For more than twenty years, Harvard history professor Nancy Cott has studied family, gender, marriage, and citizenship. In 2000, she published Public Vows: A History of Marriage and the Nation, and in 2010, she took the stand in Perry v. Schwarzenegger to describe her conclusions.
At bottom, Cott testified that, when a couple exchanges marriage vows, the state takes a simultaneous vow to protect and support that union. “Marriage is both a public and private institution,” Cott said. Most people think principally about the private aspects of the union: Have they found a partner whom they love? Do they want to embark upon a lifelong intimate relationship with this person? However, marriage is also a public institution first authorized and then used by the state as a tool for achieving its own objectives, the most important of which is creating stable households that assist in caring for and governing the populace, Cott said.
Unfortunately, due to the volume of news on the first day of Perry testimony, Prop 8 on Trial was unable to cover Cott’s remarks in detail. However, we have chosen to revisit them now because we believe her perspective is crucial to understanding one of the principal inquiries before the Ninth Circuit: What is the history and importance of civil marriage in the United States? Indeed, the spirit of this question was raised by then-Chief Judge Vaughn Walker himself during the trial’s opening statements, when he provocatively asked, “If California were to get out of the marriage business – and simply classify everyone as registered domestic partners, wouldn’t that solve the problem?” The “problem” to which Walker referred was the desire of gay and lesbian people to live in a state that allows them to marry another person of the same sex – and the conflicting desire of Proposition 8 supporters to exclude homosexual couples from civil marriage.
Read on to study Cott’s historical perspective on what civil marriage is, why the state remains committed it, and – first – why she thinks allowing same-sex couples to join this institution would comport with 150 years of evolution in marital law.
THE EVOLUTION OF MARITAL LAW
Cott said that, since the 18th century, U.S. law defining civil marriage has evolved in two important ways: First, the country has repealed laws restricting marriage and, thus, moved toward including more couples within the institution. Second, the United States has repealed laws presuming that men and women play separate roles in marriage and, thus, moved toward gender neutrality. On the stand, Cott declared that opening marriage to same-sex couples would comport with both trends.
THE TREND OF INCLUSION
The first legal trend that Cott described was one of marital inclusion: Since the 1920’s, the United States has slowly but steadily abolished laws that restrict a person’s choice in marital partner, she said.
Principal among these laws were racial and ethnic restrictions. For example, as many as 41 states and territories restricted interracial marriage for a significant portion of U.S. history. These laws originated in the 17th century, when colonial governments refused to recognize marriages in which white people pledged themselves to Native Americans or black people. Occasionally, state laws not only nullified these marriages but also made them criminal.
Racial restrictions proliferated after the Civil War, when freed slaves were allowed to marry and flocked to do so. Restrictions also expanded to new ethnic groups. For example, when Chinese and Japanese immigration increased during the late 19th century, California and other western states barred marriages between white people and those of Asian ancestry. Even in states that allowed these marriages, the federal government burdened the unions by stripping a woman of her U.S. citizenship when she married a man who was not an American. It would not matter if the woman “was descended from the Mayflower,” Cott said.
These and other laws forbidding marriage across the color line were typically justified as “only natural” and as “fulfilling God’s plan that the races not mix,” Cott said. She stressed that they did not prevent white people from spending their lives with black and brown people whom they loved. Instead, the laws simply made that choice more costly. “Legislatures knew these relationships were occurring: They simply did not want to give them the imprimatur of valid marriage,” Cott concluded. “They wanted to make these relationships a second-class sort of relationship.”
Over time, these restrictions were removed – a trend most dramatically marked by the 1967 United States Supreme Court ruling in Loving v. Virginia, which declared that marital restrictions based on race were unconstitutional. But interestingly, as American courts and legislatures dismantled race-based marital prohibitions, they also affirmed one of the principal defining characteristics of U.S. marriage: Consent between marital partners. In contrast to the traditional arranged marriages of Europe or Asia, the United States has always expected marital parties to consent freely to their unions, Cott said. Courts, legislators, and voters have also confirmed that some measure of choice is part of this consent, and the ability to say “I do” to the person of your own selection has even become a marker of citizenship itself. In this way, marriage has become a civil liberty in the U.S., and expanding marital access has become an assurance of a citizen’s most personal fundamental rights.
Cott concluded by saying that allowing same-sex couples to marry could be another step in this direction.
THE TREND TOWARD GENDER-NEUTRALITY
The second trend Cott described was not a change in who can enter marriage but rather a shift in how the government understands that marriage. U.S. law previously treated men as the heads of marital households and women and children as their dependents. However, in the last 140 years, the United States has repealed laws that empowered husbands in this way, and our law now recognizes equal rights and responsibilities for both spouses, regardless of their genders.
Laws regulating roles within marriage were rooted in the common law doctrine of coverture, which provided that a wife’s legal identity merged with her husband’s. Upon marriage, the woman was no longer able to sign contracts, to own property, or even to accuse her husband of a crime. As Cott explained, coverture governed at a time when the sexual division of labor underlay the marital household: Both a man and a woman were considered necessary to marriage because their complementary duties would enable a household to survive. The approach was also justified as a fair, contractual bargain: A woman submitted to a man’s authority and cared for his home and family. In return, he promised to provide material needs for their family for the rest of their lives.
Americans later repealed these features of civil marriage. Reforms started in the 1860’s, when women began to earn property rights. Legal changes accelerated in 1920, when women earned national voting rights. Similarly, moves away from an agrarian society and toward more mechanized and service-oriented workplaces allowed women to enter the workforce more easily. The overall result has been a change in the assumptions about what the two sexes can and should do in the family, Cott said. “The sexual division of labor is no longer necessary for the kinds of work people do,” Cott concluded. Thus, while couples are still free to privately divide their labor as their 19th century counterparts did, state laws no longer presume that they will do so.
In conclusion, Cott testified that the gender neutralization of marriage supports opening the institution to same-sex couples. “The more symmetrical and gender-neutral spousal roles have become … the more that the marriage between couples of the same sex seems perfectly capable of fulfilling the purposes of marriage,” she said.
WHAT CIVIL MARRIAGE IS
Just as important, however, Cott said there is a marital principle that animated coverture and that remains at the core of marriage today: Marriage is the recognition of two adults who make a public commitment to maintain a stable relationship in which they will support one another and their dependents. Cott said we could think of civil marriage as the state’s blessing of this commitment and its simultaneous pledge to support that union.
Cott stressed that this aspect of marriage is as much about serving the state’s interests as it is about serving the couple’s needs: Assigning care for dependents to the head of the household allows the state to delegate economic responsibilities and to create social order. It is for this reason that the state involves itself in what might otherwise be a private arrangement.
Indeed, to understand the state’s interest in marriage – and why it has not been inclined to “get out of the marriage business altogether,” as Walker said, it is important to understand the differences between civil marriage and other kinds of marriage. In many ways, this distinction harkens back to Cott’s initial point, that marriage is both a public and a private institution. In plain terms, a civil marriage is one recognized by the state and governed by its laws. It is the kind of marriage conducted in public by a state official, such as a Justice of the Peace, and it is these marriages that the Perry plaintiffs seek to enter. They are attempting to do so by challenging the constitutionality of the California law now explicitly defining marriage only as an agreement between the members of a heterosexual couple.
However, civil marriage and its public significance stand apart from any private agreement that a couple might make and from any religious marriage in which they might also engage, Cott said. That religious marriage, often conducted in a place of worship or solemnized by a religious official, is something in which the state is not involved. Instead, the religious marriage is governed by the laws of faith.
This matter is often overlooked by Americans perhaps because we often conduct dual ceremonies, in which a couple that meets the legal requirements of both state and church enters their civil and religious marriages simultaneously. In addition, these rites are often officiated by a religious leader. However, that religious leader is able to do so only because the state – for the convenience of its citizens – has vested its power in him for the purpose of formalizing both unions at the same time. Despite this official’s presence at the ceremony, the terms of the couple’s legal, civil marriage begin and end with the provisions of state law, and conversely, no change in state law will affect its religious significance. This is, incidentally, why a couple can also be married at City Hall in a brief administrative ceremony and yet leave that event with a marriage that is, from the state’s perspective, just as valid as one performed in the most elaborate cathedral.
And so we ask again: Why does the state bother to involve itself in marriage – even to create a separate institution like civil marriage – when it seems that marital love could be left as a private matter? Cott said the state does so because it uses these two-person unions as a vehicle for fulfilling the state’s own needs, the most important of which is creating stable households that assist in caring for and governing the populace.
Cott did say that, over time, the state has used civil marriage to support other state interests – including promoting procreation, channeling sexual activity, and establishing the legitimacy of children, all goals that the Perry defendants have insisted are the most fundamental purposes of civil marriage. In contrast, Cott’s research concludes that supporting and encouraging household units has always been civil marriage’s paramount purpose. In her testimony, Cott emphasized that this objective dates to colonial times: In early America, for example, households were the country’s fundamental economic units, because they organized the production of food, clothing, and shelter. Thus, early state governments authorized marriage because, when governed by responsible male heads, marital households promised the country economic stability.
In conclusion, Cott noted that marriage has also created convenient units through which the state can funnel economic benefits. The U.S. government began doing so with the New Deal and amplified this approach with the Social Security Act, which includes monetary advantages for married couples. With these benefits, the state is encouraging marriage by bundling social benefits with the institution’s legal obligations. “The fact that the state is involved in granting these kinds of benefits and legitimacy to the marital family tends to lend a prestige, a status to that institution that no informal marriage has ever approximated,” Cott said.
She also provided a short rejoinder to Judge Walker’s perhaps tongue-in-cheek solution to the “problem” that Perry presents. Several hours after Walker conjectured the effects of having the “state get out of the marriage business,” Cott reminded the court that marriage has a high cultural value, partly because it has been endorsed by the state, used as its device, and also featured in our novels, folktales, songs, and movies for hundreds of years. Marriage’s cultural polish is further enhanced by centuries of ceremony – the white dress, the throwing of rice, “the happy couple parading down the aisle,” Cott said. Thus, either by design or by default, our culture communicates that this destination, and no other, should be gained by any couple who love one another, and even the extension of identical legal rights to an alternative status would never equalize that status with marriage. “Marriage has been the happy ending to the romance,” Cott said. “There really is no comparison, because there is nothing that is like marriage except marriage.”