by E. J. Graff
In other words, the option of civil marriage will indeed, as some people predict, split the incredibly multiplicitous lesbian and gay communities in two. It will expose that the varietists and the promiscuous are most properly grouped with other sexual dissidents of whatever orientation—that Edmund White and Michael Warner stand with Victoria Woodhull, Margaret Sanger, Isadora Duncan, Hugh Hefner, Bertrand Russell, J.F.K., and so many others. Opening marriage to same-sex couples may well shift our society’s sexual dividing line from the current and temporary line between homosexual and heterosexual back to one more historically familiar, a divide between monogamous and promiscuous.
Utopians have always been somewhat arrogant in their desire to impose new social forms on everyone. A dedicated few always attempt to transcend the pair—whether through celibacy or pluralism, through an austere socialism or an ecstatic sexual vision. But most of us have stubbornly continued as we are, refusing to have our emotions reformed away. For many people, sharing sex is an exceptionally powerful bond, one we want to dedicate just to each other. Why must the entire society abandon a form that most people seem to crave rather than reform it from within? Given the times in which we live, anyone who wants to live in a sexually complex universe—an Oneida of their own making—is certainly free to do so. Why should that therefore overrule the more common human desire to pair off, for two people to dedicate themselves to one another, to build a shared life and a home—and have it recognized by those around them, whether parents or governments? Nor could anyone rightly suggest that marriage is merely about the pair. In fact, marriage insists that the pair is never isolated— whether at the wedding celebration or in daily life, marriage recognizes that the pair is always intertwined with others, which is why society needs to impose some order on the form.
From this angle, what is marriage for? To recognize that a given pair has chosen each other as kin. Coupled lesbians and coupled gay men—if they so choose—belong.
FIVE:
Order
Everywhere a distinction exists between marriage, i.e., a legal group-sanctioned bond . . . and the type of permanent or temporary union resulting from violence or consent alone. This group intervention may be a notable or a slight one, it does not matter. The important thing is that every society has some way to operate a distinction between free unions and legitimate ones it. . . . remains true that marriage is not, is never, and cannot be a private business.
—CLAUDE LÉVI-STRAUSS, “The Family” (1956)
Nothing is more gratifying to the mind of man than power or dominion, and this I think myself amply possessed of, as I am the father of a family . . . I look upon my family as a patriarchal sovereignty in which I am myself, both king and priest.
— The Spectator (1712)
I desire you would Remember the ladies . . . Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.
—ABIGAIL ADAMS, letter to John Adams (1776)
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.
—U.S. Supreme Court, Griswold v. Connecticut (1965)
Until now, this book has treated two interlocking visions of marriage as if they were interchangeable: marriage as a socially defined institution, and marriage as an inner experience. This chapter looks at marriage from the outside in: at the social apparatus that defines and enforces marriage’s rights and obligations. To marry, in the public sense, means to expect the world to treat your life as shared—to announce that your sexual partner has first claim on you and your efforts. For the couple to fulfill the wedding vows that make mothers and strangers weep, that claim must be honored by others in things large and small, from holiday invitations to burial instructions. From conversation to finance, the couple’s bond can never entirely be severed from the polis, the collective, the society in which they live.
Usually those claims are made and honored day to day, in the private social circle: for instance, everyone at the office understands and pitches in when a particular employee is preoccupied and less than productive during his wife’s months of chemo. But now and then the larger institutional machinery is invoked to enforce a claim. You may go to court to insist that your parents were legitimately married and that you therefore count as an Athenian citizen—a status you get only because both your grandfathers fully intended to send money, power, and status your way. Or you may insist that you really were married and therefore should, after he dies, get to keep not only your two dresses and one cookpot, but also one-third of the land in his name. Or eight years after you moved out and left him to raise the kids, you may go back to court insisting that he’s unfit because he’s now living—unmarried— with another man, while you’re properly and heterosexually remarried, not just in your heart but in the eyes of the law. Society has a stake in seeing that each of those disputes are settled justly, based on some larger social consensus—partly because everyone else’s property, or citizenship, or relationship to their offspring may be redefined depending on how your dispute is resolved.
Given, in other words, that human beings are flawed—that we do not always treat each other as we should, and worse, that we disagree over what it means to “treat each other as we should”—marriage is not merely an inner experience but also a political institution, an accretion of decisions about how to order a couple’s promises and obligations. Whenever two parties disagree—a father wants to marry off a daughter who refuses; a wife says she was raped by a husband who insists her body is his property; a couple demand health insurance from an employer who says they’re not married—society must make some reasoned judgment about their dispute. And so marriage’s borders are always critical political territory, roiling with such questions as: Which sexual bonds or private promises create publicly policed commitments? On what grounds do we decide what’s just? When can society intervene to right private wrongs? Who adjudicates when those involved disagree? Most politically significant, whose interests define marriage, how, and why?
Inside Out or Outside In: Who Says You’re Married?
One of the most basic tensions in the history of marriage is between those two interlocking sides of marriage: marriage as a publicly policed institution and marriage as an inner experience. Which one turns your bond into a marriage: a public authority or your heart? Are you married when the two of you decide to care for each other for life, a decision you live out day to day, a decision only afterwards recognized by your community? Or is it the other way around: does the family, or church, or state pronounce some words over your head, write your names side by side in a registry, and bestow upon you a marriage, a license and legal obligation to carry out the responsibilities of affection and care? This may sound like one of those faces/vases illusions, and for good reason: marriage doesn’t exist unless both parts happen—two human beings behave as married, and everyone else treats them as such. But it does matter which side you think counts more: the decisions made about individual marriages will be quite different if you think marriage is a publicly conferred status or an immanent state. And each position’s internal contradictions can—and have—caused social havoc when unchecked.
In history, this debate is almost inextricable from the debate over which authority rules marriage. Who decides where the enforceable marriage is made—in your heart, or in a registry—and why? That decision might be less complex if the only people who have to recognize your marriage live within twenty-five miles, when the people who see you two behaving as married are also the ones who oversee the granting of the widow’s dower. And it might be more complex in our world, in which each of our daily lives goes beyond our circle of acquaintances to touch dozens of strangers and anonymous entities, from the motor vehicles registry to our children’s schools. The story of the public/private marriage line is therefore also a story of how marriage has shifted, in comparative legal scholar Mary Ann Glendon’s words, from custom to law.
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p; Roman marriage was the immanent kind: when challenged in court (over, say, whether a widow inherits or whether a child is legitimate), a marriage could not be proved by anything so simple as a public registry. A judge had to investigate whether the two lived together with affectio maritalis, “the intention of being married.” To be married, all a couple had to do was “regard each other as man and wife and behave accordingly.” What does that mean, “behave accordingly”? The Romans may never have defined it, but (like Americans and pornography) they knew it when they saw it. A judge sized up the couple’s “marital intentions” by such signals as whether she’d brought a dowry, or whether he openly called her his wife. Augustine and his concubine, for instance, were living together without affectio maritalis, since he was intending a later power-marriage. But had the same pair intended to be married— with no change in their behavior—they would have been. Marriage was a private affair: the state could police only the consequences, not the act.
While the Jewish configuration changed over the millennia, what remained central is marriage as a private act: only bride and groom could say the magic words that turned them into husband and wife. After many centuries the rabbis inserted themselves and their seven blessings into the ceremony, before the big feast, but even they knew they were not essential: the pair made the marriage within themselves. Which is why, in Jewish law, a court could neither “grant” nor refuse a divorce. If a husband’s inner willingness to be married evaporated (sometimes hers counted but often it did not), then the marriage itself had evaporated: the rabbinical court or bet din could merely decide questions of fault and finances.
Christianity, as we know, wanted nothing to do with marriage for centuries. When asked, some priests might come by and say a blessing as a favor, just as they’d say a blessing over a child’s first haircut. No one considered marriage sacred, as celibacy was: marriage was one of those secular and earthbound forms rendered unto Caesar. But as centuries rolled by, an increasingly powerful Church saw that marriage was central to ordering Europe’s civil and political life—not so much those few called to sainthood, sacrifice, and martyrdom, but the many ordinary folk who needed to be told how to behave.
And so the Church launched a battle for power over marriage’s rules, a battle that lasted roughly a thousand years. Today we have the peculiar impression that Catholicism has always had one vision of marriage, but for every marriage rule eventually imposed on Europe, the Church’s own debates were abundant. It first formally ruled on marriage in 774, when one pope handed Charlemagne a set of writings that defined legitimate marriage and condemned all deviations. After another five hundred years of struggle, the Church came up with a marriage liturgy and imposed its new and radical rules—the ballooning incest rules, the one-man-one-marriage rule, and most controversial, the girl-must-consent rule—on the powerful clans. “It is clear,” writes one historian, “that this attempt to impose order on matrimonial practice was part of a more ambitious plan to reform the entire social order. . . . regulating the framework of lay society, from baptisms to funerals,” the most intimate acts of most people’s lives. The Church’s push to rule marriage was slow and uneven but very determined. Here and there it would issue a decree and struggle with local nobles over whether it would be observed; now it would retract a bit to permit a lord to marry his dead wife’s sister or annul his existing marriage; then it would push forward again.
It was not until 1215 that the Church finally decreed marriage a sacrament—the least important one, but a sacrament nonetheless—and set up a systematic canon law of marriage, with a system of ecclesiastical courts to enforce it—and had a fair amount of people willing to observe those rules. By 1215, the year that the Fourth Lateran Council issued its matrimonial decrees, the Church had “broke[n] the back of aristocratic resistance . . . after lengthy individual battles with the nobility, kings included.”
And according to the Church, what turned two individuals into a married couple? It was—drumroll, please—the couple’s private vows.
Why a drumroll? Because the Church insisted that a private promise was an unbreakable sacrament—that marriage was an immanent experience, a spiritual reality created by the pair’s free and equal consent. That was practically a declaration of war against the upper classes, a radical and subversive idea emphasizing the sacredness of the individual spirit. Marriage, the Church insisted, was not just about land and power and wombs, but about human feelings.
Unfortunately, saying that consent makes a marriage can leave courts in as awkward a position as saying that affectio maritalis makes a marriage. How do you define consent? At precisely what point does marriage become “What God has joined, let no man put asunder”—an indissoluble sacrament? This second question was especially important, since—bucking all human precedent, and even going against the example of the Church’s own early decisions—the Church started to insist that consent once given could never be revoked. After a great many theological volleys and debates, theologians decided that a marriage was made and permanently sealed at the moment that the pair knowingly and willingly said “I marry you.” Even if they said their vows in absolute secrecy, with no witnesses. Even if they never actually consummated their union (how could a Church based on a virgin birth elevate sex to the marriage sacrament?). Words made the marriage—not family agreements or contracts, and not sex. It was a dramatic break with custom. The Church divided these words into two complex formula—verba de praesenti and verba de futuro—that no one but theologians and lawyers fully understood. The basic principle, however, was clear, at least to the Church itself: did you two say you are married? Then poof! You are.
That principle caused social havoc. For the upper classes, there were three problems: disobedience, disobedience, and murkiness. Disobedience 1: a balky adolescent could thwart carefully planned mergers and acquisitions, although locking her up and beating her usually brought her around. Disobedience 2: from age twelve and fourteen respectively, a girl and boy could simply meet in a back hall and say those foolish verba to each other—and be irrevocably married. (Romeo and Juliet, are you listening?) In one fifteenth-century British landed family, the Pastons, a seventeen-year-old daughter pledged herself to the family bailiff. For three years Margery’s parents shut her up in her house, until her fiancé somehow got a hearing with the local bishop. The bishop flatly commanded the young woman’s parents to bring her in—and after talking to her, ruled that Margery was married. (The Pastons disinherited her and her children and never spoke to her again—although they didn’t fire her husband the bailiff.)
The third upper-class verba problem was murkiness. Since not sex but words made a marriage, you couldn’t always tell when you were merely betrothed and when you were actually married. The Pastons’ eldest son John met a woman with whom he exchanged vows. But what kind? Verba de praesenti, meaning they’d already married each other, or verba de futuro, meaning they were engaged? Neither was sure. After that meeting the pair never spent a night under the same roof, rarely saw each other, and treated each other so coolly that he had trouble getting an appointment to see her—and yet when he finally decided to break things off, her “conscience required an annulment from Rome.” That took six years and a thousand ducats. If private consent makes a marriage, and if you’re not sure whether you consented, who but God—or God’s representatives in Rome—can say whether or not you’re married?
For the working classes, those verba could be just as problematic—but for more personal reasons. Individuals exchanged vows “under an ash tree, in a bed, in a garden, in a small storehouse, in a field, in a blacksmith’s shop, in a kitchen, at a tavern, and in the king’s highway”—to use some examples that got into English ecclesiastical court records—and then wound up in court having violent “he said/she said” arguments. Had they gotten married after all, or was one fabricating? Most female readers will grasp immediately how much men will promise (and later deny) to get a woman into bed—and most men can testify how women’s
memories can expand vague sentiments into definite commitments. But women could also be the ones who changed their minds, as when a certain John was about to travel overseas and Agnes begged him to marry her first. They said their vows in front of witnesses. On his trip John lost most of his money, however, and Agnes broke things off. He took her to the ecclesiastical court, saying they were already married—but she countered that, since they hadn’t had sex, they’d been only engaged. Which was, the Church notwithstanding, how most people saw things: verba put you under contract, but only sex transformed words into marriage.