Many features of marriage that were once considered essential have been remade, often in the face of strong resistance, by courts and legislatures. Economic and social changes have led to increasing legal equality for the marriage partners, gender-neutrality of spousal roles, and control of marital role-definition by spouses themselves rather than by state prescription. Yet marriage itself has lasted, despite these dramatic changes. Not only that: it retains vast appeal.
Why? The core of marriage as an intimate and supportive voluntary bond has been preserved. Today constitutional law sees marriage as a fundamental right. Most Americans are legally allowed to marry as they see fit. But same-sex couples remain excluded in most jurisdictions. This exclusion stands at odds with the direction of historical change toward gender equality and neutrality in the legal treatment of marital roles.
Parallels between the voluntary consent joining a husband and wife in marriage and the voluntary allegiance of citizens to the new United States were common in Revolutionary-era rhetoric. The statesman and legal philosopher James Wilson saw mutual consent as the hallmark of marriage, more basic even than cohabitation. In a series of lectures delivered in 1792, he argued, “The agreement of the parties, the essence of every rational contract, is indispensably required.”
Because free consent—the mark of a free person—was at the core of the matrimonial contract, slaves could not enter into valid marriages. Considered property by law, slaves lacked basic civil rights, including the essential capacity to consent. Furthermore, marriage obliged those undertaking it to fulfill certain duties defined by the state, and a slave’s prior and overriding obligation of service to the master made carrying out the duties of marriage impossible.
After the Civil War and emancipation, even more states voided or criminalized marriage between whites and blacks or mulattos, and in response to immigration from Asia, a number of western states expanded the prohibition to Indians, Chinese, and “Mongolians.” As many as 41 states and territories for some period of their history banned, nullified, or criminalized marriages across the color line. These laws, too, were justified in their time by their supposed naturalness.
The prohibitions were challenged after the passage of the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment, but late nineteenth–century courts usually defended the laws by claiming that there was no discrimination involved: whites and persons of color were equally forbidden from marrying each other. No one was excluded from marriage; individuals were merely equally, so it was said, constrained in the choice of marital partner. Of course, the judicial defense of “symmetry” obscured the actual and symbolic force of such laws in a racially stratified society.
Many features of contemporary marriage that we take for granted were fiercely resisted at first. Yet they did eventually win out. Three of the most important such features have been in the areas of spouses’ respective roles and rights, racial restrictions, and divorce. (…)
Spousal roles and rights. Although gender parity between spouses would have been unthinkable at the founding of the United States, marriage laws have moved over time in this direction.(…)
Racial Restrictions. The fundamental right to marry was formally articulated in the 1923 U.S. Supreme Court case of Meyer v. Nebraska, but race-based marriage bans continued, with Virginia passing the most restrictive law in the nation the very next year.
In 1948 the Supreme Court of California, in Perez v. Sharp, became the first state high court to declare race-based restrictions on marriages unconstitutional. (…)
Divorce. Legal and judicial notions of divorce likewise have changed in response to the American view of marriage as founded in choice and consent. And in their evolution, they have strengthened that view.
Enabling couples of the same sex to gain equal marriage rights would be consistent with the historical trend toward broadening access. It would make clearer that the right to marry represents a profound exercise of the individual liberty central to the American polity.