http://www.nytimes.com/2007/11/26/opinion/26coontz.html
The New York Times
November 26, 2007
Op-Ed Contributor
Taking Marriage Private
By STEPHANIE COONTZ
Olympia, Wash.
WHY do people gay or straight need the states permission to marry? For
most of Western history, they didnt, because marriage was a private
contract between two families. The parents agreement to the match, not
the approval of church or state, was what confirmed its validity.
For 16 centuries, Christianity also defined the validity of a marriage
on the basis of a couples wishes. If two people claimed they had
exchanged marital vows even out alone by the haystack the Catholic
Church accepted that they were validly married.
In 1215, the church decreed that a licit marriage must take place in
church. But people who married illictly had the same rights and
obligations as a couple married in church: their children were
legitimate; the wife had the same inheritance rights; the couple was
subject to the same prohibitions against divorce.
Not until the 16th century did European states begin to require that
marriages be performed under legal auspices. In part, this was an
attempt to prevent unions between young adults whose parents opposed
their match.
The American colonies officially required marriages to be registered,
but until the mid-19th century, state supreme courts routinely ruled
that public cohabitation was sufficient evidence of a valid marriage.
By the later part of that century, however, the United States began to
nullify common-law marriages and exert more control over who was
allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks,
mulattos, Japanese, Chinese, Indians, Mongolians, Malays or Filipinos.
Twelve states would not issue a marriage license if one partner was a
drunk, an addict or a mental defect. Eighteen states set barriers to
remarriage after divorce.
In the mid-20th century, governments began to get out of the business
of deciding which couples were fit to marry. Courts invalidated laws
against interracial marriage, struck down other barriers and even
extended marriage rights to prisoners.
But governments began relying on marriage licenses for a new purpose:
as a way of distributing resources to dependents. The Social Security
Act provided survivors benefits with proof of marriage. Employers used
marital status to determine whether they would provide health insurance
or pension benefits to employees dependents. Courts and hospitals
required a marriage license before granting couples the privilege of
inheriting from each other or receiving medical information.
In the 1950s, using the marriage license as a shorthand way to
distribute benefits and legal privileges made some sense because almost
all adults were married. Cohabitation and single parenthood by choice
were very rare.
Today, however, possession of a marriage license tells us little about
peoples interpersonal responsibilities. Half of all Americans aged 25
to 29 are unmarried, and many of them already have incurred obligations
as partners, parents or both. Almost 40 percent of Americas children
are born to unmarried parents. Meanwhile, many legally married people
are in remarriages where their obligations are spread among several
households.
Using the existence of a marriage license to determine when the state
should protect interpersonal relationships is increasingly impractical.
Society has already recognized this when it comes to children, who can
no longer be denied inheritance rights, parental support or legal
standing because their parents are not married.
As Nancy Polikoff, an American University law professor, argues, the
marriage license no longer draws reasonable dividing lines regarding
which adult obligations and rights merit state protection. A woman
married to a man for just nine months gets Social Security survivors
benefits when he dies. But a woman living for 19 years with a man to
whom she isnt married is left without government support, even if her
presence helped him hold down a full-time job and pay Social Security
taxes. A newly married wife or husband can take leave from work to care
for a spouse, or sue for a partners wrongful death. But unmarried
couples typically cannot, no matter how long they have pooled their
resources and how faithfully they have kept their commitments.
Possession of a marriage license is no longer the chief determinant of
which obligations a couple must keep, either to their children or to
each other. But it still determines which obligations a couple can keep
who gets hospital visitation rights, family leave, health care and
survivors benefits. This may serve the purpose of some moralists. But
it doesnt serve the public interest of helping individuals meet their
care-giving commitments.
Perhaps its time to revert to a much older marital tradition. Let
churches decide which marriages they deem licit. But let couples gay or
straight decide if they want the legal protections and obligations of a
committed relationship.
Stephanie Coontz, a professor of history at Evergreen State College, is
the author of Marriage, a History: How Love Conquered Marriage.