“The very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.”
On Monday, the Supreme Court brought the legal battle over marriage equality just inches from a conclusion. By refusing to review several court decisions holding that the Constitution requires gay couples to be treated the same way as straight ones, the justices effectively increased the number of states where same sex marriage is legal to 30. This is the way marriage discrimination ends, not with a bang, but a whimper.
Yet, while total victory for the forces of marriage equality now seems inevitable, supporters of discrimination are unlikely to give up without one final fight. Nor should there be any doubt how opponents of equality plan to defend what remains of marriage discrimination. “[T]he ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a ‘same-sex marriage,’” according to an opinion by Judge Paul Niemeyer, one of just three federal judges who concluded that marriage discrimination is permissible under the Constitution. When gay people marry, Niemeyer’s argument presumes, they form a fundamentally different bond than the one that exists in a straight couple, and thus it is permissible for the law to treat same-sex couples differently because their marriages are entirely unlike opposite-sex couples’ marriages.
Extending full marriage rights to same-sex couples would not fulfill the Constitution’s promise of equality, it would “redefine marriage,” in the eyes of those judges still willing to defend discrimination. And this redefinition is not something that falls within the purview of the judiciary. As Justice Samuel Alito argued in 2013, supporters of equality “implicitly ask us to endorse” a more expansive definition of marriage and “to reject the traditional view.”
Yet even if the Supreme Court concedes this point, that providing the full blessings of liberty to gay men and lesbians would somehow change the way we define the word “marriage,” this objection makes little sense. The reality is that the way we define the concept of “marriage” bears little resemblance to the way it was defined just a few decades ago, and that the courts have played an active role in redefining the institution for much of American history. Not so long ago, for example, marriage was defined as a fundamentally sexist institution where the wife was both financially and sexually subservient to her husband. Now, however, most Americans recognize these gender roles as outdated and immoral. The definition of marriage changed, and America is a stronger nation because of it.
The Husband’s Property
The Blackstone quote that precedes this article captures the way marriage was defined by the English colonists who formed the United States — or, at least, it captures the way marriage was defined if you were a woman. It also captures how their descendants defined marriage for much of American history.
Early American law was shaped in large part by the English common law, a set of rules and precedents derived by English judges over many centuries. Sir William Blackstone played a central role in summarizing and explaining the common law when his Commentaries on the Laws of England was published in the 1770s. These Commentaries remain influential, and are frequently cited by American courts — including the Supreme Court — to this day. Both Justice Samuel Alito’s majority opinion in the recent Hobby Lobby decision and Justice Ruth Bader Ginsburg’s dissent cites Blackstone.
As Blackstone’s description of the role of a woman in marriage suggests, the common law treated a wife as financially subservient to her husband. Although single women enjoyed the same property rights as men, a married woman lost her ability to make financial decisions the moment she said “I do.” Real estate owned by a woman was managed and controlled by her husband, and a husband actually assumed legal ownership of his wife’s remaining property.
For more than half a century after an all male delegation met in Philadelphia to draft the Constitution in 1787, women remained little more than an appendage to their husband’s financial identity. In 1839, Mississippi enacted the nation’s first Married Women’s Property Act, which gave married women the right to own property. Yet, as Angela Boswell, a history professor at Henderson State University in Arkansas, explains, Mississippi’s law was hardly a feminist act. The primary reason for this law was “the unstable nineteenth century economy, particularly the panic and depression of 1837.” The Mississippi law “provided ways to shelter family fortunes by allowing some property to be held in the wives’ names, free from the claims of creditors.”
Significantly, the Mississippi law permitted the wife to own property, but it did not permit her to control it. Though “a married woman legally owned the property and could refuse its sale,” Professor Boswell explains, “her husband controlled the property in all other aspects.”
Nine years after Mississippi enacted its law, New York passed its own Married Women’s Property Act, which became a model for similar laws in several other states. Under New York’s law, “[t]he real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.”
In 1855, according to Queens College Professor Joyce Warren, Massachusetts enacted a law giving married women “the right to own real or personal property; sell, contract or sue and be sued; make a will; and have full control over her earnings.” New York enacted a similar law five years later. Other states, however, did not follow New York and Massachusetts’ lead until the 1870s or later. In 1887, fully one third of states still did not permit women to control their own earnings.
Even as states moved in the direction of more equal treatment for men and women, the husband frequently remained the dominant partner in a marriage. An 1879 Texas law, for example, provided that “[a]ll property acquired by either husband or wife during the marriage except that which is acquired by gift, devise or descent shall be deemed the common property of the husband and wife,” yet it added that such property “may be disposed of by the husband only” for the duration of the marriage.
So early Americans defined marriage as an institution that robbed women of their entire economic identity, and many states continued to do so more than a century after the Constitution was ratified. Indeed, the vestiges of the common law definition of marriage remained well into the twentieth century.
Enter Ruth Bader Ginsburg
Eliminating these vestiges, and the gender stereotypes that come with them, was the central fight of future Justice Ruth Bader Ginsburg’s career as a litigator. And, just like the gay rights attorneys who are fighting the final stages of the battle for marriage equality, Ginsburg recognized that the key to tearing down antiquated gender roles was the Constitution’s promise that no person shall be denied “the equal protection of the laws.”
Before her elevation to the federal bench, Ginsburg served as director of the ACLU’s Women’s Rights Project, where she litigated a series of cases that eventually convinced the Supreme Court to hold that all laws that discriminate on the basis of gender should be viewed with skepticism. As Ginsburg recently explained to the New Republic‘s Jeffrey Rosen, “[e]very one of these cases involved a law based on the premise that men earned the family’s bread and women tend to the home and children.”
The 1971 case Reed v. Reed, for example, involved a conflict between a husband and wife who separated prior to the death of their son. Both parents wanted to administer their son’s estate, but the law in Idaho, where they both lived, provided that when such a conflict arises between two people with equal claims to administer an estate, “males must be preferred to females.” Ginsburg, along with her co-counsel, successfully challenged this law, leading to the very first Supreme Court decision holding that gender discrimination violates the Constitution. Contrary to the assumptions of the common law, the Court held that a person’s sex bears no “rational relationship” to their ability to wind down the affairs of someone who has died.
Though Reed involved a law that discriminated against women, Ginsburg understood that gender roles can confine men just as surely as they punish women. As she explained to Rosen,
Wiesenfeld is probably the best illustration. The plaintiff, Stephen Wiesenfeld, was a man whose wife died in childbirth. He wanted to care personally for his infant, so he sought the child-in-care Social Security benefits that would enable him to do so. But those benefits were available only for widows, not widowers. Wiesenfeld’s wage-earning wife paid the same Social Security taxes that a man paid. But they netted less protection for her family. It made no sense from the point of view of the baby. The male spouse was disadvantaged as a parent. We were trying to get rid of all laws modeled on that stereotypical view of the world, that men earn the bread and women take care of the home and children.
The culmination of this vision was Justice Ginsburg’s own opinion in United States v. Virginia, where the Court held that “[p]arties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification‘ for that action.” Under that standard, little, if any, of the common law’s vision of dominant men and subservient women can survive. The definition of marriage Ginsburg helped build bears little resemblance to the definition of marriage at the time of the framing.
No Means No, Even When You’ve Said “I Do”
For most of American history, the law did not simply treat woman as financially subservient to their husbands, it treated them as sexually subservient as well. A husband “cannot be guilty of a rape committed by himself upon his lawful wife,” according to 1736 treatise on the common law by Sir Matthew Hale. “[B]y their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” Hale wrote, and this consent was something “she cannot retract.”
The notion that a woman has “given herself up” to her husband’s sexual demands influenced America’s definition of marriage long after many states started treating wives as their husband’s financial equal. Under the original 1962 draft of the Model Penal Code, a proposed set of laws drafted by legal scholars seeking to encourage the states to adopt consistent codes of criminal law, the crime of rape could only occur when a “male . . . has sexual intercourse with a female not his wife.” The first successful prosecution in the United States of a man who raped his wife did not occur until the late 1970s.
According to the Rape, Abuse & Incest National Network (RAINN), many states adopted bans on spousal rape in the 1970s and 1970s, and marital rape was illegal in all 50 states by 1993. In many states, however, the courts played a central role in recognizing the wife’s right to refuse sex with her husband. In an influential 1984 opinion, for example, New York’s highest court held that there is “no rational basis for distinguishing between marital rape and nonmarital rape.”
“Rape,” Judge Sol Wachtler explained, “is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm.” The notion that the law could “imply consent to such an act is irrational and absurd,” Wachtler added, and thus “a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman.”
Once again, in other words, the courts helped reshape the definition of marriage. We no longer define marriage as a relationship where the wife “hath given herself up in this kind unto her husband.” Judge Wachtler’s vision of marriage has triumphed over Sir Matthew Hale’s.
The Nanny State On Steroids
There is one other important way that America’s definition of marriage has evolved. Though they largely go unenforced — and it would be unconstitutional for a state to attempt to enforce them — many states still have “fornication” laws on their books banning sex of all kinds between unmarried couples. Minnesota’s fornication law, for example, provides that “[w]hen any man and single woman have sexual intercourse with each other, each is guilty of fornication, which is a misdemeanor.” Utah’s law provides that “[a]ny unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of fornication.” Virginia law provides that “[a]ny person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.” And Massachusetts’ law simply states that “[w]hoever commits fornication shall be punished by imprisonment for not more than three months or by a fine of not more than thirty dollars.”
Fornication laws, in other words, transformed consensual, heterosexual sex into a highly regulated activity that two adults could only engage in if they obtained a license from the state permitting them to do so. Marriage, of course, was the legal process those two adults had to complete in order to get the state’s permission to allow them to engage in sexual intercourse.
Needless to say, the idea that marriage should be defined as a licensure process that the state uses to dole out permission to people who want to have sex with one another would strike most Americans as absurd. Yet this is how marriage law functioned during a previous age when fornication laws were actually enforced.
Fortunately for the overwhelming majority of Americans who engage in premarital sex, the courts also largely agree that using marriage as a mechanism to regulate who is having sex with each other is absurd. As the Virginia Supreme Court explained in Martin v. Ziherl, “the Virginia statute criminalizing intercourse between unmarried persons” abridges “a personal relationship that is within the liberty interest of persons to choose.”
An Easy Final Step To Equality
Dissenting in United States v. Windsor, Justice Alito claims that the battle for marriage equality is really a battle between two incompatible views of marriage. The first is a “traditional” view which sees marriage as an “exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.” The second is a “consent-based” view “that primarily defines marriage as the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons.” (Most people describe this “mutual commitment — marked by strong emotional attachment and sexual attraction” in much simpler terms. We call it “love.”)
Alito’s suggestion that marriages based on love and marriages based on building a stable home for children are somehow entirely distinct concepts is itself a very unusual viewpoint. Yet he is correct that the story of American marriage law has often been the story of one vision of marriage coming to eclipse another.
Implicit in the common law definition of marriage, with its vision of the husband as both financially and sexually superior to the wife, is a notion that each gender has a proper role, and that a marriage requires a dominant partner and a subservient partner. Implicit in the notion of a fornication law is the idea that sex between consenting adults is the proper subject of state regulation, and that states have a legitimate interest in making sure that sex only takes place under carefully regulated circumstances.
If you accept the idea that marriage requires a dominant man and a submissive woman, then the case against marriage equality is obvious. How can both gender roles be filled when you do not even have both genders? Likewise, if you accept that the government gets to decide how people use their genitals, then the state may legitimately decide not to solemnize a sexual relationship between two men or two women.
But American law rejects both of these propositions, and thanks to the work of people like Ruth Bader Ginsburg, the Supreme Court now recognizes that our Constitution rejects both of these propositions as well. The law knows no gender roles. And, as the Court held in Lawrence v. Texas, “there is a realm of personal liberty which the government may not enter” — and that realm includes the bedroom.
Justice Alito, in other words, is not losing the battle to stop marriage equality, he’s already lost it. The vision of marriage that permits discrimination was scrapped with the common law.