In 2000 you published a book about American marriage.
How did you approach the topic?
Man and Wife in America is a legal history of marriage in America from the late 18th century through the middle of the 20th century, a period I called “the very long 19th century.” I approached the topic by studying how ordinary men and women attempted to use the law to escape unhappy marriages or to claim the benefits of marriage. During this period, I argue, American marriage took its shape from the long history of coverture--the rules governing the subordination of wives to husbands within the marriage--but also from the immense mobility of American society in the 19th century. On the one hand you had this very repressive and restrictive understanding of marriage, but on the other hand it was incredibly easy for both men and women to leave marriages in 19th-century America.
How does marriage then compare to marriage now?
I think there is a big difference between marriage “then” and marriage “now”; certainly there is within the law. There are all kinds of things that were presumptively part of the law as late as the 1940s that can no longer be said. You cannot say, constitutionally, that it is a husband’s obligation to support his wife, although that was ordinary legal understanding in the 1940s.
Certainly there are continuities. In 19th-century America it was generally assumed that the choice to marry was the free choice of the individual. And a man and wife were supposed to cherish and love one another then, as they are now (there are many cultures in which married couples are not expected to love each other). But the list of differences is long. We assume today that couples negotiate the terms of their marriages privately; in the 19th century it was assumed that the terms of the relationship were fixed externally--by culture, by the law, and by religion. When people get married today they do so with the knowledge, on some level, that divorce is possible. That was not true in the 19th century; people left each other all the time, but they could not assume that they were entitled to a divorce. In the 19th century sexual behavior was legitimate only in the context of marriage. Today we take it for granted that sexuality belongs to the individual. Wives were legally subordinate to their husbands in all kinds of ways. Famously, or infamously, husbands owned an exclusive right--a monopoly--over their wives as sexual beings (rape, by definition then, was coerced sex with a woman not one’s wife). When the law spoke about the rights of parents, it meant fathers not mothers. Mothers had no inherent right to the custody of their children. Probably the central difference, which I think I underemphasized in the book, is economic. To a large extent marriage was built out of the need for people to establish households together. In the 19th century there were none of the laborsaving devices we take for granted, and it was virtually impossible for a person to live alone. Society was based on a division of labor between men and women. Marriage was how a man laid claim to the labor of his wife and of his children.
What is distinctively American about the history of American marriage?
Americans have always asserted that marriage is politically crucial--that society rests on the marital couple. Yet at the same time, from the middle of the 19th century on, there has been a constant sense that marriage is in crisis. It is fascinating to watch these arguments play out over time.
Marriage in the 19th century also involved an aspect of transformation, especially for women. By marrying you became a different being: woman became wife. This notion of a self transformed through marriage was closely connected to religious ideas about salvation and transformation. Vestiges of this idea are still with us. In a weird way, being married is part of being a grownup. I think this is one of the reasons why the gay marriage issue is so salient. If people lack the capacity to marry, it seems they lose a certain aspect of adult identity.
How do you view the current controversy about gay marriage?
I’m in favor of gay marriage. Marriage brings significant benefits through the tax code and other statutes and regulations and practices of late-20th- and early-21st-century life, and I believe it is discrimination to deny the benefits of marriage to same-sex couples. My book has actually been used in gay marriage litigation, most often in support of the argument that marriage has been a subject of innovation and change for the better part of two centuries and that gay marriage should be seen as a part of this evolution. A different argument in favor of gay marriage, also supported by the book, is that most of the arguments about the nature of marriage developed by opponents of gay marriage have already been declared unconstitutional by the courts in the context of traditional marriage. So for instance, when opponents of gay marriage assert that marriage is necessarily related to reproduction, or that marriage reflects innate differences between the sexes, they are offering reasons that have already been largely rejected and that belong to the past.
For me one of the most surprising things about the gay marriage controversy is that it raises a legal issue I considered at length in the book. In the 19th century, marriage was understood as an aspect of state sovereignty, and as a result there were dramatically different rules governing marriage and divorce in different jurisdictions. A couple could get divorced in Nevada and go back to New York, but New York might not recognize the divorce. You could be divorced in Nevada and a bigamist in New York. That situation ended in the middle of the 20th century, and today all states have roughly the same laws concerning divorce, marital property, and so forth; in effect the rules have been nationalized. But of course gay marriage has begun to recreate that fragmented federal system. Gay marriage is legal in Massachusetts today, but I doubt that Utah will allow it in my lifetime. When I wrote the book this was a purely historical issue, but suddenly it has relevance.