Marriage – the word alone is loaded. Marriage is the butt of jokes, the “old ball and chain,” the end of fun. Marriage can also bring up images of fear, of abuse, of control. And marriage can invoke images of happy couples, of new beginnings, and of really really expensive parties and mediocre buffet lines.
Today we’re going to do a quick exploration into the history of marriage in America. From the founding of our nation until the present day.
Transcript of Marriage in America
Researched and written by Elizabeth Garner Masarik
Produced by Elizabeth Garner Masarik and Marissa Rhodes
Elizabeth: Marriage – the word alone is loaded. Marriage is the butt of jokes, the “old ball and chain,” the end of fun. Marriage can also bring up images of fear, of abuse, of control. And marriage can invoke images of happy couples, of new beginnings, and of really really expensive parties and mediocre buffet lines.
Today we’re going to do a quick exploration into the history of marriage in America. From the founding of our nation until the present day.
I’m Elizabeth Garner Masarik
And I’m Marissa Rhodes
And we are your historians for this episode of Dig.
Marissa: A few weeks ago we discussed the social and legal underpinnings of something called coverture. If you listened to that episode you’ll find this one as a nice addition. And if you didn’t hear it, although it’s not necessary to understanding this episode, you will find it a nice complement to some of the ideas that we discuss here.
Elizabeth: But today we are going to focus on marriage in America specifically and how the concept of marriage as a cultural, social and legal event and state of being, has changed over time. Now of course America began as a colony of England and therefore early American understandings of marriage were based on the British model. In general, European political theorizing had long held that monogamy benefited the social order. It harnessed sexual desires, it supplied a support system for the care of children and the dependent, and it provided a means for wealth management.
Marissa: Of course, monogamy wasn’t the only way these aspects of life could be taken care of. There were plenty of other models all over the world that served to order society through other marriage and partnering practices such as polygamous and matrilineal modes of marriage and partnering. But European ideology rested on a Christian understanding of family and social order, and thus monogamy.
Elizabeth: But there was a lot going on in Early America. Nation states and individual colonies were vying for control of land, resources, and a solid piece of the global merchant trade. There was massive competition between colonial interests in the New World. To cope, new settlements needed to have control over populations- both colonial settlers and native peoples- in order to maximize the resources invested in colonial endeavors.
Marissa: One means of controlling populations is through controlling gender and how gender functions in a society. Aristotelian understandings of gender rested on the assumption that females were the embodiment of lesser formed males. These scientific understandings of male and female colored first encounters between European colonists and native peoples. Gender difference was fully ensconced in the European world-view.
Elizabeth: Even moving to the New World was a gendered experience. Historian Kathleen Brown does an excellent job of showing how the English viewed the American continent. British travel accounts and propaganda pictured North America as an untouched Eden. Even the name of the new British holding, Virginia, expressed the female nature of the land. Named for the “The Virgin Queen,” Queen Elizabeth I, who adopted the moniker to retain control of her holdings, the name Virginia suggested an untouched “virgin” land waiting for masculine conquest.
Marissa: Even with the first British colonies, we see gender playing a fundamental role. The very earliest colonies, first Roanoke and later Jamestown, were both heavily skewed male, which tells us two things. First, that these initial colonies were not designed to be fully functioning societies but were instead designed to be money making enterprises. Second, money making enterprises relied on a gendered division of labor. Women weren’t taken to the British North American colonies in equal numbers because women’s labor was not understood as integral to a money making enterprise. So already we see New World colonists coming over with preconceived notions of male and female and what powers and responsibilities those genders embodied.
Elizabeth: the gender balance in the British colonies was skewed male and this lasted into the 18th century. After “gold” was found with the cash crop tobacco, mass amounts of labor was needed. As more male colonists came to America the need for white women to come and be a way to calm the rowdy masses became apparent. Because the British did not intermarry with native women like say the Spanish and the French did. So Britain had to import more European women than other colonizers did. And European women did go to the British colonies, although never in the same amounts as men did. But labor needs were so desperate that most indentured women were quickly put to work in the fields.
Marissa: This immediately caused a disturbance in the social and cultural understandings of gender. Divisions of labor in the early modern English colonies prescribed that a “good wife,” was a wife that was both a help-mate and a woman who worked strictly inside the domestic sphere – inside the home, NOT in the fields. Labor shortages that forced European wives and female indentured servants into the tobacco fields both upset the cultural assumptions of proper womanhood and upset assumptions of white masculinity.
Elizabeth: Right, in order for a man to be a proper patriarch, he needed to be able to afford to have his female kin solely work inside the domestic sphere. Women working “outside” were perceived as “nasty wenches,” and more vulnerable to sexual exploitation and rape because they weren’t protected by a strong male patriarch inside the home. So it became a matter of class status to have the ability to control sexual access over one’s female family members by being able to afford to have them work only within the domestic realm. So basically he was failing as a man if his wife or daughters had to work in the fields, because it showed that he couldn’t afford hire someone else, i.e. these “nasty wenches” to do that kind of work.
Elizabeth: Right, so guess who ended up doing that work? Three guesses [sarcasm]. African, Native American, and European women all worked in tobacco fields during the early colonial period in the Chesapeake and were all viewed as “nasty wenches.” BUT, as more African slaves were brought to the Chesapeake, understandings of race and class began to intersect. And ideas about “proper” women took shape around ideas about race. So as African slaves were imported into the British colonies, more white women were able to move inside the home. Over time, Black women came to be known solely as “nasty wenches” where white women became overwhelmingly “good wives” because of the work they were doing and the level of sexual protection they received from a patriarch. So it turned into Black bodies were unprotected and thus “available” to be raped because they were not “good wives.” And one way we can track how these cultural assumptions of race and class were changing is by the laws that were passed in colonial Virginia.
Marissa: So for example, in 1642 African women were taxed the same as all male laborers, white women were not. In 1662 slavery was defined through matrilineal lines, meaning that the status of slave followed the status of the mother, not of the father. This allowed white men to rape African women without repercussion and heightened the need to restrict white women’s sexuality. So mixed race children born to Black women became slaves and because colonists did not want mixed race children born to white women to be free, there was even more impetus to restrict access to sex with white women.
Elizabeth: After Bacon’s Rebellion in 1676, the colonial government restricted African and Native American access to the law- they weren’t allowed to testify in court, have sex with white women, or carry firearms. Kathleen Brown argues 1676 was the turning point when the Chesapeake colonies moved from a division of class to one of race. By the 1730s the term “nasty wench” was reserved for African woman only. The term not only designated their skin color but also the limited power they or African men had in protecting them from sexual exploitation, ie rape from white men. In creating these racial and gender hierarchies in the American colonies, we can see why marriage and monogamy would be so integral to the hierarchy and the support of white patriarchy that defined the early American social fabric.
Marissa: By the late 18th century, Americans understood heterosexual marriage as a mutual consent between a man and a woman to enter into a marriage contract. Legally then, they became one under the law and rested on the Christian doctrine that “the twain shall be one flesh.” Heterosexual desire was expected to be satisfied within the union and each partner would have exclusive access to the others’ body, thus demanding sexual fidelity or monogamy. Now we know for a fact that marriage did not ensure monogamy. Particularly because of the proliferation of prostitution throughout the American experience and because of the number of documented cases of women being punished for adultery. Essentially monogamy meant that women could not have sex with anyone else. It harkens back to our earlier discussion of restricting access to white women sexually.
Elizabeth: Also following Christian doctrine, the Bible made the husband the “head” of his wife. So the common law turned the “twain” or the two into one person and that person was male under the law. And this is coverture, which Marissa discussed in depth in its early modern European context a few weeks ago. Basically a woman gave up her identity, symbolized by relinquishing her last name and taking her husbands. In its strictest sense, coverture meant that a wife could not enter into contracts, sign legal documents without her husbands name also, control her own property, or be held responsible for herself under the law. The husband became the political representative for his wife – so he has full citizenship, she does not.
Marissa: During the Revolutionary-era, the marital union was used as a metaphor for political union and Revolution itself. Discussions about “marital choice” and “unions” pervaded popular newspapers, magazines and pamphlets. These tracts defined marriage as a companionship and a balance between two partners. Marriage was presented as a balanced union and partnership, not a hierarchy as common law prescribed. This was often used as a metaphor for the reasons why America wanted to break from England. The rational behind it was that America wasn’t in an equal “marriage” with Britain, but one of hierarchical authority, with America as the historically “women,” or lesser role. Thus the reason to kind of bolster the idea of “union” or “equality” when talking about this metaphorical marriage. It should come as no surprise that soon after the Revolution, this equal partnership idea shifted to older understandings of marriage and pseudo-coverture.
Elizabeth: Ideas surrounding marriage rested on an understanding of consent. So just as citizens agreed to grant authority to their elected representatives, a woman would consent to grant civic and legal authority to her husband. Here’s an example from a popular essay from 1793. It urged wives to “cheerfully submit to the government of their own chusing [sic],” meaning a man. It went on to say “women by entering upon the marriage state, renounce some of their natural rights (as men do, when they enter into civic society) …” A wife gained “a right to be protected by the man of her own choice,” just as “men, living under a free constitution of their own framing, are entitled to the protection of the laws.” So we see here how eighteenth century understanding of marriage still adhered to an idea of coverture and patriarchy.
Marissa: Moving into the nineteenth century, states had the power to say who could marry and to whom. This meant that southern states with slavery forbade enslaved people from legally marrying one another. Because if a Black man was owned by a white man, and that Black man were to legally marry a woman, it would cause social upheaval because then who owns the body and the labor of the woman the Black man married? Would it be the white master of the Black man, or the Black man over his wife? So you can see why marriage would be forbidden. Some states ruled that Native Americans and whites could not marry one another, or Black and white people. States also determined laws regarding divorce and rights for widows and widowers. And even though different states had different rules, the constitutional doctrine of comity mandated that states had to honor another’s laws on marriage.
Elizabeth: Slave marriages had neither legal standing nor protection from the abuses and restrictions imposed on them by slaveowners. Slave husbands and wives, without legal recourse, could be separated or sold at their master’s will. Couples who resided on different plantations were allowed to visit only with the consent of their owners. Slaves often married without the benefit of clergy or official sanction. Thus the “jumping over the broom,” which is a ritual of laying a broom on the ground to symbolize hearth and home, and then jumping over it. This is a practice that has been traced by to Celtic traditions but in the American setting is thoroughly ensconced within African-American marriage rituals.
Marissa: After the Civil War newly freed enslaved people flocked to the Freedman’s Bureau and other official agencies, in order to obtain legal marriages. A legal marriage certificate was more than just a document “legally” securing a marriage. It was a symbol of freedom. The right to get married brought honor and legitimacy to a marriage But the freedom to marry was not automatically extended to formerly enslaved people. For example, Texas did not allow freedmen and women to marry until 1869.
Elizabeth: Divorce in the nineteenth century was very different than today. Instead of essentially “dissolving” the union, in the nineteenth century the plaintiff actually had to prove or show that the defendant had in some way broken the marriage contract. So for example, a wife that was abused and or physically hurt by her husband had to prove her ideal female behavior in order to have a standing in the case. She had to show how obedient, attentive, attractive, pious, sexually faithful and how long-suffering she was in order to get a divorce. This could be extremely embarrassing and demeaning for a woman to go through. Men just basically had to prove that they financially supported their wife and children whereas a wife must prove her femininity (to a male judge).
Marissa: Additionally, women might not want a divorce, even if they were being abused, because they would most likely lose custody of their children. Even if their husband was found to have violated the marriage contract and a wife was granted a divorce, it didn’t mean that he lost control of his children. During the colonial era, widows could lose their children to a guardian selected by the father before his death. Courts determined who would get custody of illegitimate children and did not generally give mothers custody until the 1800s. Before then, and even well into the nineteenth century, fathers had an absolute right to custody of their children as well as the earnings of their wife’s and children’s labor.
Elizabeth: Fathers also had the right to seek legal action if their daughters were “seduced” which could mean a variety of things from the daughter falling in love with someone and running away to her actual rape. “Seduced” was a very loaded word. Courts sometimes awarded mothers custody of their children if the fathers did not provide for them monetarily. But that was sometimes hard to prove. Under coverture, children were considered assets in which their fathers had property rights. Wives, limited by coverture, therefore had no economic or familial rights to the custody of their children. This slowly changed in the nineteenth century as women’s rights gained momentum. Married women started gaining property rights and started gaining custody rights. It wasn’t until the turn of the twentieth century however that courts stopped viewing children as property.
Marissa: Between the years 1820 – 1860 most states loosened their obstacle to getting a divorce. States added statutes such as extreme drunkenness, gross neglect of duty, and extreme cruelty, among others, to their reasons for granting divorce. But not all states were equal in their divorce laws. Indiana became known as a “divorce mill” in the 1850s because they had such liberal divorce laws. And New York had some of the strictest, where divorce could only be granted in cases of adultery- and that most often meant a wife cheating on her husband. Because you know, patriarchy.
Elizabeth: Even after states started granting women property rights and later a right to their own wages, courts still ruled conservatively when it came to these ideas. Husbands were expected to support wives and in exchange wives were expected to give over her property and her labor. Judges continued to interpret wives’ housework, ie labor, as work owned by their husbands. What was also considered to be owned was a woman’s sexuality.
Marissa: General understandings (by men at least) of the contract of marriage included the husband’s “right to sex”—the wife having given consent for all time by entering the marriage contract in the first place. Essentially, wives were the property of their husbands with which they could do what they pleased sex-wise. The 1857 Massachusetts case Commonwealth v Fogerty was the first in the U.S. to recognize the “contract” justification for the marital defense to rape, ie a woman entered into the marriage contract freely and with full knowledge they were giving up the right to refuse sex. This defense became part of the rape laws in every state. The “right” of a husband to sex with his wife also provided a husband with grounds for divorce if his wife refused sex.
Elizabeth: This understanding of contract lasted throughout the nineteenth and well into the twentieth century. The Model Penal Code was a set of legal provision that was drafted in 1955 and presented to the American Law institute. It included provisions on rape. The code stated that: “Marriage . . . while not amounting to a legal waiver of the woman’s right to say ‘no,’ does imply a kind of generalized consent that distinguishes some versions of the crime of rape from parallel behavior by a husband. . . . Retaining the spousal exclusion (ie this rape exemption within marriage) avoids this unwarranted intrusion of the penal law into the life of the family.” States adopted the Model Penal Code’s endorsement of the marital rape exemption in varying capacities. The code was updated in the 1980s but still upheld the spousal exemption.
Marissa: However, the women’s movement of the 1960s and 70’s spearheaded changes to laws concerning marital rape. In 1976, Nebraska became the first state to throw out its marital rape exemption law. In 1978 national publicity brought the issue of spousal rape to the attention of the public when an Oregon court acquitted a husband charged with raping his wife;
Oregon became the third state to criminalize marital rape. In 1984, the New York State Court of Appeals finally decided that there was no basis for distinguishing between marital rape and non-marital rape. The court noted that “a marriage license should not be viewed as a license to forcibly rape [the defendant’s] wife with impunity” and struck the marital exemption from the statue in question for violation of the state and federal Constitution. North Carolina’s penal code for rape said that a person could not be convicted of the crime of rape “if the victim is the person’s legal spouse at the time of the commission of the alleged rape,” until 1993.
Elizabeth: So it wasn’t until 1993 that all 50 states had finally eliminated the “marital rape exception.” But don’t get too excited yet. Only about half of the states have totally abolished the distinction between marital and non-marital rape. Twenty of the states that have kept the distinction exonerate a husband who has sex with his wife while she is unconscious or otherwise incapable of giving consent. Many states, like California, for example, still define spousal rape as a separate offense than, say, rape by a stranger. Other states that treat marital rape differently from non-marital rape require that marital rape victims report the crime within a shorter period of time than is required in non-marital rape cases. In fact, some states require that the prosecution make a greater showing that force or violence was used during marital rape than is required in a non-marital rape case.
Marissa: Let’s switch gears and look at marriage through the lens of immigration. In March of 1907 Congress passed the Expatriation Act. It ruled that U.S. women who married non-citizens would lose their citizenship. They would no longer be Americans. If their husband later became a naturalized citizen, they could go through the naturalization process to regain citizenship. The same rule did not apply to men. An American man who married a non-citizen woman kept his citizenship status and his wife and any children they had became citizens as well. This is 1907, by this point women can vote in four states, yet coverture still plays a role in how women are incorporated under a husband’s citizenship.
Elizabeth: This law was tested in 1911 when Ethel Mackenzie was barred from registering to vote in California because she was married to an English man. She took the issue to court, arguing that it was unconstitutional to deny her rights of citizenship because of her marriage. The case traveled all the way up to the Supreme Court where Justice McKenna gave the opinion that a couple’s “intimate relation and unity of interests” made it “of public concern in many instances to merge their identity and give dominance to the husband.” He went on to say that marriage was a voluntary act. She had entered into the marriage contract willingly and since the California law warned her of the consequences of doing such a thing, her voluntary willingness to marry basically amounted to “expatriation.” Or giving up one’s citizenship. So that’s a long legaleze way of saying, nope, you’re not a person anymore. Your husband is larger than you are and encompases your citizenship rights. Citizenship here people, something you are supposedly granted at birth! But apparently not for women.
Marissa: And once America entered World War I in 1917, this law affected thousands of American women. Because, if they had married German immigrants who hadn’t been naturalized before the war, they had already lost their citizenship and when war started they ended up having to register as enemy aliens! It wasn’t until 1922 with the Cable Act, also known as the Married Women’s Independent Nationality Act, where a woman’s citizenship was separated from marriage. American native women married to foreigners gained their American citizenship back.
Elizabeth: But just because the Cable Act was passed didn’t mean that these women automatically gained their citizenship back. They had to petition the government to regain their citizenship. Also if a husband wasn’t eligible for citizenship, her request for citizenship could still be denied. And, if the woman had lived on foreign soil for two years, she could still lose her citizenship. It wasn’t until the 1940s when women did not have to worry about losing their citizenship based on the men they married. So yet again, even though coverture wasn’t common law anymore, women were still not considered citizens enough to actually keep their citizenship once they were married until the 1940s.
Marissa: There are a million other ways we could point out how marriage propped up white patriarchy. We could do it though the tax code, through credit and banking agencies, through laws against “miscegenation,” and a gazillion other ways. Instead we are going to turn to same sex marriage and how society and the law changed over time. The landmark case Obergefell v. Hodges was decided in 2015 in the US Supreme Court. It granted same sex couples the right to marry. Or really, more precisely, it overruled the 13 states that had passed laws against same sex marriage that they were in fact violating same sex couples rights under the Fourteenth Amendment. So go listen to our episode on the Fourteenth Amendment for more on how that amendment in used in cases like this.
Elizabeth: But the legalization of same sex marriage followed an extremely long and arduous path. Really since the founding of the nation but legally since the 1970s. In 1970 a same-sex couple in Minnesota applied for a marriage license and were denied. They sued and their case made it to the state supreme court, where they lost the case. Maryland became the first state to officially ban same-sex marriage in 1973. Many states made their same-sex marriage bans in the 1990s and early 2000s. Yet, while those laws were being enacted, views about same-sex partnerships were changing in the public mind. For example, Levi Strauss & Co. were one of the first companies to provide domestic partner benefits to their employees in 1992. The 90s was also the decade of tv shows like Friends, and Ellen (the first one- a sitcom, not a talk show) where same sex characters had major roles. Contemporaneously however, in 1996 Justice Scalia grouped murder, polygamy and homosexuality together as the type of disgraceful acts in which laws could constitutionally prohibit. DOMA, or the so-called “Defense of Marriage Act” was passed in the same year, which prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state. Section three of the law was struck down by the Supreme Court in 2013.
Marissa: 2003 was a huge year in same-sex legal fights. The House of Representatives proposed an amendment to the Constitution of the United States that would define marriage as only between a man and a woman. The U.S. Supreme Court decided Lawrence v. Texas, which struck down sodomy law and issued a broad constitutional right to sexual privacy. California passed a domestic partnership law that provided same-sex partners with almost all the rights and responsibilities as spouses in civil marriages. That same year President Bush said that he wanted marriage reserved for heterosexuals only. And finally, Massachusetts became the first state to legalize gay marriage.
Elizabeth: So with all the ways that we have outlined how marriage props up white patriarchy, it begs the question, why would same sex couples want the right to legally marry? And the answer to that is complicated, just as complicated as the reasons that women still enter into heterosexual marriages. Throughout the fight for same-sex marriage, ideas among the LGBTQ community were always mixed in regards to wanting the legal right to marry. Many did view it as a heterosexual, patriarchal, white supremacist institution and wanted absolutely no part in it. Alternatively, same sex couples sought legal marriage because the official denial of such a union stigmatized their relationship and undermined their constitutional rights. They were also missing out on the huge financial benefits built into the American tax code for married people. Also issues of child custody, spousal benefits, and caretaking came into play. Additionally, same sex couples sought legal marriage for many of the same reasons that former enslaved people sought marriage after the Civil War – to exert their civil rights in the face of a nation that had long denied those rights to them.
Jill Elaine Hasday, “Contest and Consent: A Legal History of Marital Rape” California Law Review, Vol. 88, 2000.
Kathleen Brown, Good Wives, Nasty Wenches & Anxious Patriarchs (Omohundro Institute and University of North Carolina Press: 1996).
Linda Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Published by the Omohundro Institute of Early American History and Culture and the University of North Carolina Press: 1997)
Nancy Cott, Public Vows: A History of Marriage and the Nation (Harvard University Press : 2000).