The prospect of marriage equality raises basic questions of what marriage is, how it came to be that way, and how it’s evolving. Here’s how Judge Vaughn Walker addressed those questions in his smackdown of Proposition 8:
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
It’s a marvelous vision of marriage as degendered – one I’m happy to sign onto. But he harks back to a history of marriage that never existed. If we rely on a rosy view of the past, it’s gonna be harder to move into the future.
Once marriage equality is achieved as a constitutional right, then, yes, gender will no longer form “an essential part of marriage” – but we’re not there yet. We are still groaning under the yoke of history. And throughout history, at least since the dawn of agriculture and civilization, marriage has been saturated with gender inequality. Indeed, marriage was unthinkable outside of gender inequality, and one of its primary purposes was to preserve a gendered hierarchy. (I’ll leave aside racism, because “race” is a relatively modern invention; suffice it to say that membership in tribes, religions, nations, and various other in- and out-groups has never been irrelevant to marriage.)
From its outset, marriage was a thoroughly patriarchal institution. It raose along with civilization to assure men that their children were, in fact, their heirs – and not the progeny of another man. The only way to guarantee this was to control women’s sexuality. And that control spread into every facet of respectable women’s lives. (The disreputable could be prostitutes or concubines. They, too, remained subject to male power, just in a different key.)
Love, of course, was beside the point. Consider the good ole days in ancient Assyria. Men could sell their wives (and children) into slavery, or pawn them in cases of debt. Husbands could legally kill their wives under certain circumstances. A daughter’s virginity had considerable monetary worth. Men could have sex with concubines with impunity, while women who committed adultery faced the death penalty. The woman’s illicit partner risked the same fate, but don’t mistake this for gender equality; it just nailed down the principle that a respectable woman’s sexuality always belonged to a man, whether her husband or father. It also signals that not all men wielded equal power under early patriarchy. As in today’s fundamentalist Mormon sects, lower-status men could be excluded from power and possession. Patriarchy was a sweet deal for the patriarchs – the high-status, property-owning men. It sucked for everyone else.
Christianity and Islam both initially enhanced women’s status, but neither made marriage egalitarian. Christian women were allowed to choose sacred virginity over marriage, but the woman who chose to marry was still subject to her husband’s rule. Islam reduced the number of wives to four – which was an improvement over the massive harems that rich men held in the Prophet’s day. However, like Christianity, Islam proclaimed men the head of the household.
Even a century ago in the U.S., most women had little choice but to marry for economic survival. Legally and economically, most found it difficult to leave a bad marriage before the 1970s. The concept of rape within marriage was unrecognized forty years ago. Companionate marriage – the practice of marrying for love and friendship – only took firm hold in post-WWII America. The new ideal didn’t erase millennia of patriarchy, but love started to undermine the notion of the husband as head of the household. So did the nascent feminist movement of the 1960s. Both love and feminism required that a husband view his wife as his equal, not as an object.
So far, love and feminism haven’t been quite enough to revolutionize marriage. Some men – and not a few women – remain deeply invested in patriarchal arrangements. For instance, Sam Schulman at the Christian Science Monitor knows exactly what marriage is for: “protecting” women’s sexuality:
Among the many different versions of marriage in human history, very few of them have supplied the high-minded qualities [intimacy, inclusion, etc.] that the plaintiffs feel is their right. The vast majority of marriages in the past, perhaps a majority even now, were dictated by families, clans, holy men or magicians, and enforced on the bride and groom by social pressure, enforced if necessary with brutality and violence.
True, many marriages promote loving intimacy and enduring fidelity, but that’s an outcome of the relationship itself – not the raison d’etre for the institution. In primordial terms, marriage only exists at all – in all of its permutations, pleasant or barbaric – because of the nature of human heterosexuality. As a species, we need to protect female sexuality in order to assure ourselves of a future.
Marriage is a necessary defense of a woman’s sexuality and her human liberty from determined assault by men who would turn her into a slave, a concubine – something less than fully human. Human communities need to give women some additional degree of protection – through law, custom, religious decree, or sacrament – generally some combination of all three, neatly summarized by the plaintiffs, who demanded the sacred and the eternal from the state of California.
Of course, marriage’s power to protect women is far from perfect, but no human institution is. Parents, too, sometimes do awful things to their children. …
Heterosexual relationships need marriage because of inferiority: the physical inferiority of sexual defenders to sexual attackers and the moral inferiority of male sexual attackers
Marriage is not about couples or lovers – it’s about the physical and moral integrity of women. When a woman’s sexuality is involved, human communities must deal with a malign force that an individual woman and her family cannot control or protect.
Modern marriage is only the least worst version of marriage that has emerged from all this – but it is still necessary for women. What protects women, ultimately, is that marriage laws and customs confer upon her independence something extra – dignity, protection, sacredness – that others must respect. And if this quality can be bestowed upon anyone, even those not in intersexual relationships – it reduces, even dissolves its force.
What’s another word for “protect”? Yup: C-O-N-T-R-O-L.
The rest of Schulman’s argument is simply incoherent. So women’s sexuality needs protection, and marriage will do the trick? Um … protection from what, exactly? Schulman never spells out the nature of the threat. Let’s assume it’s not mere slut-shaming but outright rape. How, precisely, can a husband protect his wife from being raped? Are husbands to accompany their wives everywhere, Uzi in hand? How do we explain rapists’ propensity for targeting both single and married women willy-nilly? Does my wedding ring function as kryptonite, cleverly disguised as bling?
As if he (and we) weren’t already hopelessly confused, Schulman also states that an individual family cannot adequately protect women from “a malign force.” How, then, is marriage supposed to protect women at all? It’s not as though the whole community encircles the houses of married ladies while throwing the single gals to the wolves.
Then there’s Schulman’s odd obsession with dignity. Why would marriage bestow dignity on women (but not men)? Could it just possibly have something to do with women being presumptively sluts if they’re not married? (That’s the point where I became pretty sure that Schulman wasn’t about to shield women from slut-shaming.) Why is my dignity as a married woman incompatible with the dignity of men and LGBT people? Aren’t they threatened by violence, too?
And sacredness, for pete’s sake! Why is this only accessible to heterosexual women? Why link sacredness to marriage, rather than that historically venerated state – motherhood – unless it’s assumed that all wives will automatically be mothers, too? (Note: I’m not arguing for motherhood as sacred. I’m just pointing out a likely elision in Schulman’s worldview.) And how do I get my chunk of sacredness, given that I only go to church on Christmas Eve?
Bizarrely, Schulman seems to be pining for old fashioned patriarchy, minus the polygamy, plus a little bit of feel-good “dignity.” That particular combination was born in the ashes of WWII and expired between 1963 and 1967. It’s not our world. As Amanda Marcotte points out at Pandagon, these days “we allow single women to live alone and they don’t slip into concubinage …”
Schulman can only picture (respectable) women as sexual victims or saints; he can’t imagine autonomous female sexuality. No word from him, either, on how patriarchal marriage has always co-existed like pigs in the mud with prostitution and/or concubinage. In fact, maintaining “respectable” women along with male sexual license logically requires prostitution.
Schulman got one thing right. Since the advent of civilization, marriage has been “enforced” by “brutality and violence.” The past forty years are a ginormous anomaly in the history of marriage. So we really can’t look for a usable history of marriage rooted in tradition. All we’ll find, instead, is a long trail of cautionary messages.
The only usable history is one that starts in the nineteenth century, tracing the evolution of marriage away from its patriarchal roots and toward equality of both partners. Linda McClain at Feminist Law Professors explains how the testimony of Nancy Cott – a renowned historian of marriage and gender roles – helped shape the Perry v. Schwarzenegger ruling:
Aided by expert testimony of historian Nancy Cott, Judge Walker carefully reviews how marriage laws used to mandate different roles for men and women and how California, like other states, has abolished all such restrictions EXCEPT the one requiring that civil marriage be the union of one man and one woman. This provides a powerful line of argument because the U.S. Supreme Court has previously struck down laws rooted in gender role stereotypes rather than ‘real’ differences between the sexes. And it has made clear (for example, in Planned Parenthood v. Casey) that coverture and other gendered rules of marriage do not reflect contemporary understandings of the federal constitution, the family, or of the rights of women and men.
Judge Walker further concludes that appeals to ‘tradition’ alone cannot justify the continued application of this different genders rule. This is a potentially powerful argument since, as his opinion points out, both bars on interracial marriage and fixed gender roles in marriage were defended at the time as central to marriage and yet were also repudiated as inconsistent with evolving understandings of marriage.
Exactly. Coverture is dead; women now remain legal persons even after they marriage. (So take that, Sam Schulman!) We live in a world where gender roles are fluid in hetero marriage – where men change diapers and women frequently outearn their husbands.
Granting marriage equality indeed threatens traditional marriage. It undermines husbands’ patriarchal right to lord it over wives and children. It delegitimizes the control of women’s sexual and reproductive lives. Those changes won’t hurt my marriage one bit, but they sure pose a challenge to the guy who thinks he ought to be able to hit his wife as long as he’s the primary breadwinner.
We are not returning to some pure, unsullied history of gender equality. That history never existed. What we’re really doing is moving forward into a new era where marriage will cease to be a tool of oppression. This is a revolution.
No wonder some folks are nervous. To them, I would say: We are about to make history. Dare enough – trust enough – to relinquish control, embrace love, and see how much richer our lives will be when, as Judge Walker writes, “marriage under law is a union of equals.” Dare enough – trust enough – to help make history.