Marriage, Sexuality, and Gender

Robin West

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317256311
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Soziologie

Marriage, Sexuality, and Gender examines contemporary debates about the meaning and value of marriage. The book analyzes arguments for traditional marriage, including those of neonaturalists, utilitarians, and communitarians or virtue theorists. The volume also considers a range of feminist, welfarist, and liberationist arguments for ending the institution altogether. It evaluates two major reform movements: one focused on expanding marriage to include same-sex couples and the other focused on the use of law to render marriage more internally just. The book concludes with a plea to activists to redirect "marriage equality" movements toward the creation of an entirely secular "civil union law" that would respect a broader range of private life-long commitments, including but not limited to same- and opposite-sex couples, without threatening the role of religious marriage in the lives of those who embrace it and without penalizing nonparticipants.

CHAPTER ONE

A Look in the Rearview Mirror

With the help of contemporary historians’ analysis and hindsight, we now know that the well-propagated metaphoric promise made by the institution of marriage at the mid-twentieth-century mark to individual participants embarking on adult life—its promise to deliver some measure of meaning, comfort, and financial security—was many times honored only in the breach.¹ Institutional marriage broke its promises to its participants more often than was acknowledged at the time, and more often than our current nostalgic embrace of the simplicity and traditionalism of that era cares to notice. In Professor Stephanie Coontz’s provocative turn of phrase, this image of mid-century, traditional marriage, held as an ideal then, and held by some as an idealized counterpoint to today’s uncertainties now, is nothing more than a rose-colored picture of “the way we never were.” In her authoritative history of the era by that title, Coontz argues that for many married people of the post–world wars generation, marriage did not constitute a safe financial or emotional haven against hardship, or enrich the lives of those who participated in its strictures.² Marriage, at mid-century, Professor Coontz argues, was in fact a poor substitute for the communitarian safety net that to a considerable extent it displaced.³ For poor people especially, as individuals came to rely on marriage, rather than community, to meet their needs, those individuals became poorer, and more isolated, and in many ways more vulnerable.⁴ Marriage did not, Coontz argues, guard the impoverished individual against risk or poverty. Oftentimes it exacerbated it.

Likewise, married life in 1950, for many, was characterized not by harmonious accord, but by hierachic command on the one side and obedience on the other, sometimes enforced through unrecognized, unnamed, and unaddressed domestic violence, and in an atmosphere of considerable internal strife.⁵ That violence, although plenty real within marriage, was almost entirely invisible to the larger society. By 1950, neither the neutral-sounding phrase “domestic violence” nor the more explicit label “wife abuse,” had become a part of the working vocabulary of men and women in either law enforcement or prosecution.⁶ Domestic violence was not a part of family law or marriage law courses taught in law schools. Nor was it taught, or for that matter mentioned, in criminal law classes.⁷ By the early 1960s, physical violence between husbands and wives was becoming a part of the banter of situation comedies and late night comedic monologues on television, but the violence itself was nowhere on the public agenda, whether as a social, legal, or political problem.⁸ The phrase “marital rape,” and the possibility of forced and violent sex between a husband and a nonconsenting wife, was if anything even more invisible. It was, in fact, an oxymoron: neither a crime, nor a conceptual or logical possibility. “Rape” virtually everywhere, at the time, was defined as forced, nonconsensual intercourse with a woman not one’s wife.⁹ Thus, while men obviously could and many men did force their wives to have nonconsensual intercourse, that violence could not possibly have been understood by either party as a criminal act. As a consequence of all of this, many married women at mid-century lived in a very peculiar institution, in which rules and obligations were enforced not by moral duty or mutual understanding, but by an invisible, entirely privatized use of force that was neither identified as such, nor countered by any pacifying influence. For these women, 1950s marriage did not deliver on its promise of companionate intimacy. It was a surreal, lamppost-lighting twilight existence, inducing physical trauma and mental breakdown.

Nor did marriage of the post–World War II years come through on its promise of enriching the meaning of even its most privileged and safest participants’ lives. In a story now often told, by the end of the 1950s, many of the overeducated and underemployed wives in the most financially secure marriages were experiencing a more general and yet to be named ennui—a lack of fulfillment and a frustration that would eventually bring forth a powerful rebirth of feminism. As described by Betty Friedan in her blockbuster exposé of married life, The Feminine Mystique,¹⁰ the institution of middle-and upper-class marriage as it was then constructed infantilized women by truncating their intellectual and leadership capacities. A wife, Friedan argued, living in the middle of this mystique, lived in an altered, gauzy reality of boredom and inactivity, punctuated by the overriding imperative needs to tend to children, and to fulfill the wishes of a dominant spouse for domestic pleasures and sexual fulfillment—a spouse who could not possibly, by this unstated pact, view his wife as his equal.¹¹ She was, after all, by virtue of their marital roles, suited for, as well as limited to, domestic work that was repetitive, nonremunerative, dull, unchallenging, and uncelebrated. A person suited for such work, and rendered totally economically dependent by virtue of it, must be herself, dull, unchallenging, and uncelebrated, more like a house servant, or perhaps a child, than a partner. For women in traditional marriages who found the work of it neither worthy of respect nor earning it, marriage became an endless progression of daily deaths. For these women too, as well as their battered or impoverished sisters, only the idea of marriage—the marriage promise—was thriving. Their actual marriages were not.

The most interesting result of Stephanie Coontz’s (and others’) historical work on marriage, however, is that with her books as a guide, we can now see that there was nothing necessary or essential or timeless about the 1950’s ideal of marriage—the “marriage promise”—either.¹² That shared understanding—the mid-century understanding of the meaning of the institution, the roles lived out within that institution, and the value those roles were to bestow on the individuals that took them up—that was so vividly a part of mid-century life, was also remarkably peculiar to its own time. The marriage promise in 1950 was different from what it had been at the turn of the century, just as it was different from what it was to become, twenty, thirty, and fifty years later. If anything, the mid-1950s understanding of marriage was further removed from earlier understandings of marriage, as it was to be from later ones.

It is useful, to drive this point home, to contrast the legal structure of the marriage promise of 1950 with that of a century earlier, as well as a quarter century later—the 1970s marriage—and then with that of the marriage promise of today. When we focus on the legal apparatus of marriage, what emerges is a picture of the 1950s marriage promise as a sort of historical pivot. Marriage, by 1950, had retained the sentimental content, but had shed some—by no means all—of the legal enforcement mechanisms that defined marriage in the Victorian era, and indeed into the beginning of the twentieth century. The 1950’s marriage promise was “traditional,” then, in two senses. As is widely understood, it promised that meaning, comfort, and security would come from “traditional” gender roles. But it was also traditional in a second sense: its norms were enforced, primarily, through tradition rather than law. By 1975, the marriage promise had undergone a second transformation, in law and culture both, at least as radical as the first: marriage retained the form of traditional marriage, but had shed much of the traditional content. The content of marriage—its meaning, roles, and norms—by the 1970s was largely a product of the individual will of participants, rather than defined by either law, as in the 1850s, or tradition. This was clearly reflected in the law and legal reform movements characteristic of that decade. I will call 1850s, Victorian marriage, “patriarchal.” Following now-standard usage, I will call 1950s marriage “traditional.” I propose that we call the marriage distinctive to the 1970s “contractual”—meaning, the content of the marital roles, as well as the meaning of marriage itself, were understood to be a product of individual will.

We’ll begin with the earlier contrast—between the traditional marriage promise of the 1950s, and the patriarchal marriage promise of the 1850s. Then, we’ll look at the contrast between traditional marriage of 1950, and the “contractual marriage” of the 1970s. In the last subsection, we’ll contrast all of that with what is distinctive about the marriage promise of the first decade of this century.

Patriarchal Marriage of 1850 and Traditional Marriage of 1950: A Contrast

The difference between the law of marriage in the 1850s and that of the 1950s was huge. The 1850s “marriage promise” consisted, in part, of three legal doctrines, each of which was absolutely central to the construction of marriage, marital roles, and the meaning of those roles in 1850, but all of which were either dead, or withering on the vine, a hundred years later. First, a man and a wife contemplating marriage in the “Victorian era” were contemplating entering an institution that, once invoked, entailed the literal—not figurative—erasure of the wife’s civic, legal, and financial identity. Through the common-law doctrine of “coverture,” the “individual” identity of the unmarried woman was transformed, by marriage, into the new marital identity of a wife. After she married she was no longer an “individual,” for all legal purposes—she was, rather, a “wife.” The greatest eighteenth-century legal authority of the English common law, in both England and the United States, Sir William Blackstone, succinctly summarized the doctrine of coverture in his encyclopedic treatment of Anglo law in this way: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.”¹³

This was not a peripheral feature of the marriage pact. Rather, and as recent legal histories of marriage and family law, such as Professor Dirk Hartog’s history of United States Victorian marriage, Man and Wife in America,¹⁴ and Nancy Cott’s Public Vows: A History of Marriage and the Nation,¹⁵ vividly show, coverture was the central, defining legal backbone of Victorian marriage.¹⁶ “Coverture” was not just one simple rule; rather it was a complex body of common-law doctrines that, in toto, described the entirety of the legal relation between man and wife. At its heart, though, the doctrine of coverture denoted the “merger” (sometimes called “unity”) of the wife’s legal identity—and with it, the wife’s financial assets—into that, and those, of her husband’s.¹⁷ The wife’s identity, in Victorian marriage, was “covered” by that of her husband, for the duration of her marriage. Her own legal and financial identity was in effect held in suspension during marriage, and would only reemerge after her husband’s death, or after a lawful divorce.

Coverture had a broad range of consequences, most of them financial. While married, for example, a wife could not buy, sell, or own property.¹⁸ Her husband had full control over any real or personal property that nominally was conveyed to her during the course of the marriage. Any wages she earned, therefore, belonged to her husband, and he had the full power to dispose of them as he wished. She could neither sue for civic wrongs committed upon her, nor could she be sued by others for torts she might commit.¹⁹ Her husband could be sued for her torts, and could sue for injuries she had sustained, but she could not. Nor could a wife form a legally binding contract, which meant, in part, that she could not form a binding contract of employment.²⁰ Children she bore during the marriage belonged to her husband. She would have no custodial rights to them, should the couple separate or divorce. When a woman became a wife, she became a part of the marital unity, and that unity, legally, was embodied in the person of her husband. Her husband had reciprocal—although unenforceable—duties that accompanied these rights. He had a moral duty to provide her with economic support. She had no such duty. The primary consequence, fully intended, of coverture was the wife’s total economic dependence on her husband.

Second: the Victorian wife, unlike the traditional wife of the 1950s, was subject to the lawful “chastisement” of her husband.²¹ In Victorian marriage, a husband had the legal right to inflict “reasonable” physical punishment upon a disobedient wife, should she disobey his orders, embarrass him in the community, expose him through her purchases on his credit to unreasonable levels of debt and liability, or in some other way dishonor his name or abuse his trust. This right (and obligation) to chastise disobedient wives with reasonable corporeal punishment could indeed be abused, and when it was, both law and moral sentiment would intervene and offer the battered wife some relief. So long as “reasonable,” however—and the bounds of reasonableness could include bites, bruises, pinches, and whippings—the law would not intervene. Chastisement was a husband’s prerogative. It was, to defenders of the regime, the heart, the essence, of what it meant to be a husband, just as obedience and submission to reasonable chastisement was central to the meaning of wife.

We don’t know to what extent the power of chastisement was used; “chastisement” has not received nearly the degree of attention and study from modern historians as has coverture.²² We do know, however, from the judicial opinions that touch on it, that the lawful power was defended, more often than not, by those who proclaimed themselves morally superior to those who might actually use the power. Thus, in an 1824 case from Mississippi, Bradley v. State, the judge opined:

It is true, according to the old law, the husband may give his wife moderate correction, because he is answerable for her misbehaviour. Hence it was thought reasonable to entrust him with a power necessary to restrain the indiscretions of one for whose conduct he was to be made responsible.… Sir William Blackstone says, during the reign of Charles the First, this power was much doubted. Notwithstanding, the lower orders of people still claimed and exercised it as an inherent privilege which could not be abandoned without entrenching upon their rightful authority, known and acknowledged from the earliest periods of the common law down to the present day. I believe it was in a case before Jr. Justice Raymond, when the same doctrine was recognized, with proper limitations and restrictions, well suited to the condition and feelings of those who might think proper to use a whip or rattan, no bigger than my thumb, in order to enforce the salutary restraints of domestic discipline.…

However abhorrent to the feelings of every member of the bench must be the exercise of this remnant of feudal authority, to inflict pain and suffering, when all the finer feelings of the heart should be warmed into devotion, by our most affectionate regards, yet every principle of public policy and expediency, in reference to the domestic relations, would seem to require the establishment of the rule we have laid down, in order to prevent the deplorable spectacle of the exhibition of similar cases in our courts of justice. Family broils and dissentions cannot be investigated before the tribunals of the country without casting a shade over the character of those who are unfortunately engaged in the controversy. To screen from public reproach those who may be thus unhappily situated, let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and the use of salutary restraints in every case of misbehavior, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned.²³

Chastisement, according to this court, was a right possessed from feudal times to the present by husbands, albeit only used by those husbands of the lower classes with little social clout.²⁴ Husbands possessed of the finer feelings of the heart should have no need for it. Nevertheless, the legal right, the judges held, was clear. A man could not be convicted for the battery of his wife, so long as the battery did not exceed the bounds of moderation.

As Yale Law Professor Reva Siegel has shown in a comprehensive historical review of the subject,²⁵ the purpose and justification of the law of chastisement gradually shifted through the course of the nineteenth century. The Bradley court itself alludes to this shift in understanding. In the eighteenth century and earlier, as the court notes, chastisement was understood to be, and openly acknowledged to be, a husbandly prerogative. Wives had an obligation to obey their husbands, and husbands had the right and obligation to rule. The family was a sovereign sphere, subordinate to the state, but nevertheless it was a sovereignty: the husband had a state-delegated right to rule—hence the need for the law of chastisement.

As the century progressed, however, the rationale for legalized private violence shifted. The explicitly patriarchal rationale for chastisement at the beginning of the nineteenth century gave way, by the middle of the century (and as the formal law of chastisement came increasingly under attack), to a line of reasoning less rooted in sovereignty and more rooted in the sentimental ideal of marital “harmony,” and then eventually in the decidedly more modern-sounding concept of “privacy.”²⁶ Privacy eventually proved to be the more enduring rationale. It is, after all, hard to justify marital violence on the basis of preserving marital “harmony.” Privacy, though, looked less paradoxical, and considerably more sweeping. Furthermore, privacy had been “discovered,” in the mid-to late nineteenth century, as an overriding value central to the individual who feels himself battered by the industrial age: a prized possession of every common man and every nobleman both, with which either the high or low born could ward off the toxic and noxious ills of crowded, contemporary, modern, industrial life.²⁷ Privacy was the legal wall with which the individual could defend himself against the intrusions feared and occasioned by the growing information technologies—newspapers and photography—and the growing press of commercialism upon the private lives of all. The private home, this sentiment, as well as this newly developing legal theory, went, should be viewed as a sort of bulwark against all of that: separate, quiet, domestic, free from intrusion, and outsiders. All private persons—husbands and wives and children—had a stake in this privacy, not just the patriarch who could reside as sovereign in his castle.

By the end of the century, chastisement, for its dwindling band of defenders, had found a new rationale: it was the necessary residue of the limited reach of the police force of the state. Chastisement, on the modern rationale, was not lawfully delegated authority to the husband to rule his roost through force. Rather, it was simply the consequence of the nonenforcement or willful underenforcement of the criminal law within the privacy of the home. The purpose of that non-or underenforcement was not to reinforce patriarchal privilege within the home. It was to underscore familial privacy and marital harmony, desirable to and desired by all. In a handful of cases, Siegel shows, judges even explicitly repudiated the “old law” of “chastisement,” while nevertheless refusing, for reasons of privacy a...