by E. J. Graff
Whose harmony and concord did The Times mean? His. And that jarred too much with the new reality and ideology of choice and affection rather than duty and obedience. One 1868 British magazine article—referring to the statutes that grouped women with others incompetent to manage property—was entitled “Criminals, Idiots, Women and Minors: Is the Classification Sound?” In the 1870s, “Millicent Garrett Fawcett had her purse snatched by a young thief in London. When she appeared in court to testify against him, she heard the youth charged with ‘stealing from the person of Millicent Fawcett a purse containing £1 18s. 6d., the property of Henry Fawcett.’ Long afterward she recalled, ‘I felt as if I had been charged with theft myself.’ ” In the new economy, how could such visible tyranny compete with Locke’s ideal of one’s right to life, liberty—and property?
You can tell that the anti-reformers were losing when they started insisting that any change would bring down God, Nature, and civilization. A New York legislator pleaded with his fellows to remember “the complexity and fragility of marriage as a social institution . . . If any single thing should remain untouched by the hand of the reformer, it was the sacred institution of marriage . . . [which] was about to be destroyed in one thoughtless blow that might produce change in all phases of domestic life.” A British Parliamentarian announced that the proposed law was “contrary not only to the law of England, but to the law of God.” The British Saturday Review wrote that such proposals “set at defiance the experience of every country in Christendom and the common sense of mankind” and that “there is besides a smack of selfish independence about it which rather jars with poetical notions of wedlock”; apparently letting him control her property involved no such “selfish independence.”
All these arguments are being used against same-sex marriage. Those who fear change are not particularly inventive from one age to the next: they’re always predicting an uprush of infidelity, vice, divorce; the breakup of families and society; a change in marriage from something holy to something merely sensual; and of course the death of marriage and civilization itself. But once common sense, or poetical notions, or God’s Will, or Nature—and not economic reality—are what’s at stake, change is on the way. All the American states, Canadian provinces, and even Britain had passed a Married Women’s Property Act by the nineteenth century’s end. Eventually these statutes allowed married women to keep their wages, profits, and businesses—so women didn’t entirely disappear as they stepped down into the tiny, confining economic room that was marriage.
At least that was the theory. What did those statutory changes mean in practice? Not much, courts kept insisting—using pretty much the same language as had pundits and legislators. Judges were, after all, men of their time, and they tended to believe profoundly that it was immoral to allow women to manage their own lives without being overseen by husbands. One Canadian judge almost visibly washed his hands when he wrote, “It may startle a good many lawyers to be told that . . . the Act [of 1872] enables a woman, living with her husband, to claim her daily or other earnings as her separate property. . . . We are not responsible for the consequences of an Act of the Legislature.” A Maryland judge refused to recognize the clear instructions of his state’s Act, writing that it was “of doubtful propriety. . . . virtually destroying the moral and social efficacy of the marriage institution. . . . What incentive would there be for such a wife ever to reconcile differences with her husband, to act in submission to his wishes, and perform the many onerous duties pertaining to her sphere? Would not every wife . . . abandon her husband and her home?” Clearly, women’s “natural” sphere was not so natural after all; keeping wives home required not just vows of obedience but also of poverty.
The funny thing, of course, is that those jeremiads were right. If women can make their own livings separate from the family economy, they are more able and willing to leave when they’re unhappy. Today’s social commentators, on the left and on the right, straightforwardly agree that society could cut divorce if it would “require women to leave the work force.” But no one today would dare suggest shoving women back into involuntary servitude (except backhandedly, by insisting that children need mothers at home). It would be wrong under today’s philosophies—and besides, rhetoric can’t do a job once enforced by worklife. Today’s postindustrial economy values brains more than brawn—and so the old gendered division of labor is falling. In their massive and influential study American Couples, sociologists Blumstein and Schwartz write about “the intrusion of work into the lives of the couple”—a testament to how far we are from even the memory of family as a cohesive labor unit, from the six-year-old minding the fire to the adolescent apprentice mixing the dough to the mistress taking the bread to market.
The right for married women to return to work, and then the right for all women to work for equal pay, has been fought over yet another century of feminism. The fact that we now take women’s work for granted shows up in a very weird phrase: the “marriage penalty,” or the fact that two people in the same tax bracket are taxed more if they marry. Since married couples in which only one partner works get more favorable tax treatment, we believe that a wife and mother should work without being penalized by taxes—something that might have shocked our nineteenth-century judicial commentators. But the return of women into the market could not be halted—because capitalism has kept spinning each of us outward into individual units. Husband and wife are no longer interlocking parts required to make the economy’s wheels turn.
Ignoring It: Can’t Buy Me Love
Backed by the coin and plastic and cyberbytes of the new economy, marriage for love has beaten marriage for property—in our wallets and our hearts. Today Americans are work-units as mobile as cellular phones, making a living (or failing to) by making their own decisions about which talents or inclinations to trust. No longer does everyone have to live in a “family”—whether that’s one’s bio-family or one’s employer’s—in order to survive.
The new ideology has come so far that—in an almost complete overturning of tradition—“courting couples may discuss their prior sex lives while never raising the question of their economic histories.” The meaning of marriage has turned topsy-turvy when you find letters like this in the New York Times Magazine: “It is unacceptable . . . [for] anyone’s wife to sit at home expecting to be supported financially. Women have to learn to earn, save and invest their own money and not have more children than they can realistically afford to support on their own.” That concept stands in shocking opposition to the old concept of family as corporate holding pen, family as joint labor endeavor. The letter-writer’s sentiments are easy enough to understand for those of us who’ve seen our divorced mothers, aunts, or friends dropped on their butts with a houseful of children, surviving on bulk peanut butter and generic shampoo while they desperately juggle the rent and car repair and utility bills (and beg for help with the kids’ college expenses). The new world’s economic bargain—the triumph of the idea that each of us rules our own economic destiny—has brought its own conflicts and penalties.
But along with the ideology of freedom and the de-gendering of work, any link between marriage and money now strikes us as a kind of prostitution. A 1968 French high court wrote that an employer’s no-marriage clause was an unreasonable restriction of “the right to marry and the right to work”—rights that would have been shocking to those authorities that demanded a jailer’s widow prove she had a serious marriage prospect before they renewed her contract. This freedom to marry has been invented even for those once-maligned paupers as well. In 1978’s Zablocki v. Redhail, the U.S. Supreme Court ruled that the state of Wisconsin could not bar a man from marrying because he was a “deadbeat dad,” behind in paying child support for his illegitimate child, announcing that such a rule was “a serious intrusion into . . . freedom of choice in an area in which we have held such freedom to be fundamental.” Entertainingly, the Court didn’t even manage to notice that its “fundamental” freedom wa
s entirely a twentieth-century invention. Even more dramatically, in 1987 the U.S. Supreme Court struck down a Missouri prison’s refusal to allow its inmates—convicted felons, people who couldn’t vote, much less support their wives or future children—to marry, since “inmate marriages, like others, are expressions of emotional support and public commitment . . . having spiritual significance.”
Emotional support? Public commitment? Spiritual significance? It’s the kind of rhetoric you get when you drain marriage so that it’s no longer financially central, freeing people to examine their own hearts. Law tends to follow social reality—and so has begun to acknowledge that while losing one’s family may be painful, losing one’s job may be deadly. You’re much more likely to sue an employer for breach of contract than an abandoning fiancé. Since losing your marriage won’t necessarily throw either of you on the streets, since—theoretically—you can each make it on your own, marriage is now up to you two. Once the “family” is no longer the only way to make the economy turn, once each individual can be a lawyer or locksmith or landlord, more variety is possible in how each person can live.
And, not coincidentally, in how each person can feel. Trained from birth to ask ourselves what we want to be when we grow up, how can Americans be expected to guide our marital—and sexual—hopes and lives by anything but that same inner voice? As Max Weber put it in The Protestant Ethic and the Spirit of Capitalism, “Labour must . . . be performed as if it were an absolute end in itself, a calling. Hence the scrutinizing of one’s self, the tremendous habit of it.” That tremendous habit of self-scrutiny spills over into affection, love, and marriage—which now come in that order. It’s quite entertaining to imagine Jane Austen discovering that, in 1996, a book called The Good Marriage doesn’t talk about money at all; its subtitle is How & Why Love Lasts, with a celebratory conclusion about marriage as a psychological experience replete with developmental “tasks.” But these are not to be sneezed at, even economically: if we want a successful capitalism, pursuing the inner life matters. Adam Smith’s economy could not run by the obedience demanded by feudal marriage codes.
In the 1970s, Western legislators followed their high courts and their citizens’ understanding, and changed family law to fit new realities. No longer did codes explicitly require “husbands” to support “wives”; rather, two equal “spouses” shared equal responsibility. The West German Civil Code, for instance, was revised in 1976 to get rid of the words “husband” and “wife” and now reads, “The spouses are mutually obliged to adequately maintain the family by their work and property. If the running of the household is left to one spouse, that spouse as a rule fulfills his duty to contribute to the support of the family through work by managing the household.” Once women and men can earn and live alone; once husbands and wives are theoretically equal at work, in bed, and in chores; once marriage is for love and not for money—how can society fairly bar the marriage of two people of one sex?
Sharing It: So Who Needs Marriage?
Okay, so the economy can run without marriage. And theoretically, each of us can make our living on our own. So why not live alone—or live with someone without any formal ties? Why—straight or gay—marry at all? My young friend Mitch, now making his way through law school, tells me he’s waiting to read this book to find out why in the world he and his girlfriend should marry. Isn’t legal marriage just an atavistic throwback to a feudal world of family property, of men’s desire to control and patrol women’s reproductive organs—or, to look at it from a swinging-bachelor point of view, of a woman’s desire to tie down some man while her attractions are still fresh? Does today’s legal marriage deserve Gertrude Stein’s comment about Oakland: there’s no there there?
We all know the social trends. Children leave home and live alone before marrying. Husbands or wives leave when the marriage becomes intolerable. More and more people choose to live alone rather than settle for a less-than-good marriage—a “good” marriage in psychological terms, that is. Meanwhile, others who live happily together wonder why they should bother with the law. The U.S. census found that unmarried couples—defined as two unrelated adults of different sexes sharing the same household—increased almost five times between 1970 and 1988, from 523,000 to 2,588,000. The U.S. census category of “unrelated individuals” living together jumped 76 percent from 1970 to 1980, another 34 percent between 1980 and 1990, and then another 10 percent by 1997: although some of these are roommates, many are life partners. What’s the just way, in legal terms, to treat those unmarried couples? Sooner or later, any two human beings will disagree over whose interests count. How does society decide when and whether those unmarried couples are equivalent to married ones in the many financial questions that regularly come before family law courts?
Sure, postindustrial capitalism has set us free to exchange our hearts rather than our wallets when we marry. But society cannot fully cut the link between marriage and money. As sociologist William Goode writes, in a family “people are actually producing goods and services for one another. They are buying objects in one place, and transporting them to the household. They are transforming food into meals. They are engaged in cleaning, mowing lawns, repairing, transporting, counseling—a wide array of services that would have to be paid for in money if some member of the family does not do them.” Gardening, decorating, doing the wash, patching the basement when it leaks—it’s a lot easier to divide tasks than to handle everything yourself. And if your spouse gets rich—unless he or she is a miser or a brute—chances are you also will be eating better, or driving a nicer car, or taking a fancier vacation. Marriage is a shared legal mailbox, a convenient way to tell all society’s institutions that you two have chosen to mingle your fortunes both emotionally and financially—while allowing those institutions to hold you responsible for each other in return.
Of course, neither the word “married” or “unmarried” can possibly encompass whatever the two of you are to each other—best pals or intimate enemies; passionate lovers or exhausted parents who can’t remember the last time you had sex; a pair who’s shared bed and breakfast every day for fifty years or commuter academics who see each other on alternate weekends; a harried homemaker and a wage-earner with half a dozen kids; a childless pair of D.C. power brokers who take for granted each other’s dalliances. All that variety—quite rightly—gets collapsed in the eyes of the law. While marriage may be many things—sacred, personal, sexual—its civil incarnation is an unbelievably comprehensive system for sorting out disputes over who’s entitled to what, especially at life’s extremes.
Marriage laws and rules weave a much more delicate and invisible web than most of us know. “Married” is a shorthand taken seriously by banks, insurers, courts, employers, schools, hospitals, cemeteries, rental car companies, frequent flyer programs, and more—a word understood to mean that you two share not just your bedroom but the rest of your house as well. In the United States, the General Accounting Office issued a January 31, 1997 report listing 1,049 “federal laws in which benefits, rights, and privileges are contingent on marital status.” Each state also has several hundred of its own. We can grasp the scope of those rules by glancing at some that fit each part of the marriage vows: for richer and poorer; in sickness and in health; and till death do us part.
For richer, for poorer . . . Civil marriage is a kind of legal membrane that allows two people to share their vital financial blood, to help care for each other and their children, if any. The wedding itself is no longer an occasion for receiving your life’s biggest one-time infusion of property, no matter where you registered for gifts: in fact, if you have the kind of wedding many people have—spending $10k or more—it might be a net cash loss.
But while the wedding may not suddenly improve your bank balance, civil marriage still does dramatically alter the pair’s financial relationship in the eyes of the state. A legally recognized marriage allows spouses to pass property back and forth without counting it as a tax gain or loss on ei
ther side. The law gets excrutiatingly detailed about what exactly can pass within that legal membrane. Copyright ownership, farmlands, cars, trailers, boats, planes, Puget Sound sea urchin licenses, Cape Cod clamming licenses—all can pass (or be sold!) between spouses without taxes. When the federal government acquires certain lands for national parks, either spouse—no matter who had title at the time—gets to use those lands until death. If you win the Massachusetts lottery, you can assign your winnings to your spouse (but no one else). On the flip side, you and your spouse are both restricted by limits on either’s authority. If she’s a member of the Massachussetts Horse Racing Authority, say, or an auto-dealer inspector, or on the Board of Land Surveyors, you better not have any big racing winnings, or take any free cars from those dealers, or have any financial boon from land surveying.
Does all that financial and regulatory unity sound commonsensical, even . . . natural? Natural it’s not—except in the sense that human societies “naturally” try to thrash out arrangements that seem just. All these details have been argued out painstakingly over the years, in geologic layers of statutes and debates. In most of the West, none of it applies to Mitch and his girlfriend, or to Madeline and myself.