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The New York Times
OPINION
Taking Marriage
Private
By STEPHANIE COONTZ,
Op-Ed Contributor from the Web, November 26, 2007
Olympia, Wash. -- WHY do
people — gay or straight — need the state’s permission to marry? For most
of Western history, they didn’t, 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 couple’s 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 people’s
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 America’s 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 survivor’s benefits when he dies.
But a woman living for 19 years with a man to whom she isn’t 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 partner’s
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 survivor’s benefits. This
may serve the purpose of some moralists. But it doesn’t serve the public
interest of helping individuals meet their care-giving commitments.
Perhaps it’s 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.”
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