by E. J. Graff
As John Stuart Mill wrote in The Subjection of Women, “So true it is that unnatural generally only means uncustomary, and that everything which is usual appears natural.” If “female” can mean only one narrow thing, how do Frum, Wardle, and fellows explain what “female” essence is held in common by temporary Miss America Vanessa Williams, career invalid Alice James, Princess Diana, Gertrude Stein, and WNBA star Sheryl Swoopes? Can we consider the possibility that there are many ways to be female or male—to be human—and that a truly egalitarian society makes room for those differences? Can we recognize that there is no difference between a girl who loves mathematics and a girl who loves girls—that each girl violates the socially invented rules of “nature” by following her own inner nature? Frum doesn’t think so. He ventriloquizes his own opinions onto the sensible masses, who, he says, “feel—they are right to feel—anger and outrage when it’s proposed to them to abolish marriage and replace it with a new unisex partnerhood.”
And so we discover what really outrages Frum and fellows: female equality, or feminism. Which is precisely what excites me about same-sex marriage: a “new unisex partnerhood sounds thrillingly like what feminists have been battling toward for centuries. When same-sex couples enter the existing institution, not some back-of-the-bus version called “domestic partnership or “queer marriage,” marriage and divorce law will have to become even more gender-blind. When marriage is guided by the idea of two equal companions joining together in love, women’s rights more firmly anchors its laws. Lesbians and gay men have long known that two women or two men together invent themselves outside society’s gender expectations: who cooks and who mows the lawn, who takes care of the kids and who earns a living, are chosen personally rather than socially imposed. That vision may be difficult to offer to pairs who come “pre-gendered.” But once we can marry, jurists will have to decide every marriage, divorce, and custody question (theoretically, at least) for a pair of equal partners, neither having more historical authority, their lives defined by their actions. Just as the right wing correctly fears, our entrance might rock marriage toward its more egalitarian shore.
I am not suggesting that every marriage must be gender-equal. Some women even today believe that God wants them to serve their husbands, or that having men in charge is convenient. Each couple should feel free to argue through their own decisions about whether to sign up for the male-supremacy model of marriage, and to extol that model’s virtues in such public forums as op/ed columns and radio talk shows. But should those people be able to force me to live by their separate-but-(not-quite)-equal ideology, or should I be free to live by the gender-neutral ideology that rules the rest of today’s public philosophy and marriage law?
Nor would I suggest that male and female are precisely alike: obviously there are differences in biology and psychology, or I would not have spent my life falling so powerfully in love with women, drawn to men only as friends. But it’s easy for some heterosexuals to confuse their own personal differences from their spouses with god-given, sex-based universal differences between every pair of spouses—as if only sex-based differences lead people to the maturity and compassion and joy that so many of us find in marriage’s intimate and stubborn struggles. William Bennett writes, “marriage . . . is an honorable estate based on the different complementary natures of men and woman—how they refine, support, encourage, and complete one another.” But Bennett can only speculate—he cannot know—that the way he and his wife “refine, support, encourage, and complete one another” is so unlike the way Madeline and I do, that her and my very different “natures” cannot be “complementary” in any “honorable” way. Or to put it differently, Bennett cannot know for certain that his marriage is so entirely like every other male/female marriage: Marabel Morgan’s saran-wrapped obsequies, Franklin and Eleanor Roosevelt’s joined independences, Victoria and Albert’s regal domesticity, Virginia and Leonard Woolf’s astringent intimacy, John and Yoko’s passionate friendship, Ike Turner’s brutality toward Tina, Bill and Hillary’s unfathomable bond. Can Bennett possibly believe that every happy family must be happy in the same way? And even if he does, why should our society allow only one model, a model based not on our inner lives but on our genitals?
I would like to suggest that men and women are equal for the purposes of carrying out marriage’s contemporary duties: caring for each other lifelong, in sickness and in health, for richer or poorer, till death do us part. Which is my life’s most fundamental hope and goal: to do precisely that for the woman I adore. And if caring by two officially equal partners (however different their characters and gifts) is what marriage is for, then same-sex couples belong.
SIX:
Heart
Nothing can be more cruel than to preserve by violence a union, which at first was made by mutual love, and is in effect dissolved by mutual hatred. . . . I had my choice, ’tis true, of my prison; but this is a small comfort, since it must still be a prison.
—JOHN MILTON, “The Doctrine and Discipline of Divorce” (1643)
[N]othing is more dangerous than to unite two persons so closely in all their interests and concerns as man and wife, without rendering the union entire and total. . . . How many frivolous quarrels and disgusts are there . . . which would soon inflame into the most deadly hatred, were they pursued to the utmost under the prospect of an easy separation?
—DAVID HUME, “Of Polygamy and Divorces” (1742)
Since Marriage was instituted for the purpose of promoting the happiness of individuals and the good of society and since the attainment of those objects depends entirely on the Domestic harmony of the parties connected and their living together in a perfect union of inclinations, interests, and affections, when it becomes impossible for them to remain longer united . . . the good of Society no less than the well-being of individuals requires that it should be dissolved and that the parties should be left free to form such other domestic connections as may contribute to their felicity.
—American divorce petition (1791)
Love is moral without marriage, but marriage is immoral without love.
—ELLEN KEY (1915)
Press most Westerners on why they themselves married—pushing past those jokes about toasters or dental insurance, and leaving behind beliefs about the institution’s origins—and they’ll almost certainly tell you they fell in love. If they’ve been married a long time they might explain that today “love” means something different than when they first met; if they’ve been divorced or in therapy they might talk for a long time about their mistakes; if politically or academically inclined, they might launch into a dissertation about love as an illusion by which society justifies power imbalances; if religious, they may talk about the prayer and belief involved in keeping love alive. But almost all will consider “love” to be the acceptable justification for getting or staying married. A loveless marriage strikes most contemporary Westerners as a travesty, a great sadness, an emptiness at your life’s center. As a result, it’s easy to despise or pity or be frankly baffled by the aging CEO marrying a trophy wife and the young social climber who accepted him; by the widow remarrying for security; by the faintly antagonistic couple who stay together for the children; or by anyone—from southern Asians to Moonies—assigned in marriage to a virtual stranger. Romantic love is a kind of spiritual breath each of us was raised on, hopes for, dreams of, and expects in our lives. Those of us who have it can scarcely imagine life without it, as if we’d suffocate for lack of oxygen.
But wasn’t it always so? If this is new, as I’ve been suggesting throughout this book, why is literature so full of love—for instance, this perfect little sixteenth-century quatrain that so many English lit majors have by heart:
Westron wind, when will thou blow?
The small rain down can rain:
Christ, if my love were in my arms,
And I in my bed again!
You can surely tot up your own mental examples, beginning with Ovid’s metamorp
hosing lovers; Jacob falling in love at the well with Rachel; Cleopatra and Marc Antony; Tristan and Isolde; most of Shakespeare’s sonnets and plots.
Yes, of course, premodern folks could and did feel love—ranging from companionable affection to passionate desire—and even sometimes felt it for their spouses. But in this book we’ve discussed something different: the coronation of romantic love as the monarch of marriage. That’s what’s new: love as marriage’s public philosophy, displacing everything from finances to babies.
This chapter looks at two radical consequences of the falling away of all other purposes or social justifications of marriage. One is the idea that marriage can dissolve when love fades. The other is the idea that has led most specifically to our debate today over same-sex marriage: the idea that not your parents but you yourself should consent to and even (gasp!) choose your own spouse.
The shifting histories of both consent and dissent, of marriage’s entrance and exit rules, are just as contentious as everything else about marriage—in other words, far more than most of us might suppose. Marriage today is presided over by the cultural deity of intimate love yet is constantly tugged apart by the centrifugal forces of work and school and daily life. That conflict has been punditized widely and will scarcely be resolved soon. But it does bring us to a painful consequence of the shift in marriage’s public philosophy: divorce. Once emotional expectations rise, once marriage’s inner life is the marriage, mustn’t the death of love undo the marriage? And if marriage is immoral without love, then mustn’t a moral society change the rules of—and expect a dramatic rise in—divorce?
Dissent: Untying the Knot, or When Can You Say “I Don’t”?
It is a truth universally acknowledged that the more marriage is about property, the harder it is to break off. Equally true is the converse: when individuals and the economy can function without stable couples, society frees us to make and break marriages based not on our outer but our inner fortunes. But there is also a third truth, which many commentators have noted over the years: if society respects marriage, it must allow divorce.
And so we come to the penultimate section of this book, which is, appropriately, about an event that is—for many contemporary Americans—very likely to be the last act of the marriage. Every society’s battle about divorce rules is really a battle over this book’s question: what is marriage for? One 1920s witticism had it that marriage was necessary because without it you couldn’t get divorced. More seriously, if marriage is for having sex, then impotence undoes the marriage. If marriage is for love, then love’s loss undoes the marriage. Asking when, why, and how various societies let you divorce, in other words, lets us end with a rearview mirror survey of the long, winding, and very bumpy road that has been Western marriage.
Since Romans’ marriages existed simply because of affectio maritalis, or the intention of being married, the disappearance of that intention meant the disappearance of the marriage. Romans could divorce as privately as they married, simply by saying (with or without witnesses) this legal formula: Take back what is yours (him) or Keep what is yours (her). The words needn’t be pronounced in person. All she had to do was move out; all he had to do was drop her a letter saying things were over. How commonly those formulae were used, however, varied dramatically. On the one hand were the bone-tired farmer/senators of the early farm-based Republic, with an economy based on the couple’s labor. Since these working marriages couldn’t afford to come apart, the early Romans rarely divorced, and then only for extreme offenses like her adultery or his attempt to murder her. On the other hand were the later Empire conquerors, living on trade and gorged on plenty, who could get along financially without each other—and so felt free to divorce early and often, for no other reason than irritation. These folks shifted alliances like software programmers, although without necessarily losing any of the bonds they’d earlier made, since repudiating a spouse was no insult. Roman divorce didn’t create the kind of legal smash-ups we find in our own time, since those pragmatic aristocrats wrote exit rules into every marriage contract— and since everyone knew that he always got the children, while she always got her dowry back. If marriage was a private agreement whose purpose was to make legitimate offspring and to pass on property—and if no one imagined children needed the presence of both parents—why should it be anybody’s business (besides, of course, their families) whether the pair stayed together?
The Christians changed the history—indeed, the definition—of marriage with the famous phrase: “What God has joined together, let no man put asunder.” According to one theological historian, that sentence shocked Jesus’s listeners, “for instead of answering the question he had been asked about the grounds for divorce, he simply ruled out divorce altogether.” No divorce? Not at all? How could that be possible?
The good answer is that the Church was trying to protect women, preventing powerful men from discarding wives as soon as a marriage stopped being politically convenient or as soon as they lost their youth. The bad answer is the Church’s belief that marriage merely, as one ninth-century bishop put it, “designate[s] the use of the genitals.” Rejecting one set of genitals and selecting a new set to consort with was, in the Church’s view, polygamy: why should anyone get more than one living sexual playmate? If marriage was a necessary outlet for the always-sinful sexual impulse, then nothing but impotence should dissolve the marriage.
And yet that theory was put in practice only for about three hundred years. Or to put it differently, today’s infamous cascade of annulments actually brings the Church back to its traditional approach to marriage. In its early years the Church hadn’t enough clout to keep marriages together. Early medieval Germanic divorce decrees, for instance, include such “Christian” attitudes as this: “as between X and Y there is no charity according to God, but discord . . . they have decided that each of them should be free to enter the service of God in a monastery or to contract a new marriage.” And many early Church theologians did allow divorce: in the 700s, according to various Church canons, you could divorce your spouse if he or she got leprosy, attempted or plotted your murder, was captured or sold into slavery, or entered a religious order. If marriage was for sexual relations, then circumstances that prevented sex dissolved the marriage.
So when did the Church actually, and sternly, banish divorce? Probably just about the same time the Protestant Reformation reclaimed it: in the sixteenth century.
We’ve already seen that the Protestants’ middle-class moral uprising tried to sweep away the Catholics’ gap between theory and practice, its cobwebby accommodation of human frailty. No more sex before the wedding! Priests and ministers had to marry like anyone else! Will everyone (as Comstock later said) please behave! The Catholic marriage sacrament rested on the idea that your consent, once given (whether in words or by having sex), changed your soul’s status forever, merging you with your spouse—and could never be undone. The practical Protestants felt, instead, that marriage was a contract for companionship, and that it was not consent upon entering but living up to that contract that made marriage holy. If you violated your contract, you shattered the marriage.
And so, for the Protestants, the key question was: what was the essence of the marriage contract, or to put it differently, what behavior made matrimony holy? The answer varied from one reformer to another—but for none was it the emotional intimacy we venerate today. As one preacher wrote, “Anyone can be idolatrous, a heretic, impious, and yet remain a valid husband: but no one can be an adulterer and a husband, that is to be one flesh of two kinds.” Loss of affection was not a problem: committing a sexual sin was. And so many of the new Protestant communities pulled together marriage courts that delved into whether one of you had fallen (or had pushed the other). Did you both commit adultery? You were stuck with one another for life. Did your spouse refuse to have sex with you? Divorce granted. Did your husband beat you, refuse to let you attend church, humiliate you in public? Too bad. If marriage was an oasis of sexu
al righteousness, only sexual misbehavior canceled the marriage.
The Catholics bristled at the Protestants’ heretical idea that marriage could be unmade by misbehavior and at their stinging accusations that Catholic sexual and married life was wormy and rotten with loopholes. And so in 1563 the Catholic Church went on a new-broom sweep of its own. It tightened up its marriage rules in a host of ways—including finally writing into canon law the doctrine that marriage could never, ever, ever be dissolved. Never. Certainly not for any of those flimsy Protestant excuses, like “heresy, or irksome cohabitation, or the affected absence of one of the parties,” or “the adultery of one of the married parties.” After 1500 years of Christian history, the Catholic church was finally and seriously enforcing marriage as a lifetime, no-exit deal.
In our era, the difference in practice between sixteenth-century Catholic and Protestant positions on divorce may seem thin indeed. Very few people did manage to divorce, under either regime, and those who did were socially notorious. But the Protestants had introduced a key, subversive, and now familiar concept: the idea that a crime against the marriage undoes the marriage. Once opened that little crack, marriage’s exit door got pushed open wider and wider. Especially as the Protestants preached more and more about holy matrimony’s honorable innards, as the industrial economy pried apart the couple’s need for each other’s land and labor, the inner life increasingly edged onto the divorce stage. And as republicanizing nations divorced their kings, they also began calling for the right to divorce their spouses. The philosophical center of marriage, its definition and purpose, started migrating to that third and Protestant-nominated purpose: to “conforte, maintayne, helpe and counsaill”—or as William Bennett might paraphrase it, “refine, support, encourage and complete”—one another. A new social understanding—that since marriage was for affection, incompatibility of various kinds should dissolve it—kept making itself felt in law, a widening wedge in the divorce door.