Tuesday, November 27, 2007

Why Does the Government Regulate Marriage?

Lady writing in the New York Times asked a question I've asked here before. I didn't expect anybody to take it seriously, but now that I hear her talk about this, I do wonder, why does the government have anything at all to say about who you can marry?
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. Taking Marriage Private (by Stephanie Coontz, professor of history at Evergreen State College and author of Marriage, a History: How Love Conquered Marriage.)

Well, that is some interesting stuff. At first, you just ... lived with somebody, that was enough, move in and you're hitched.

And then, you can see that a government would want to regulate procreation and inheritance, this was a way for the guys in power to assert their superiority, that's an old game. But it's not clear why the people would put up with that.
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.

It's like everything; you get swept into the system, and the system takes over. Marriage has nothing to do with the bureaucracy that manages your insurance policies, your pension, your doctor bills, your mortgage -- a marriage license was a handy way for those institutions to keep track of you and manage your stuff.

So because the bureaucracy needed records, the state needed to be responsible for getting you registered, and if you weren't, you couldn't get your benefits. And then it's just too easy for the state to attach strings to it. You needed a blood test. You had to be a certain age, single, straight. You can't marry without a license because the bureaucracy owns your life, and you can't get a license without meeting some criteria established by somebody with a political agenda.

My thought was that marriage should be registered by religious organizations. You could have the Church of Atheism, the Church of Gay, whatever, if a church would sign your papers you would be married. Of course, you immediately see the problem: could you accept someone else's idea of marriage? What would you do when the polygamists came out of hiding? How about when the ten-year-old down the street is given away in an arranged marriage, as is done in many lands?

That freedom business is a tough one, isn't it? It's fine as long as everybody does the same thing, doesn't always hold up too well when it's put to the test. For some people, the solution to that dilemma is to force everybody to do the same thing. Others see that it's tough, but figure it's worth the price.

5 Comments:

Blogger Tish said...

In wasn't quite as simple as people just moving in together and so they were married: The local community had to consider them married. Stephanie Coontz's work is a bit more detailed then this synopsis. Nancy Cott's Public Vows is also very clear about how these consensual marriages worked in early American colonial and republican society. Not only did the community validate these consensual relationships, it frequently validated voluntary separations, as well. When Andrew Jackson married Rachel Robards in Natchez (under Spanish authority)they both believed that her first husband has already gotten a divorce, a process that involved getting the state legislature to pass a law abolishing the marriage. It turned out that they were wrong, though based on her relationship with Jackson, her husband did then get the divorce pretty quickly. Jackson's political opponents made much of this "adultery" almost 30 years after the fact, but Nashville society was really not very hard on the two. They knew what she had gone through in her first marriage and didn't really blame her for getting out.

Self-divorce in the early republic seems to have been more common than previously thought. Some of the historians working in this area are Nancy Cott, Lorena Walsh, and Claire Lyons, with whom I studied. People would take out ads in the local papers declaring themselves no longer connected to or responsible for the men and women to whom they had been married. Communities seem to have accepted these self divorces, especially when they knew (and they always did) that the couple was not compatible. More commonly one spouse would simply desert the marriage. Many of the earliest petitions for legal divorce were based on desertion.

Self-marriage was especially common. In Europe the costs associated with licenses and banns seems to have been a barrier to formal marriage among the working class and poor. Early American governments tried to keep fees low, but in many communities, there were no legal or religious authorities to formalize marriages. As the writer points out, the state courts recognized marital responsibilities when a couple had cohabited, even if they had not had a licensed marriage.

The writer above stresses the matter of choice, which is at the heart of both self-marriage and self-divorce. The courts had another matter in mind as well, and that was illegitimate children.

In the first centuries of Christian Europe, legitimizing children was one of the primary goals of marriage. Marriages protected property and one of the ways it did so was by defining which children had property rights. When the Church and then the civil law began to require that marriages have their imprimatur, legal and ecclesiastical authorities admitted that strict interpretation of the new rules would create bastards of much of the population. The same in America: an Anglican minister in Montgomery County Maryland said that, "if no marriage should be deemed valid that had not been registered in the Parish Book, it would I am persuaded Bastardize nine tenths of the people in the country." Eventually Virginia bucked ancient tradition by passing a law that legitimized children born before their parents' marriage, upon the parents entering into a legal marriage. Other states followed suit.

The legal lines between married and unmarried are more blurred now than they ever have been, at least in our nation's history. We've gone from a time when people who acted married were considered married and their marriages confirmed by the courts to a time when people are not married, no matter how conventionally they conduct their joined lives, unless they can prove to have gone through the legal requirements of the state in which they were married. In some cases, couples are still only considered married in the states in which they were married.

The focus of the protective nature of marriage has changed from property to children. That is one of the strongest reasons why same sex-couples (many of whom have already proved that they know how to do life-long committed relationships) should have the same legal recognition for their marriages that opposite sex couples now enjoy. The strongest argument for same-sex marriage is still, in my opinion, that basic argument of choice. The Supreme Court ruled in 1877 that marriage "is everywhere regarded as a civil contract" based on consent, and that state laws regarding marriage were "directory, not mandatory" because "marriage is a thing of common right."

November 27, 2007 9:50 AM  
Anonymous Anonymous said...

Anyone can get married to anyone else now. The whole issue is whether it will be recognized by the government. If two gays find a church that will marry them, that's not illegal.

What gays are seeking is governmental recognition, so it's a little silly for a gay advocate to then be saying "what business is it of government who marries?" Gays want the regulation to favor them, much like they want governments to require citizens to let people decide for themselves what gender they are.

November 27, 2007 11:17 AM  
Blogger Randi Schimnosky said...

Anonymous, if the governement doesn't recognize it you're not married. Most states have laws preventing same sex couples from getting married.

Gays are not asking that the regulation favour them, they are asking to have the same recognition that straights have. That's not favouritism, that's equality. Only in your twisted mind is someone getting the same rights you have favouritism.

November 27, 2007 5:30 PM  
Anonymous David Weintraub said...

What an odd, convoluted way you have of phrasing things, anon. Let's unpack your construction "they want governments to require citizens to let people decide for themselves what gender they are." Obviously, "they" in this fragment refers to people with whom you disagree; but who are "citizens" as opposed to "people" supposed to refer to? Are they different in some way?

Wouldn't this fragment be clearer if it simply said "they want government to recognize the right of [citizens, people] to live according to their gender"? Or, did you have some intent other than clarity?

November 27, 2007 5:43 PM  
Blogger Jazzie Casas said...

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February 24, 2011 2:12 AM  

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