What Is Marriage For?

by E. J. Graff

  The orderly Victorians, with their newly apotheosized family, were appalled: common-law marriage was one thing; open defiance of marriage was quite another. Leo Miller was arrested and jailed when he left his wife and openly moved in with his lover, declaring their opposition to marriage in a local free-love paper. Mary Gove Nichols was stripped of her children when she fled her abusive husband and ended up among the free-lovers. “Free love” was an imprecation hurled (often accurately) at all sorts of radicals, from Margaret Sanger to Emma Goldman, as a hint that clean-minded Americans should recoil from the sexual filth that lurked beneath any putatively high-minded movement.

  And of course, “free love” won.

  Yes, it won. The nineteenth-century free-lovers’ agenda now runs Western codes of sexuality and marriage (that is, if you leave out the item on the agenda that calls for the institution’s complete destruction). The ability to dissolve marriage when love dissolves; the freedom to form sexual relationships based on affection, without state sanction or intervention; equality between spouses in everything from property ownership to divorce; the idea that affection and companionship are marriage’s main goals: the free-lovers’ demands have been absorbed into our laws. Or to put it differently, although the nation-states are still registering and tracking marriage, our society has begun moving back to the old and honorable idea that marriage is something made by the couple, not by any outside authority—and has integrated some radically modern ideas about sexual equality and individualism.

  The free-love triumph has happened in daily life, in marriage statutes, and in court. In the 1960s, the Western nation-states, which had launched their control over marriage with such comprehensive absolutism, started pulling out of the business of regulating intimate life—freeing love from law, and in very dramatic language striking down such restrictions on marriage as race, debt, imprisonment, and employer approval. “The right to marry is an individual right d’ordre public which cannot be restricted or alienated; . . . the freedom to marry should in principle be safeguarded,” wrote the highest French court in 1968, deciding—in a radical break with historical precedent—that an employer could not terminate an employee for marrying. In the United States, Loving v. Virginia was written up in similarly freedom-touting language, saying, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness . . . one of the ‘basic civil rights of man’ . . . and cannot be infringed by the State.” Or as comparative legal scholar Mary Ann Glendon writes, in the middle of the twentieth century Western courts—all at once—started “sloganizing” about marriage. As if out of nowhere, “the idea of a basic individual right to marry has emerged. . . . a banner has been raised over the slowly shifting minutiae of marriage law. The banner is one of the gaily-colored pennants of the pursuit of happiness, and the words inscribed on it are ‘Freedom to Marry’ and ‘Marriage—A Basic Human Right.’ ”

  It is firmly within the main current of this triumphing marriage ideology that Madeline and I stand. We say we are married—and so we are, in all but law. If the inner life is what makes a marriage, who could have the hubris to judge the quality and commitment of mine? When the state has been sweeping away all shackles on marriage except the heart’s bond, how can it, in justice, refuse to recognize ours?

  To which definition do you subscribe? Do you believe you are married when you pledge yourself to your spouse, or when the state writes you into its registries? For most people the public vows and the state’s acknowledgment are simultaneous—although that’s not always so, as when Richard and Mildred Loving were refused recognition by Virginia. If you define marriage as the inner, immanent state, then perhaps you recognize that Madeline and I already are married. If you accept the more recent definition of marriage as something conferred by public authority, then perhaps you’ll recognize that it has been changing since it first gained the field, and that we belong under its widening twentieth-century “Freedom to Marry” banner.

  Living Together: Is It Marriage Yet?

  The question of whether it is the state’s sanction or one’s internal decision that makes a marriage—or to put it differently, is the marriage—affects far more people than just same-sex couples. Just as Western judges were pronouncing their new freedom-to-marry slogans, many people began deciding that they were so free to marry that they needn’t even inform the state. Some live happily outside the legal institution’s strictures, recognized only by family and friends, explicitly preferring a social to a state marriage. Other state-marriage dissenters want their private marriage to be semipublic so that they can gain a few of the more useful rights that come with state marriage, like shared health insurance benefits and the right to each other’s pensions—but without sacrificing their independence from the state institution. The debate over how legally to treat these relationships is taking place worldwide. For instance, the United States hosts an ongoing debate over “domestic partnership” benefits and registration; Australia has a comprehensive intermediate status called De Facto Relationships that recognizes unmarried heterosexual partners in inheritance, property division when splitting up, wrongful death suits, running family businesses, and more; France is considering legalizing “civil solidarity pacts,” or as one magazine calls it, ‘‘mariage light,” to recognize the more than two million couples, straight and gay, outside legal marriage. But while lesbian and gay couples, on the one hand, and unmarried heterosexual couples, on the other, are often treated as interchangeable in this debate, they raise two separate questions. Lesbian and gay couples cannot marry and are seeking entry to the full existing institution; unmarried heterosexual couples want simultaneously to refuse the state’s authority over marriage and to have their bond treated with full respect and public benefits. One movement wants to widen an existing institution; another wants—although it is never put precisely this way—to invent or rediscover an intermediate marriage, a demi-marriage that lives by custom rather than law, picking and choosing which authorities and statutes it will accept and which it will reject.

  Of course, an intermediate marriage class is nothing new. The Romans and many of the nations with civil codes based on the Romans’—the seventeenth-century Dutch, for instance—allowed women to choose between two kinds of marriages: marriages in which she transferred from her own family into her husband’s, took his status, lived under his power—essentially changing her subcitizenship from her own family to his—or marriages in which she kept her birth family’s name and status, not to mention the right to buy, own, sell, contract, sue, and make wills.

  Perhaps more surprising to us is the most common demi-marriage: the long blurry time between betrothal—a formal and financially binding contract—and wedding vows, a time that could last from many months to years. Until the Protestants got out their brooms in the sixteenth century, the intendeds often lived together, or at the very least got to know each other sexually. Italians might betrothe girls as early as age five and send them to live with their future husbands until the age of twelve, when they could say their final vows: one poor girl who’d been betrothed but “widowed” three times before the age of fourteen worried that the Catholic Church’s antagonism toward widows remarrying meant she would spend her adolescence and adulthood alone. Several historians consider today’s “consensual unions” to be a return to an older and more realistic habit of easing into marriage, a refusal of the legally sensible but emotionally absurd idea that “at quarter to one, you are not married; at quarter after one, you are.”

  The Western world is once again slowly crafting a state of demi-marriage, an intermediate status, that confers some but not all the benefits and responsibilities of the full form. “Crafting” probably implies far too much intention: bit by bit, here and there, demi-marriage is poking holes into social consciousness. Here and there a company has “domestic partnership benefits,” offering unmarried partners a few of the benefits it offers married ones. Here and there a nation—Aust
ralia, and soon perhaps France—insists that unmarried heterosexual couples who’ve demonstrated commitment in life if not in law must be treated as coupled. Here and there a nation—Israel, South Africa, Brazil—insists that a lesbian widow or gay male widower must receive her or his dead partner’s military pension. Here and there an American state allows an unmarried couple to adopt together, while its neighboring state does not. What society and authorities are being forced to recognize— piecemeal, sometimes grudgingly, sometimes with alarm—is that millions of Western couples are both married and un- at the same time, depending on whether you squint at them from the privately-agreed or the publicly-bestowed definition.

  But having considered what lesbian and gay couples and demi-married straight couples have in common, look again at what separates them. The heterosexual demi-marrieds have (presumably) made a choice to enter their demi-married state rather than take the plunge into full conubium, or legal marriage; lesbian and gay couples are barred from conubium, with no legal right to enter the full institution, and so like Roman slaves are defined into conterbernium by the state. And being banned from legal marriage is vastly different from rejecting it: it’s a sign of lower status, a banner saying your heart is beneath the notice of the society and the law.

  But in either case—whether the demi-married-by-default lesbians and gay men, or the demi-married-by-choice heterosexuals— demi-marriage forces Western law once again into the position of Roman judges attempting to judge affectio maritalis or fourteenth-century ecclesiastical courts trying to define whether the couple really did say those verba and pronounce the sacrament. How can a court, post-hoc, define what was in two partners’ minds—especially if they now squabble over what they intended, or if one partner is dead? How can you tell the consensual couples who want to be exempted from breakup or inheritance rules from those in which, for instance, a powerful man is yeah-yeah’ing a woman into concubinage, accepting her services as housemaid and hostess and mistress by promising to marry her until, just as her upper arms and thighs start to sag—what a coincidence!—he finds someone new? Without some accepted social form, society must repeatedly, case by case, untangle the complicated question of whether married-by-heart couples should be treated as married-by-law. Or to put it differently, whenever there are disputes, society has to play sorcerer and find a way to divine private intentions. How is a probate judge (or hospital administrator, or rent-control supervisor) to know whether you two really are or were living in affectio maritalis—that the woman who says she was your beloved spouse really was, that you didn’t consider her just a nurse or a sleazy adventuress or a lunatic roommate? We are returning, in other words, to the conundrum that one historian noted in medieval marriage: “The real hurdle for the courts was the persistent idea that people could regulate marriage for themselves.”

  Which brings us back to where this chapter began. There would be no need for the public institution of marriage—whether by custom or law—if human beings always treated each other with perfect justice. But as Mary Ann Glendon paraphrases Max Weber, “Deregulation in the name of freedom . . . means leaving the realm abandoned by the law to be governed by the play of private power relations.” Without some supervision—whether that’s sending your heavily armed brothers to demand your dower from your dead husband’s clan, or having the state instruct landlords to let a widowed spouse stay in his apartment of twenty years although it was listed in his dead husband’s name—disputes are won not by justice but by strength. Although imperfect by any standard, the centuries’ accretion of marriage laws are, today, society’s painstakingly hammered consensus on how a couple should justly be treated.

  While some of us might abjure any governing authority, the triumph of the secular state over religions, families, and tribes means that individual choice in marriage for the first time officially overrides any class, religious, ethnic, or other group allegiance. And rightly so. Some social commentators have suggested dissolving state registration and supervision of marriage entirely, returning marriage to the various religions. But who then would intervene in the children’s custody if, as recently happened in a custody case in Massachusetts, a formerly agnostic married couple divorced after one converted to evangelical Christianity and the other to Hassidic Judaism—two fundamentalisms whose worldviews and marriage rules are deeply at war? Who would decide questions of alimony if a wife found her husband intolerable after their Southern Baptist Convention endorsed the idea that a wife should “submit” to her husband, after she left both the faith and him? In a state committed to equal justice under law, it’s hard to swallow the idea of consigning individual marriages to the supervision of warring gods. The baggy pluralism of civil marriage law—big enough to swallow up every religious interpretation—is fundamental to the West’s contemporary public philosophy and capitalist economy.

  And yet law remains a gross, blunt, and tremendously limited instrument: it cannot recognize the nuances of every human relationship, from which sibling you’ve refused to speak to for twenty years to which friend you urgently want in charge of your hospitalized care. Most of human life rightly takes place outside the radar of the law—whether that’s the three-times-weekly call to your best friend or the intimate coworker bringing food every night when you’re wheelchair-bound after a car accident. What the law can do is recognize the single most important relationship most human beings throughout history have had: the one in which we share our bodies and our daily lives. Perhaps for today’s dissenters there should be some less-demanding marriage form, one that offers fewer benefits and fewer restrictions, a signature that lets people register their intentions in the eyes of the law, writing their own private marriage contract—or perhaps that too easily lets the stronger take advantage of the weaker, and we should bring back common-law marriage, with all its faults. Whichever way the West decides to recognize the growing category of demi-marriage, it will be returning to something more traditional than today’s standardized marriage rules.

  As society tries to come to a new consensus, it may be important to remember the history of perpetual dissent over the demi-married, the common-law couples, the verba-vowed, the affectio maritalis’d. “There are more problems in the world than solutions,” writes Israeli social commentator and novelist Amos Oz. “I must stress that I do not mean that there are many unsolved problems at the moment, but that in the nature of things there are more problems in the world than solutions.” That seems particularly true in the marriage wars. The question that has been fought over for millennia is not yet, and never fully will be, resolved: what is the just, or proper, or moral consensus on what counts as a marriage? Society’s task is always to find a way of enforcing that consensus, according to the social conditions of the time. And though there may not be solutions to every problem, marriage is always key political territory, critical to the individual who wants her or his life choices fairly observed—and critical to society as well, which wants individuals cared for fairly and property moved in an orderly way. State intervention in marriage—not to mention the state’s particular ideas about dividing up responsibilities and property— may offend, but what other authority could we possibly invoke to adjudicate disputes: religions, say, or clans?

  Lesbian and gay couples and our families are neither better nor worse than our heterosexual siblings: we too squabble over inheritance, epitaphs, hospital decisions, and breakups. Although one hopes that every marriage lasts happily ever after, we all know that’s a myth, whatever the sexes. When we—we humans, that is— break up we can do it so furiously that we willfully, angrily distort who owes what to whom. And although every happily married couple’s most fervent wish is to die simultaneously, few manage it: the one who’s left must suffer through the imperfect human fact that their beloved may have died without leaving clear signs about the bond, allowing landlords or siblings or parents to shove you out, no matter your twenty years of faithful arguments and caring.

  So what is marriage for? The public instit
ution of marriage, in Western democracies, is for applying a just consensus to private disputes, a consensus to treat each individual bond with respect and equality. Given that all human beings occasionally need such Solomonic intervention, same-sex couples belong.

  Remember the Ladies: Who Runs the Marriage?

  One of the charges levied persistently against marriage is that its most fundamental purpose is to put men in charge and keep women down—that marriage officially transforms them into servants or slaves. Is it true? Has marriage always and inevitably, to quote William Congreve’s The Way of the World, made her “dwindle into a wife” while he is “enlarged into a husband”? Or are there particular laws, customs, and rules that reshape husbands and wives into pairs that reflect the general public consensus on how to keep social order: owner and owned; autocrat and subject; separate but equal; best friends and genuine peers?

  Of course, we can never actually know how particular husbands and particular wives treated each other under different regimes. And so in this section we will investigate the slow rise of the theory—whether true or not in practice—of equality between spouses, the theory that reigns today.

  It’s true that there’s always a disparity between marriage in public theory and marriage in private practice. Every contented long-term couple can joke about the fact that marriage is an intimate little struggle for power, with each one wrestling for the upper hand in ways sometimes friendly and sometimes painful. Will we go to your family or mine for Thanksgiving? Will we buy the city townhouse that I want or the suburban single-family that you want? How can you possibly not see how filthy the bathroom is? Maybe only in fiction can we learn the inner story of marriage’s power struggles—or maybe only in a biographical study like Phyllis Rose’s Parallel Lives, which opens with her comment that “Every marriage is based upon some understanding, articulated or not, about the relative importance, the priority of desires, between its two partners. Marriages go bad not when love fades—love can modulate into affection without driving two people apart—but when this understanding about the balance of power breaks down, when the weaker member feels exploited or the stronger feels unrewarded for his or her strength.”