdiction over marriage. Thus federal law has only rarely intervened positively to define marriage or to prohibit particular kinds of marriage between free people. The first of these interventions occurred in 1862, when Abraham Lincoln signed the Morrill Act prohibiting polygamy in the territories. In 1890, the Mormons were forced to give up polygamy as a condition of statehood for Utah. In 1967’s Loving v. Virginia, the Supreme Court ruled that state laws against interracial marriage were unconstitutional, also citing due process, ending race-based legal restrictions on marriage. The next federal intervention was the Defense of Marriage Act, signed by Bill Clinton in 1996. In 2013, the Supreme Court held in United States v. Windsor that the Defense of Marriage Act was unconstitutional; in 2015, it held in Obergefell v. Hodges that, under the equal protection and due process clauses of the Fourteenth Amendment, all states are required to license same-sex marriages and recognize marriages contracted in other states. The theocratic, Christian aspect of federal interventions remains in the prescription that lawful marriages must be monogamous.
The historical power of marriage as a guarantor of gender identity and sexual hierarchy, a paradigm of democratic consent, an island of economic security, a mechanism for racial solidarity, and the scaffolding of citizenship itself explains continuing debates over the meaning and function of marriage (Duggan 2004). Despite strong federal interventions that have established legal marriage as monogamous and/or heterosexual on the one hand and free from restriction on the basis of race or open to same-sex couples on the other, the US right has continued to protest that marriage cannot be “redefined” (Mohler 2015). In one sense, this is true. Despite the constitutional separation of church and state, the Protestant model of monogamous, economically interdependent, heterosexual marriage has historically been a prerequisite for belonging to “America,” not only in the broad senses outlined above but also insofar as marriages contracted outside the United States are only lawful in the United States if they follow US marriage law. More recent developments suggest that US conservatives are still working to ensure the primacy of so-called traditional marriage, especially in order to limit immigration. The International Marriage Broker Regulation Act of 2006, which requires background checks for sponsoring marriage visas and limits visa applications to no more than two within a ten-year period, protects against “mail-order marriage” fraud, but it also casts foreign women as victims of trafficking (Constable 2012) and insists on duration as the sign of a real marriage. The US Department of State currently treats children born to same-sex couples abroad as children born “out of wedlock” and thereby as noncitizens, if the parent to whom they have a biological connection is not a US citizen, even when that parent is married to a US citizen; in effect, same-sex married couples of different citizenship statuses bringing children into their family while abroad cannot necessarily confer citizenship to their children (Adams 2019).
Merely giving same-sex couples access to the term “marriage” as a means of describing and authorizing their relationships has not prevented the state from invalidating nontraditional families. Feminist and LGBT studies scholars and activists continue to argue for a more complete separation between marriage and the state (Metz 2010; Baltzly 2014). Other critical tasks ahead include asking what hierarchical institutions marriage serves or is implicated in, perhaps most urgently at the moment of this writing anti-immigration policy. At the same time, we must look beyond marriage and couplehood by working to democratize support for the diverse household structures, caretaking arrangements, and emotional bonds that organize people’s lives (Polikoff 2008; Brake 2012; Chambers 2017).
(Special thanks to Bethany Qualls for her research assistance.)
2007/2020