Inside the Castle

Law and the Family in 20th Century America

Joanna L. Grossman, Lawrence M. Friedman, Lawrence Friedman

• Publisher: Princeton University Press
• Year: 2011
• Print ISBN:
  9780691163321
  9780691149820
• eBook ISBN:
  9781400839773
• Topic: Jura
• Subtopic: Nordamerikanische Geschichte

A comprehensive social history of families and family law in twentieth-century America

Inside the Castle is a comprehensive social history of twentieth-century family law in the United States. Joanna Grossman and Lawrence Friedman show how vast, oceanic changes in society have reshaped and reconstituted the American family. Women and children have gained rights and powers, and novel forms of family life have emerged. The family has more or less dissolved into a collection of independent individuals with their own wants, desires, and goals. Modern family law, as always, reflects the brute social and cultural facts of family life.

The story of family law in the twentieth century is complex. This was the century that said goodbye to common-law marriage and breach-of-promise lawsuits. This was the century, too, of the sexual revolution and women's liberation, of gay rights and cohabitation. Marriage lost its powerful monopoly over legitimate sexual behavior. Couples who lived together without marriage now had certain rights. Gay marriage became legal in a handful of jurisdictions. By the end of the century, no state still prohibited same-sex behavior. Children in many states could legally have two mothers or two fathers. No-fault divorce became cheap and easy. And illegitimacy lost most of its social and legal stigma. These changes were not smooth or linear—all met with resistance and provoked a certain amount of backlash. Families took many forms, some of them new and different, and though buffeted by the winds of change, the family persisted as a central institution in society. Inside the Castle tells the story of that institution, exploring the ways in which law tried to penetrate and control this most mysterious realm of personal life.

PART ONE

TYING THE KNOT: MARRIAGE AND
PROMISES TO MARRY

CHAPTER ONE

Marriage and the State

On May 2, 2008, Mildred Jeter Loving died at the age of sixty-eight, in her home in Central Point, Virginia. Ms. Loving, a woman of mixed race, was the widow of Richard Loving. She was survived by a son, a daughter, eight grandchildren, and eleven great-grandchildren. Richard Loving was a white man, and their 1958 marriage, which was illegal in Virginia, forced them to live in exile from their home state until the Supreme Court struck down the law in 1967.¹

Foneta Jessop was also sixty-eight when she died in 2009. At the foot of the open casket, in Colorado City, Arizona, was her husband Merril, a member of a polygamist group. At his side were also his “numerous other wives, all wearing matching white dresses.” Some members described life in the group as “idyllic”; but one of Merril’s wives, Carolyn, who had broken with the group, painted a different picture of Foneta, Merril’s first wife: “deeply unhappy . . . an overweight recluse who fell out of favor with her husband and slept her days away”—shut up in her room, except for eating, doing laundry, and watching “old Shirley Temple movies on television.”²

Two deaths. Two marriages. Foneta and Mildred had very little in common—except that each was touched by the law of marriage. In this initial chapter, we take up that law—rules and doctrines that define and control marriage. That body of law, like most aspects of family law, is primarily left to the states. Each state lists its impediments to marriage, and declares that prohibited marriages are either void (invalid per se) or voidable (subject to annulment). Some marriage prohibitions—such as incest and bigamy—are reinforced through separate criminal bans. States also lay out the procedural requirements for marriage. Although it is no longer the case that there is no federal law relating to marriage, states are generally responsible for crafting their own provisions about the right to marry and the mode of marriage. Here we ask some basic questions: Who can marry and under what circumstances? Who is forbidden to marry and why? How are valid marriages contracted? We explore the rise and fall of marriage restrictions rooted in racism and eugenics, as well as the persistence of other, more enduring, impediments to marriage, like bigamy, incest, and youth. Central to the story of state marriage regulation is the establishment, beginning in the 1960s, of constitutional protection for the “right” to marry, which limited, at least at the margins, the freedom of states to impose certain restrictions on marriage. But also central, in a system dominated by state law, are the rules of interstate marriage recognition, which dictate whether marriages travel across state lines. In broad brush, we will tell a story of increasing marital freedom, reined in only by a handful of seemingly immoveable social norms.

POLYGAMY

Polygamy—at any rate, Mormon polygamy—was a burning issue in the nineteenth century. It was denounced from one end of the country to the other, with enormous vigor and outrage, along with lurid fantasies of the wild sex lives of the Mormon patriarchs, whose wives were supposed to be little better than slaves.³ In 1890, the Mormon Church renounced polygamy. Polygamy, of course, had always been illegal. The Morrill Act of 1862 made bigamy in U.S. territories a federal crime.⁴ Federal law also made “unlawful cohabitation” a crime; this too was aimed at the Mormons. In Reynolds v. United States (1878), the Supreme Court upheld the bigamy law, despite the claim that it violated the free exercise of religion protected by the First Amendment.⁵ To top it off, Utah’s statehood was conditioned on its banning polygamy.⁶ Every state today provides that bigamous marriages are void.

The church’s renunciation of polygamy spelled the end of polygamy for mainstream members of the church—at least officially. There is little question that some members of the church secretly continued the practice into the twentieth century. Joseph F. Smith, head of the church, who died in 1918, had several wives, and forty-three children. When Reed Smoot from Utah was elected to the Senate, in the early twentieth century, he was accused of polygamy (he denied it); and an attempt was made to prevent him from taking his seat. The church continued to denounce polygamy, but small splinter groups, living at times in remote towns in Utah and neighboring states, kept up the practice.

One of these communities was Short Creek, which straddles the Utah-Arizona border. Here polygamists freely practiced their faith and their lifestyle. On the whole, they adhered stubbornly to their beliefs, despite persecution, raids, lawsuits, and attempts by the authorities to take their children away unless they renounced the dreaded practice of plural marriage.⁷ An investigation in 1935 found that the men in the group, known as the Brethren of the United Order, had from “2 to 6 wives and from 5 to 29 children.” The investigation had been touched off when women in the community “identified themselves as ‘plural wives’ in filling out applications for relief.”⁸

Polygamy, then, did not simply curl up and die—neither among Mormon splinter groups, nor among other small sects. When Rulon Jeffs, president of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), died in 2002 at age ninety-three, he left behind as many as twenty wives and hundreds of grandchildren; thirty-three sons served as pallbearers at his funeral.⁹ He lived in Short Creek, which is still filled with plural-marriage households. This sect was the subject of a front-cover story in the February 2010 issue of National Geographic, with pictures of polygamous life and in-depth interviews with members.¹⁰ According to the story, about 38,000 “breakaway Mormon fundamentalists” still practice “plural marriage.” FLDS is the largest group, with about 10,000 members. At least one “patriarch” had eighty wives. As one might imagine, the birthrate in the group is staggeringly high.¹¹

The legal battle against polygamy did not curl up and die either. A Utah man, Thomas Green, was tried and convicted of four counts of bigamy in 2001, and sentenced to five years in prison.¹² He had numerous wives, several of whom were related to each other, and twenty-five children at the time of his conviction, plus four more on the way. He and his wives appeared on popular talk shows, touting their lifestyle and proclaiming a constitutional right to pursue it. Although local prosecutors had long since ceased pursuing polygamy cases, Green provoked them to go after him.¹³ His was the first major polygamy prosecution in Utah in nearly fifty years, even though thousands of Utah residents still live in polygamous households.¹⁴ But the stress in recent years has been less on lust and sex, or the immorality of polygamy, than on the exploitation of women and children. The habit of marrying very young girls has been an especially thorny issue. Tom Green’s youngest wife was only fourteen when they married, but the girl—whose mother he had also once married—was already pregnant. While the marriage was legal, he was later convicted of child rape for the premarital sex that led to the pregnancy.¹⁵ Because he divorced each woman before marrying the next (while keeping them all as his functional wives), the child-rape victim was his “only legal wife” when he was freed from prison in 2007.¹⁶

These issues were front and center again in 2008 and 2009, when a huge media blitz focused on a raid of the Yearning for Zion ranch in Eldorado, Texas, a settlement of the FLDS sect that was founded in Short Creek. One leader of the sect, Raymond M. Jessop, was arrested, along with other men in the group. They were accused of marrying and having sex with girls who were under age—some as young as twelve. There were attempts, too, to remove some of the children from the ranch. The case against Jessop was difficult because the women were unwilling to cooperate; but in November 2009, Jessop was convicted of sexual assault on an “under-age girl whom the church elders had assigned to him as one of his nine wives.”¹⁷

Still, in the age of the sexual revolution, a few people have begun to wonder: what is so wrong with polygamy—not, of course, of the Yearning for Zion variety, but a more civilized form. Men can legally have a whole stable of women, provided the women agree; and having a mistress or two, or six, would not violate any law in most states. (Utah and Colorado are unusual in that they define the crime of bigamy to include purporting to marry or cohabiting with another person while already married to someone else—a measure expressly designed to preclude the kind of manipulation engaged in by Tom Green and other modern-day polygamists.)¹⁸ What, then, would be so terrible about marrying these women, instead of simply living with them? That is perhaps the question for viewers of a new reality show, Sister Wives, which depicts a “normal” polygamous family currently living in Utah. There is no underage marriage, no sexual predation, no dependence on welfare. There is just Kody, who lived with his three wives and thirteen children in a house specially designed for polygamous marriages; and in the course of the show, marries a fourth wife (with three children of her own from another marriage). He opens the show with this admission and promise: “I’m a polygamist, but we’re not the polygamists you think you know.”¹⁹

Of course, there are answers to the question of what’s wrong with polygamy. Letting a man have several wives would make hash of the laws about marital property and child custody. It might create a legal tangle of heroic proportions. And the problem of male supremacy persists. Muslims are allowed four wives; and some African societies practice polygamy as well.²⁰ A Kenyan polygamist, whose nickname was “Danger,” recently died in his late nineties. He left behind one hundred widows and two hundred children, for whom he had established two separate schools.²¹ Immigrants from these countries are now found everywhere in Western society, including the United States. In all of these societies, polygamy is clearly a symptom and a form of male domination; and in an age of (official) gender equality, that simply will not do. There is also the effect on those men who are not part of the leadership group of alpha males. Hundreds of young men have been expelled from FLDS, ostensibly for “being disruptive influences,” but more likely from a “cold-blooded calculation by church leaders” that they had to limit “male competition for the pool of marriageable young women.” After all, if one man can have eighty wives, then seventy-nine other men are unlikely to find a mate.²²

At the Yearning for Zion ranch, the subjugation of women was more than a rumor; it was reality. Seen on TV, dressed in identical long dresses, with identical hairstyles, the women seemed mindless, strangely robotic, as if drugged. A breakaway member of the church, Rebecca Musser, testified in the Jessop trial that the founders and leaders of the church, Rulon Jeffs and his son Warren, “controlled every aspect of the women’s lives, including how they dressed and what they ate . . . who they married and when.”²³ Warren Jeffs was convicted of rape as an accomplice for compelling a fourteen-year-old to marry her cousin with the knowledge that nonconsensual sex would follow.²⁴

But that anyone besides members of these sects can even ask whether polygamy should be permitted is in itself definitely a sign of the times. Of course men, not women, ask the question. Nobody speaks up for polyandry.²⁵ If harems ever come to be legalized, they would presumably follow the usual pattern—one man, many women. The other way (on Tuesday she sleeps with Claude, on Wednesday with Stephen, on Thursday with M...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• Part One: Tying the Knot: Marriage and Promises to Marry
• Part Two:: Anything Goes: Love and Romance in a Permissive Age
• Part Three: When the Music Stops: Dissolving a Marriage and the Aftermath
• Part Four: The Old and the New Generation
• Conclusion: Into the Void
• Notes
• Index