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The Future of Marriage

 
Changing demographics, economics, and laws alter the meaning of matrimony in America.

When I came to Harvard in 1970, the model for many young people was the wedding in Love Story," recalls Peter J. Gomes, who has performed marriages in Harvard’s Memorial Church for 34 years. Reflecting on the schmaltzy melodrama about a rich Crimson preppie who abandons his family fortune to marry a working-class Cliffie, only to lose her to an early death, the University’s Plummer professor of Christian morals and Pusey minister dubs the film’s secular, do-it-yourself vows "religion lite," adding that "the ceremony was the archetype of the time."

By the early 1980s, however, Love Story’s run as a matrimonial exemplar had ended, and the film version had become a cult initiation event during freshman orientation. Every fall, in sixties dress, the Crimson Key leads the frosh-only crowd in a sarcastic interactive commentary during a screening. ("I’ve never seen a Harvard bed that big!" a Keyster calls out during a Ryan O’Neal­Ali MacGraw love scene, to which another retorts, "I’ve never seen a Harvard bed that full.") Briefly a popular standard, Love Story quickly descended to parody.

Peter J. Gomes
Photograph by Jim Harrison

At first blush, marriage in America seems to have followed a similar trajectory. Once a required rite of passage, seen as a genuine embodiment of shared values, it now serves as a game-show prize on Who Wants to Marry a Multimillionaire or a booby prize on My Big Fat Obnoxious Fiancé — even though wedding ceremonies have created a "bridal-industrial complex," as Lee professor of economics Claudia Goldin calls the nearly $100-billion-a-year U.S. industry that outpaces even the movie business ($45 billion a year, including sales and rentals). Egged on by celebrity magazines and wedding planners, affianced couples undertake increasingly baroque spectacles that take years to plan and cost on average $20,000 to produce.

When Love Story first appeared, the United States was still deeply immersed in a "marriage culture" that encouraged and supported getting (and staying) married. But within a few years, the women’s movement, the sexual revolution, the pill, and various economic shifts had irrevocably transformed that marriage-centric society. "I won’t say it’s an endangered species, but it’s surrounded by great difficulties that were not readily apparent 35 or 40 years ago," says Gomes. "Divorce is a very serious specter — over 50 percent of our marriages end in divorce. The culture doesn’t encourage permanence or fidelity. Dual careers, while there’s nothing inherently wrong with them, tend to force people to make difficult decisions about [the] evolving roles [of] the two partners in the marriage. So the assumed stabilities of 40 or 50 years ago — the Ozzie and Harriet world that most people refer to — if they ever existed, certainly don’t exist now."

Sidebar:

Demographic Subplots

Moreover, these changes are not unique to the United States. "There are several different things going on in advanced societies, all of which have tended to make marriage less central and less dominant," says professor of sociology Martin Whyte, author of Dating, Mating, and Marriage. "People marrying later, or perhaps not at all, in larger numbers. Relatively high rates of divorce. A higher percentage of children born outside of wedlock. More people cohabiting without getting married."

Social conservatives blame divorce, cohabitation, "illegitimacy," and the demise of the traditional family for society’s ills, from poverty, crime, and juvenile delinquency to moral decay and the destruction of the American way of life. In 1996, the Republican-controlled Congress enacted, and Democratic president Bill Clinton signed, two laws legislating this belief. The "Personal Responsibility and Work Opportunity Reconciliation Act" ended "welfare as we know it" by requiring jobs and promoting marriages of welfare recipients. The Defense of Marriage Act (DOMA), in reaction to a 1993 Hawaii Supreme Court ruling that supported the right of same-sex couples to wed, defined marriage exclusively as a "one man, one woman" transaction, thus barring members of state-sanctioned same-sex unions from federal tax or Social Security benefits. (Hawaii later amended its constitution to outlaw same-sex marriage.) More controversially, DOMA preemptively removed any obligation for a state to recognize any future same-sex marriages of another state — even though the U.S. Constitution requires states to honor precisely such acts performed in other states. In a more recent crosscurrent, once Vermont legalized civil unions in 2000, and Massachusetts became the first state to make same-sex marriage lawful this past May, preexisting efforts to enact a constitutional amendment restricting marriage to "one man, one woman" intensified.

Nancy Cott
Photograph by Jim Harrison

Unsurprisingly, marriage itself has therefore come in for broad reassessment, observes Nancy Cott, Trumbull professor of American history and author of Public Vows: A History of Marriage and the Nation: "It’s ironic and interesting that same-sex marriage advocates and conservatives of the ‘family-values’ school…have both contributed to a re-evaluation of marriage in the last 20 to 25 years." In the 1970s, marriage was at its lowest ebb in public approbation, she adds, "but by the late ’90s there’s a resurgence of appreciation of marriage, seen in the leveling off of the divorce rate." Although the claims for the value of marriage by conservatives and gay-rights proponents "were from two ends of the spectrum, they came together — at least at the rhetorical level — for what marriage…accomplishes and how crucial it is as a social institution."

This is an unusual moment in the life story — the love story, if you will — of matrimony. As same-sex couples line up for marriage licenses at courthouses across Massachusetts, opponents predict the death of marriage itself. One side sees tragedy in the making, the other wants to rewrite the script entirely.

 

 

Choose me

The freedom to choose and be chosen are at the heart of American life. When Jenny accepts Oliver’s offhand proposal on the Weeks Bridge, she’s enacting a tradition of marriage based on mutual consent. And when Oliver rejects his father’s demands to change his mind, he plays the role of the democratic swain, choosing love over money. "Romantic love has been around for a long time, and it figures very dramatically in America," says Cott. "We don’t have a tradition at all of aristocratic marriage in which families did the arranging, which was all about whose line marries who else’s line and consolidates their property."

The founders, in fact, envisioned their fledgling republic as the mirror image of marriage, Cott explains: "The notion of consent to government is a founding principle, and the notion of union based on that consent is equally important. For the founders, marriage was a useful metaphor for that consent and [that] union — as the bonds that would make the entity thus formed solid and lasting." With choice and consent as shaping notions in American polity and marriage, the story of actual marriage in this country not surprisingly involves an expansion of the other core American concept: equality.

Historic change in American matrimony is especially pronounced in three areas, says Cott: the equalizing of the "respective rights and duties of wives and husbands," the dissolution of marital prohibitions based on race, and the evolution from state-defined grounds for divorce to couple-defined "no fault" divorce. The most recent area of contention, of course, is whether the state should sanction marital consent between same-sex couples. Although such a prospect is unthinkable to some, earlier forms of legal marriage are equally unimaginable now.

The common law doctrine of coverture subsumed a wife’s legal identity into her husband’s, which meant "a woman’s property as well as her earning power became the property of her husband when she married," notes Cott. But by the 1830s, "asymmetrical relations in American law and practice — master/slave, master/servant, parent/child — were all being highly questioned, and the asymmetry of husband/wife was deeply challenged by women." Yet family finances, not women’s independence, motivated legislative change, she explains. In a nineteenth-century credit economy, "enabling a wife to own her own property was a way to insulate family property from creditors": if the husband’s wheat failed, a home in the wife’s name was safe. For the good of the family — and the public purse — property-rights reform allowed a wife "to be her own person again."

As equalities expanded, patterns of marital consent evolved. In the twentieth century, for instance, marriage timing is one marker of such change. As Peter Gomes reflects, the reasons why people marry — love, companionship, stability, children — have largely remained the same. What has changed is when. "When I first began at the University in 1970, people were marrying very young, right out of college," he remembers. "It used to be the Harvard fashion to commence on Thursday and marry on the weekend" — much as Oliver and Jenny do. But by the late ’70s, "people started marrying at a considerably later age [see "Demographic Subplots," page 42], largely because of the women, who were going on to graduate school or to work or delaying commitments," Gomes explains. They would come back five, 10, even 20 years after they’d graduated to marry — often "just before the woman’s clock stopped ticking," he adds.

Martin Whyte
Photograph by Jim Harrison

Sociologists agree that women have driven the shift from the marriage-centric mores of the 1950s and ’60s. "Employment of women outside the home and other changes made attachment to a male through marriage at as early a stage as possible not only unnecessary, but then, as the divorce rate went up, an increasingly dubious proposition," says Martin Whyte. "There are also factors like increased education and the somewhat independent changes in the whole sexual culture of our society, such as widespread acceptance of premarital sex and greater tolerance of unwed motherhood."

Sex, school, and marriage form entangled choices that caught the attention of Claudia Goldin, author of Understanding the Gender Gap: An Economic History of American Women. "If you ask, ‘At what age did the median woman who is a college graduate marry in the U.S.?’ you find the following absolutely astounding graph," she says. For women graduates born from 1930 to 1950, the median age of first marriage "wiggles around age 23," she points out, "and then it climbs precipitously to 25.5 for those born in 1957" — a spectacular increase in any demographer’s view — and continues to rise. The cause? "We’ve pinned this one down to ‘the pill’ very definitively," says Goldin, citing "The Power of the Pill: Oral Contraceptives and Women’s Career and Marriage Decisions," an article in the Journal of Political Economy that she wrote with Allison professor of economics Lawrence Katz.

Other forms of birth control "were not as highly reliable," explains Goldin. "Something taken in advance, that doesn’t have to be carried around, that doesn’t have to be fished out, that doesn’t have to be negotiated, cuts the probability of pregnancy by a tremendous amount. The diffusion of the pill was enormously powerful." Within five years of FDA approval of the pill in 1960, married women were using the new miracle drug in record numbers. "But single women couldn’t easily get the pill" until 1971, when the Twenty-sixth Amendment lowered the voting age to 18 and many states followed suit by lowering the "age of majority." In 1969 an 18-year-old woman could legally obtain the pill in only nine states, but by 1971 she could do so in 30, and by 1974, only three states still prevented her from getting the pill. "When women could delay marriage due to effective contraception, then they could go to graduate school and to professional school — and let’s face it, they didn’t have to worry about not partaking in sex," Goldin adds.

The pill also cut the costs of pursuing a career by altering the "marriage market," Goldin argues: "Think about the world of 1962. Everyone is matching up…in college, and you don’t want to not do it because you’re going to get the ‘dregs.’…That’s the way it was for some very smart women, which made it frustrating." As the pill helped delay the age of marriage across the entire college-graduate population, however, women could reenter the marriage market after attaining higher degrees without finding a "depleted cohort" of likely spouses.

Understanding recent changes in the marriage market also requires looking behind the scrim of the idyllic 1950s and ’60s. "The patterns of…family life…which many Americans now look back upon with nostalgia — the stay-at-home mom and the baby boom, people marrying at very high percentages and very early — were in fact unprecedented in American history," Whyte points out. In Plymouth Colony marriage ages were around 25 for men and 22 for women, and by 1890 national median ages had changed only to 26 and 22. In the early twentieth century marrying ages gradually dropped to the 1940 median of 24.3 (men) and 21.5 (women). And "by 1956, the median age for first marriage for females had dropped to 20, which means half of all brides marrying for the first time were teenagers," Whyte says, adding that the median age for men was 22.5. "That was not traditional family life. That was produced by unusual post-World War II baby-boom conditions."

Those conditions and their effects reflect the first demographic revolution of the twentieth century: earlier centuries’ high-fertility, high-mortality families gave way to the smaller, long-lived nuclear families of the mid-twentieth century. "There was much more of a cultural consensus back in the 1950s, when almost everyone married, but it was a temporary and newly achieved thing," notes Whyte. "No sooner was this earlier change fully consolidated and spread all over the place, than what some now call a second demographic revolution got started" — kicked off, he notes, in large part by increases in paid employment for women, which had already begun in the 1950s.

Nevertheless, those mid-century images still resonate, in part because America is still "very marriage prone," Whyte points out. "Americans seem to be more hesitant about getting married, and they’re marrying later, but Americans have married at younger ages, and we still marry at younger ages, than in many European societies and in Japan." (Western societies show a general pattern of later marriage and more nonmarriage than most Asian and African societies, he notes. In both traditional and modern Chinese society, only a small percentage of men are "bare sticks," as single men are known, and marriage for women is virtually universal; but in European societies "bachelors" and "spinsters" have long made up 8 to 12 percent of the population or more. Ireland had the highest rates of nonmarriage in earlier times, when a quarter to a third of the Irish never married.) "There’s very little evidence of rejection of marriage as an institution," says Whyte, citing polls reporting that 95 percent of Americans say they want to marry and think they will. (Among those who say they don’t want to marry are some gays and lesbians "who reject marriage as a bourgeois, conservative, patriarchal institution," he notes.)

But if a pollster asks, "Can a woman or can a man have a full and complete life without ever getting married?" the answer is also yes, Whyte says. In one study, 70 to 75 percent of those surveyed agreed with this view. "In the 1960s, very few people would say yes, and now a much higher percentage of people will. People still want to get married, but the urgency or the sense that it’s necessary — or that you can’t have a full life without getting married — has clearly changed."

 

 

The child factor

While marriage has become less essential in American culture, it has also become less centered around children. As reproductive freedom expanded, so has the option of when to have children — or whether to have them at all. "Marriage, as it evolved into personal affectional choices, becomes in some sense increasingly selfish, and children force us not to be selfish," observes Peter Gomes. "You have to bring them up. You’re obliged to deal with them — and it’s an inconvenience that’s going to last a lifetime. This places a dent in the intimacy between the couple. One of the reasons that childbearing has been postponed in many marriages — far beyond what used to be thought of as the normal childbearing time — was that people weren’t ready to introduce such fundamental change into their lives."

Gomes doesn’t believe that procreation is the only reason to marry, but he does ask young couples directly about children during premarital consultations. "Sometimes it’s an embarrassing conversation for them," he says. "When they ask what I think, I say, ‘I think you should have as many and as early as possible! Your marriage should be shaped together with, not in spite of, your children.’" Yet he’s also dubious of "having it all" — the family, the children, the job, the intimacy, and the independence: "I think it’s still pretty risky."

As this second, child-optional demographic revolution unfolds, "there’s less consensus on what the proper ways of organizing your private life are," Martin Whyte observes. "There’s more acceptance and increasing tolerance of diverse lifestyles." But the conservative critics say that marriage itself is endangered — in general, and in particular by same-sex marriage.

Elizabeth Bartholet
Photograph by Jim Harrison

Others see same-sex marriage as the inevitable, evolutionary outcome of deeply held American beliefs in relational and reproductive freedom, as well as ensuing developments in the laws concerning parenting and the status of parental rights. "Many people treat the same-sex marriage decision [in Massachusetts] as just incredibly controversial, and in my view, it’s better seen as inevitable," says Wasserstein public interest professor of law Elizabeth Bartholet, the author of Family Bonds: Adoption, Infertility, and the New World of Child Production. Because "our society believes so powerfully in reproductive freedom, we have allowed, and are not going to stop allowing, gays to parent — to have children, both naturally and through reproductive technology, and to hold onto those children. We also believe in relational freedom. We have allowed and are not going to stop allowing gays to live together."

European countries, including Sweden and France among others, have generally outpaced the United States in legitimizing gay unions, Bartholet points out, but "most of those countries did not recognize the right of such adults to have children, and did not allow them access to reproductive technology or adoption. So the parenting phenomenon is seen as hugely controversial in other countries. We’ve already done gay parenting. Even in Massachusetts, most of the conservatives who condemn the same-sex marriage decision are arguing that we ought to do civil unions in a form that would facilitate giving gays official parental status, but just not allow…marriage.

"Having gone as far as we have in allowing gay parenting, it’s hardly legitimate for society to say, ‘Well, you can’t marry.’ Not only is it just punishing the gay parents," Bartholet continues, "It’s also punishing the children."

 

 

By the authority vested in me…

In Public Vows, Nancy Cott describes how American settlers in the New World often practiced informal "self-marriage" out of necessity. In such common-law marriages a couple simply lived together, calling themselves husband and wife without ceremony, chaplain, or license — all of which are visible in Love Story’s do-it-yourself wedding. While Jenny’s father, a Roman Catholic, tries to make sense of this "religion-lite" version of the holy sacrament, the chaplain stands by at Phillips Brooks House as Jenny recites "When our two souls stand up erect and strong," an Elizabeth Barrett Browning sonnet, to which Oliver replies with a passage from Walt Whitman’s "Song of the Open Road." After their unaided exchange of traditional vows, the chaplain finally steps in to seal the deal.

"By the authority vested in me by the Commonwealth of Massachusetts, I pronounce you…" is a phrase still used in many weddings across the state, though it’s no longer required. Nevertheless, Peter Gomes points out, "I am allowed to marry people not because I am a minister, but because I am an officer of the state. It is the state that regulates marriage and permits the clergy to do it. The fundamental definition of marriage in this country is as a civil institution, and that point can’t be made too often." As professor of law Janet Halley frequently reminds her family-law students, in the words of the Supreme Court landmark marriage case of 1888, Maynard v. Hill, "There are, in effect, three parties to every marriage: the man, the woman, and the state."

With the lifting of prohibitions against premarital or extramarital sex and cohabitation, Cott notes, "the question of whether one married or not came to seem more and more…like just a decision between the two of us — ‘Do we live together or do we get married?’" Yet the state still exerts firm control, particularly in divorce and custody settlements, and still sets the criteria for who can and cannot legally marry.

As Halley points out, "The right-to-marry claim is a weird kind of right. We typically think of rights in liberalism as rights to be free from the state, but this is an argument for the right to enter into a regulated relationship with the state." Halley, whose essay "Recognition, Rights, Regulation, Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate" appears in Legal Recognition of Same-Sex Partnerships: A Study of National, European, and International Law, acknowledges the "tremendous asset transfers to marriages in our system" that serve as "subsidies" to encourage and support marriage. But she considers the burdens of marriage an "underarticulated category" in gay-rights rhetoric: "It was very rarely said, ‘I want to have the powers of marriage over my most beloved person in the world. I want to be able to divorce her. I want to be able to punish him for marital infidelity by getting a more favorable property division.’ All the rights and benefits of marriage are benefits only because they extract some social good from someone, and many of them extract that social good from the spouse."

In the past, the state used the burden of divorce in part to define the marital roles of husband and wife, Cott argues: "If the state says a ground for divorce is extreme cruelty, it says that the role of spouses is to be other than extremely cruel, to be kind. It’s a negative that reinforces what the positive criteria for marriage are. A person seeking the divorce would have to show the court that the other person did not adhere to the criteria set by the state for the marital role." But in the late twentieth century, marriage moved "toward the spouses themselves defining what the appropriate marital role or performance is" — in particular through no-fault divorce.

Out of this shifting legal context have emerged new assumptions about marriage. Elizabeth Bartholet characterizes this move from the state having "enormous control over marriage" to people writing "the terms of their own marriage" as follows: "The old idea was that there’s this thing called marriage and it’s a status that the state rules define: once you’re in it, it’s forever; there’s no adultery; it’s only in this context you can have children; women stay at home; men work," and so on. In that context, courts struck down premarital or prenuptial contracts as inconsistent with "no divorce" rules, she says. But today, in a divorce-at-will context, "People are allowed to have premarital contracts and to write the terms of their own divorces."

More broadly, the trend of recognizing "de facto" relationships means that "if you look like a family, feel, smell like a family — you cook meals together, share bank accounts — then you are a family for the purposes of the law," as Bartholet puts it. In the late-twentieth and early-twenty-first centuries, the tendency to protect families has expanded gay rights and, inevitably in Bartholet’s view, the notion of marriage: "Since gays and lesbians have not been allowed to marry formally, but have been allowed to live together and bring up children and are creating that kind of de facto family in huge numbers, the courts have felt a fair amount of pressure to recognize the families as legitimate."

Bartholet describes two key "legitimation moves" by the courts. One is second-parent adoption, whereby the gay parent who is not the biological or primary adoptive parent is allowed to adopt. "In allowing the gay de facto co-parent to adopt," she explains, "the courts are allowing the couple to be legally as a couple the parents of the child — when many people think the ban on marriage has at its heart not letting gays parent. So here we are having the courts say, no, they can parent officially as a couple, even though they’re not allowed to marry. The second key legitimation move has been to say that gay de facto parents, even if they don’t co-adopt, can sue for custody or visitation if the couple splits up, just as if they were marital partners."

As courts have ruled in favor of gay rights, Bartholet says, the law has simultaneously drawn into the de facto family circle unmarried heterosexual couples, giving them more and more of the rights and privileges that were traditionally reserved for those formally married. This move — reflecting legal respect for individual autonomy — has led to unmarried fathers acquiring parental rights. Overall, legal rules about parenting have pushed at the boundaries of marriage, as childbearing and -rearing have escaped from the exclusive bounds of matrimony. "Second-parent adoption and de facto-parent doctrine have been developed in recognition of the dilemma courts are facing — and our society is facing — when on the one hand we say ‘no marriage’ to gay couples, but on the other hand we say it’s perfectly okay for you to use reproductive technology, get pregnant and produce kids, and keep them to raise and live with whomever you want," says Bartholet.

Same-sex marriage advocates also employ what Janet Halley calls the recognition argument: "I’m already in a same-sex marriage, we’re already marriage-like, we’re already in a marriage, but we’re denied recognition. That’s a deprivation of benefits, that’s a stigma, and that’s a dignitary harm. All the state has to do is just recognize something that already exists." But that suppresses another dimension, she argues, which is that gay couples have increasingly modeled their relationships on marriage: "It’s not that they already exist. There’s been a lot of change in the gay community over the last 15 or 20 years — [an] increasing demographic flow of same-sex relationships toward the marital form."

As a legal realist, Halley would like to change the topic, so that "it’s not about same-sex marriage good or bad, but ‘Are the consequences of same-sex marriage harmful or productive across the full array of the effects of marriage?’" If a lesbian couple have a child and then split up, and the birth mother refuses to let her former partner see the child, "I want to have state power there to require her to keep that child in a relationship with the other woman, so I’m pro-same-sex marriage," she says. But if it’s a case where one member of a gay couple has an affair with somebody else, Halley’s ambivalence emerges. "Where there’s marriage, the person having the affair is now an adulterer," she points out. "There are criminal statutes against it, and almost all the states give very strong preferences to the ‘wronged spouse’ when that spouse sues for divorce…I find that an awful kind of power for one person to have over another, and there I wish it would just be an affair and not adultery. And for that, [the relationship] would need to not be a marriage."

"You go into these places where people are wildly enthusiastic for same-sex marriage, and you describe the marriage laws and how they function, and you’re such a spoiler!" Halley says with a laugh. When discussing marriage with full knowledge of what it means, "You’re really wrecking the good feeling they have about it all."

 

 

Marital erosion versus evolution

Following the script of the 1950s and ’60s, Jenny and Oliver meet in college, fall in love, make love, marry, work their way through his Harvard law degree, move to Manhattan, and make babies — or try to. Jenny is smart, sassy, and strong, but when she reprises her mother’s portrayal of the wife, even ironically ("I’m in the kitchen where I belong!"), she "malfunctions." She not only can’t reproduce, she starts to die. And like the first demographic revolution she represents, she dies young.

Until 30 or 40 years ago, the gender distinctions in marriage generally provided structural support. But when women, participating in larger historical trends toward greater equality, began to tire of their traditional roles and change them, both sides of the relationship were displaced. "There were lots of stressors that made it more difficult for marriage to happen," says Dudley Rose, assistant dean for ministry studies at the Divinity School. "People — particularly women, rightly — didn’t want to be put into situations where they had a set of responsibilities that completely undermined their careers." For social conservatives, these shifts in roles have compromised the very foundation of marriage.

Yet "change is characteristic of marriage. It’s not a static institution," Nancy Cott emphasizes. Between gender tremors and cultural surges, Americans now live among a multiplicity of family patterns, says Cott: "People can cohabit without great social disapproval; they can live in multigenerational families; there are scenes of group living; there are gay unions or civil unions. There’s a greater variety of household forms that are approved and accepted, or at least tolerated, at the same time that there are some very strong voices appreciating conventional, traditional marriage in ways that were not voiced 25 or 30 years ago."

As Martin Whyte points out, marital change and diversity are not unique to the present. "Obviously there are many societies that allow polygyny, the correct term for a male with more than one wife, and even polyandry, where women have extra husbands. Even in the United States we had our own — the U.S. Army was sent into Utah [in 1857] to try and suppress polygyny [among Mormons], and it still exists. In the broader cross-cultural record, there are African tribes that allowed a childless widow to marry ‘wives’ in order to produce heirs." Yet despite a few famous exceptions — the Nayar in nineteenth-century India had impermanent sexual-romantic relationships and matrilineal families where mothers, grandmothers, and maternal uncles raised children, and the Na, an ethnic minority in China, still follow a similar pattern — Whyte says that, where records exist, "virtually every society in every time period has marriage as an institution."

But not monogamy. Missionary, explorer, and anthropological reports about pre-industrial societies have led to calculations that only 20 to 35 percent were monogamous, less than 1 percent polyandrous, and the rest polygynous, notes Whyte: "So monogamy as the dominant and mandated pattern is of more recent vintage historically." As Peter Gomes points out, "All you have to do is read about marriages in the Bible — they certainly don’t confirm or conform to present-day notions. In the first five books of the Old Testament, in Genesis, polygamy and multiple wives was the rule, always in favor of the man. Marriage had as one of its primary functions the perpetuation of a man’s seed. That certainly wouldn’t be a fashionable notion these days."

For many these days, same-sex marriage is the deadliest threat to the future of marriage. Janet Halley paraphrases the current argument this way: Gay-rights advocates say, "We’re already married, we’re just asking for recognition, it won’t change marriage, it will just generate more married people." Opponents of same-sex marriage say, "No! If you get married it’s not recognition of existing marriage, it’s a transformation of the institution of marriage, and it will ruin marriage. It will take away something that’s very important about marriage — something in its norms, something in its centrality, something in its heterosexuality."

If same-sex marriage is widely adopted, Halley sees two possible futures for marriage, though she hesitates to guess which would prevail. In the first scenario, "the fact that same-sex couples can get married will produce pressure on them to get married. If I’m in a relationship with you and we’re of the same sex and now marriage is an option and we don’t do it, we’re really not doing it, we’re choosing not to do it."

In the second scenario, says Halley, "social conservatives actually opt out of civil marriage," arguing that "Marriage has been degraded and civil marriage is spoiled, but we don’t need it. We’ll just have a cohabitation regime where if you live together for a long enough time all the duties and rights that now attach to marriage get imposed on you. We’ll strengthen religious marriage and get state support for it." They could shut down civil marriage completely, Halley adds, "which is something we’ve had since Henry VIII in the Anglo-American tradition."

In one corner we have what Halley calls the "marriage-is-eroding — no-we’re-not-changing-marriage" debate over same-sex matrimony, and in the other, debate over whether marriage in general is waxing or waning. "I don’t think marriage is in decline or going out of style or anything of the sort," says Whyte, "but it is less central. The conservatives are quite right — it is more of an option rather than an absolute necessity." As Dudley Rose puts it, the marriage prerequisite "to cohabit, to have children, to live coupled lives, is no longer in place. People can quite readily not be married." If the social pressures to marry no longer exist, why do couples still marry?

For Gomes, the answer is the same regardless of which corner you’re in: "Gay and lesbian couples are seeking the same things that everyone else is — stability, respectability, endurance, all of those qualities that we associate with marriage. Therefore the move for same-sex marriage is an endorsement of marriage itself. I would argue, quite to the contrary of hysterical critics, that it’s probably the strongest endorsement of the institution of marriage that I can think of in my lifetime." In fact, he adds, "with the exception of the biological production of children, same-sex marriage does everything for marriage that any marriage would do and more, because it’s so unexpected."

Cott adds economic factors to the marital mix. Commentators often view emotional and economic incentives on an historical "seesaw," she explains: in the past these incentives were economic, but now they’re only emotional, "and do we worry that the intimacy incentives are weaker or more fallible or more fleeting than the economic?" In Cott’s opinion, "They usually went together in the past, and they still go together in current times. It’s true that people look more immediately for romantic and intimate bonds with someone now, but that doesn’t mean it didn’t figure in the past." Moreover, "our society is full of economic benefits for people who are married….And, of course, there’s all sorts of cultural reinforcement for falling in love, for being part of a couple, for going two by two in some recognized way."

Today’s wage-and-service economy may have eliminated "the same sort of economic compulsions to marry that existed 200 years ago when people lived in farm families," continues Cott, but there’s still "a strong consensus that living within a household of more than one person is a more economically viable way to live." In addition, "there’s the issue of children…people usually want to raise children with a partner."

People may no longer need to marry for economic security, but they do seem to need economic security to marry. The marriage rate is much higher among people of higher socioeconomic and educational levels, and it’s especially low among those without the same opportunities, Cott points out. "Clearly the ability to envision getting married and keeping a marriage going is premised on a certain level of economic stability, and that’s the sequence of causation that a lot of government welfare reformers seem to ignore. They see the sequence as moving in the opposite direction — if people married, then they’d be economically stable and their children would grow up in a better environment," she says. "But many sociological and economic studies suggest it’s really the opposite, that the problem is first economic, and it requires — especially of lower-class men — a better income, a sense of being able to earn an income, before such a man will see himself as capable of being married."

Without the same economic or social compulsions to marry, we’ve again arrived at a very American place: the primacy of choice. In the past, many people married because they had to, Martin Whyte says, but "Now it’s more a positive choice. When people make it, it is a more intentional choice accepted with commitment and knowledge." For the couples Dudley Rose marries, choosing to wed "has to do with firmly making a commitment, saying that we recognize that this is an additional important step in our relationship. In the ’60s and ’70s, when people decided they wouldn’t get married and would just live together, they often said, ‘What’s marriage? It’s just a sheet of paper.’

"People are recognizing that it’s a lot more than that," Rose continues. "It’s difficult to be married, to stay in a relationship, to make a commitment to stay in as best one can through thick and thin, to really adjust one’s life to be in the relationship with someone else. You’re committed over the long haul, and you’re not going to have the easy opt out from it." As Gomes tells couples who have cohabited before marrying, "You may think it’s just a ceremony, but there will be a significant difference between living together as long as it’s good and productive, and living in marriage for better or worse until you are parted by death."

When I came to Harvard in 1970, the model for many young people was the wedding in Love Story," recalls Peter J. Gomes, who has performed marriages in Harvard’s Memorial Church for 34 years. Reflecting on the schmaltzy melodrama about a rich Crimson preppie who abandons his family fortune to marry a working-class Cliffie, only to lose her to an early death, the University’s Plummer professor of Christian morals and Pusey minister dubs the film’s secular, do-it-yourself vows "religion lite," adding that "the ceremony was the archetype of the time."

By the early 1980s, however, Love Story’s run as a matrimonial exemplar had ended, and the film version had become a cult initiation event during freshman orientation. Every fall, in sixties dress, the Crimson Key leads the frosh-only crowd in a sarcastic interactive commentary during a screening. ("I’ve never seen a Harvard bed that big!" a Keyster calls out during a Ryan O’Neal­Ali MacGraw love scene, to which another retorts, "I’ve never seen a Harvard bed that full.") Briefly a popular standard, Love Story quickly descended to parody.

At first blush, marriage in America seems to have followed a similar trajectory. Once a required rite of passage, seen as a genuine embodiment of shared values, it now serves as a game-show prize on Who Wants to Marry a Multimillionaire or a booby prize on My Big Fat Obnoxious Fiancé — even though wedding ceremonies have created a "bridal-industrial complex," as Lee professor of economics Claudia Goldin calls the nearly $100-billion-a-year U.S. industry that outpaces even the movie business ($45 billion a year, including sales and rentals). Egged on by celebrity magazines and wedding planners, affianced couples undertake increasingly baroque spectacles that take years to plan and cost on average $20,000 to produce.

Peter J. Gomes
Photograph by Jim Harrison

When Love Story first appeared, the United States was still deeply immersed in a "marriage culture" that encouraged and supported getting (and staying) married. But within a few years, the women’s movement, the sexual revolution, the pill, and various economic shifts had irrevocably transformed that marriage-centric society. "I won’t say it’s an endangered species, but it’s surrounded by great difficulties that were not readily apparent 35 or 40 years ago," says Gomes. "Divorce is a very serious specter — over 50 percent of our marriages end in divorce. The culture doesn’t encourage permanence or fidelity. Dual careers, while there’s nothing inherently wrong with them, tend to force people to make difficult decisions about [the] evolving roles [of] the two partners in the marriage. So the assumed stabilities of 40 or 50 years ago — the Ozzie and Harriet world that most people refer to — if they ever existed, certainly don’t exist now."

Sidebar:

Demographic Subplots

Moreover, these changes are not unique to the United States. "There are several different things going on in advanced societies, all of which have tended to make marriage less central and less dominant," says professor of sociology Martin Whyte, author of Dating, Mating, and Marriage. "People marrying later, or perhaps not at all, in larger numbers. Relatively high rates of divorce. A higher percentage of children born outside of wedlock. More people cohabiting without getting married."

Social conservatives blame divorce, cohabitation, "illegitimacy," and the demise of the traditional family for society’s ills, from poverty, crime, and juvenile delinquency to moral decay and the destruction of the American way of life. In 1996, the Republican-controlled Congress enacted, and Democratic president Bill Clinton signed, two laws legislating this belief. The "Personal Responsibility and Work Opportunity Reconciliation Act" ended "welfare as we know it" by requiring jobs and promoting marriages of welfare recipients. The Defense of Marriage Act (DOMA), in reaction to a 1993 Hawaii Supreme Court ruling that supported the right of same-sex couples to wed, defined marriage exclusively as a "one man, one woman" transaction, thus barring members of state-sanctioned same-sex unions from federal tax or Social Security benefits. (Hawaii later amended its constitution to outlaw same-sex marriage.) More controversially, DOMA preemptively removed any obligation for a state to recognize any future same-sex marriages of another state — even though the U.S. Constitution requires states to honor precisely such acts performed in other states. In a more recent crosscurrent, once Vermont legalized civil unions in 2000, and Massachusetts became the first state to make same-sex marriage lawful this past May, preexisting efforts to enact a constitutional amendment restricting marriage to "one man, one woman" intensified.

Nancy Cott
Photograph by Jim Harrison

Unsurprisingly, marriage itself has therefore come in for broad reassessment, observes Nancy Cott, Trumbull professor of American history and author of Public Vows: A History of Marriage and the Nation: "It’s ironic and interesting that same-sex marriage advocates and conservatives of the ‘family-values’ school…have both contributed to a re-evaluation of marriage in the last 20 to 25 years." In the 1970s, marriage was at its lowest ebb in public approbation, she adds, "but by the late ’90s there’s a resurgence of appreciation of marriage, seen in the leveling off of the divorce rate." Although the claims for the value of marriage by conservatives and gay-rights proponents "were from two ends of the spectrum, they came together — at least at the rhetorical level — for what marriage…accomplishes and how crucial it is as a social institution."

This is an unusual moment in the life story — the love story, if you will — of matrimony. As same-sex couples line up for marriage licenses at courthouses across Massachusetts, opponents predict the death of marriage itself. One side sees tragedy in the making, the other wants to rewrite the script entirely.

 

 

Choose me

The freedom to choose and be chosen are at the heart of American life. When Jenny accepts Oliver’s offhand proposal on the Weeks Bridge, she’s enacting a tradition of marriage based on mutual consent. And when Oliver rejects his father’s demands to change his mind, he plays the role of the democratic swain, choosing love over money. "Romantic love has been around for a long time, and it figures very dramatically in America," says Cott. "We don’t have a tradition at all of aristocratic marriage in which families did the arranging, which was all about whose line marries who else’s line and consolidates their property."

The founders, in fact, envisioned their fledgling republic as the mirror image of marriage, Cott explains: "The notion of consent to government is a founding principle, and the notion of union based on that consent is equally important. For the founders, marriage was a useful metaphor for that consent and [that] union — as the bonds that would make the entity thus formed solid and lasting." With choice and consent as shaping notions in American polity and marriage, the story of actual marriage in this country not surprisingly involves an expansion of the other core American concept: equality.

Historic change in American matrimony is especially pronounced in three areas, says Cott: the equalizing of the "respective rights and duties of wives and husbands," the dissolution of marital prohibitions based on race, and the evolution from state-defined grounds for divorce to couple-defined "no fault" divorce. The most recent area of contention, of course, is whether the state should sanction marital consent between same-sex couples. Although such a prospect is unthinkable to some, earlier forms of legal marriage are equally unimaginable now.

The common law doctrine of coverture subsumed a wife’s legal identity into her husband’s, which meant "a woman’s property as well as her earning power became the property of her husband when she married," notes Cott. But by the 1830s, "asymmetrical relations in American law and practice — master/slave, master/servant, parent/child — were all being highly questioned, and the asymmetry of husband/wife was deeply challenged by women." Yet family finances, not women’s independence, motivated legislative change, she explains. In a nineteenth-century credit economy, "enabling a wife to own her own property was a way to insulate family property from creditors": if the husband’s wheat failed, a home in the wife’s name was safe. For the good of the family — and the public purse — property-rights reform allowed a wife "to be her own person again."

As equalities expanded, patterns of marital consent evolved. In the twentieth century, for instance, marriage timing is one marker of such change. As Peter Gomes reflects, the reasons why people marry — love, companionship, stability, children — have largely remained the same. What has changed is when. "When I first began at the University in 1970, people were marrying very young, right out of college," he remembers. "It used to be the Harvard fashion to commence on Thursday and marry on the weekend" — much as Oliver and Jenny do. But by the late ’70s, "people started marrying at a considerably later age [see "Demographic Subplots," page 42], largely because of the women, who were going on to graduate school or to work or delaying commitments," Gomes explains. They would come back five, 10, even 20 years after they’d graduated to marry — often "just before the woman’s clock stopped ticking," he adds.

Martin Whyte
Photograph by Jim Harrison

Sociologists agree that women have driven the shift from the marriage-centric mores of the 1950s and ’60s. "Employment of women outside the home and other changes made attachment to a male through marriage at as early a stage as possible not only unnecessary, but then, as the divorce rate went up, an increasingly dubious proposition," says Martin Whyte. "There are also factors like increased education and the somewhat independent changes in the whole sexual culture of our society, such as widespread acceptance of premarital sex and greater tolerance of unwed motherhood."

Sex, school, and marriage form entangled choices that caught the attention of Claudia Goldin, author of Understanding the Gender Gap: An Economic History of American Women. "If you ask, ‘At what age did the median woman who is a college graduate marry in the U.S.?’ you find the following absolutely astounding graph," she says. For women graduates born from 1930 to 1950, the median age of first marriage "wiggles around age 23," she points out, "and then it climbs precipitously to 25.5 for those born in 1957" — a spectacular increase in any demographer’s view — and continues to rise. The cause? "We’ve pinned this one down to ‘the pill’ very definitively," says Goldin, citing "The Power of the Pill: Oral Contraceptives and Women’s Career and Marriage Decisions," an article in the Journal of Political Economy that she wrote with Allison professor of economics Lawrence Katz.

Other forms of birth control "were not as highly reliable," explains Goldin. "Something taken in advance, that doesn’t have to be carried around, that doesn’t have to be fished out, that doesn’t have to be negotiated, cuts the probability of pregnancy by a tremendous amount. The diffusion of the pill was enormously powerful." Within five years of FDA approval of the pill in 1960, married women were using the new miracle drug in record numbers. "But single women couldn’t easily get the pill" until 1971, when the Twenty-sixth Amendment lowered the voting age to 18 and many states followed suit by lowering the "age of majority." In 1969 an 18-year-old woman could legally obtain the pill in only nine states, but by 1971 she could do so in 30, and by 1974, only three states still prevented her from getting the pill. "When women could delay marriage due to effective contraception, then they could go to graduate school and to professional school — and let’s face it, they didn’t have to worry about not partaking in sex," Goldin adds.

The pill also cut the costs of pursuing a career by altering the "marriage market," Goldin argues: "Think about the world of 1962. Everyone is matching up…in college, and you don’t want to not do it because you’re going to get the ‘dregs.’…That’s the way it was for some very smart women, which made it frustrating." As the pill helped delay the age of marriage across the entire college-graduate population, however, women could reenter the marriage market after attaining higher degrees without finding a "depleted cohort" of likely spouses.

Understanding recent changes in the marriage market also requires looking behind the scrim of the idyllic 1950s and ’60s. "The patterns of…family life…which many Americans now look back upon with nostalgia — the stay-at-home mom and the baby boom, people marrying at very high percentages and very early — were in fact unprecedented in American history," Whyte points out. In Plymouth Colony marriage ages were around 25 for men and 22 for women, and by 1890 national median ages had changed only to 26 and 22. In the early twentieth century marrying ages gradually dropped to the 1940 median of 24.3 (men) and 21.5 (women). And "by 1956, the median age for first marriage for females had dropped to 20, which means half of all brides marrying for the first time were teenagers," Whyte says, adding that the median age for men was 22.5. "That was not traditional family life. That was produced by unusual post-World War II baby-boom conditions."

Those conditions and their effects reflect the first demographic revolution of the twentieth century: earlier centuries’ high-fertility, high-mortality families gave way to the smaller, long-lived nuclear families of the mid-twentieth century. "There was much more of a cultural consensus back in the 1950s, when almost everyone married, but it was a temporary and newly achieved thing," notes Whyte. "No sooner was this earlier change fully consolidated and spread all over the place, than what some now call a second demographic revolution got started" — kicked off, he notes, in large part by increases in paid employment for women, which had already begun in the 1950s.

Nevertheless, those mid-century images still resonate, in part because America is still "very marriage prone," Whyte points out. "Americans seem to be more hesitant about getting married, and they’re marrying later, but Americans have married at younger ages, and we still marry at younger ages, than in many European societies and in Japan." (Western societies show a general pattern of later marriage and more nonmarriage than most Asian and African societies, he notes. In both traditional and modern Chinese society, only a small percentage of men are "bare sticks," as single men are known, and marriage for women is virtually universal; but in European societies "bachelors" and "spinsters" have long made up 8 to 12 percent of the population or more. Ireland had the highest rates of nonmarriage in earlier times, when a quarter to a third of the Irish never married.) "There’s very little evidence of rejection of marriage as an institution," says Whyte, citing polls reporting that 95 percent of Americans say they want to marry and think they will. (Among those who say they don’t want to marry are some gays and lesbians "who reject marriage as a bourgeois, conservative, patriarchal institution," he notes.)

But if a pollster asks, "Can a woman or can a man have a full and complete life without ever getting married?" the answer is also yes, Whyte says. In one study, 70 to 75 percent of those surveyed agreed with this view. "In the 1960s, very few people would say yes, and now a much higher percentage of people will. People still want to get married, but the urgency or the sense that it’s necessary — or that you can’t have a full life without getting married — has clearly changed."

 

 

The child factor

While marriage has become less essential in American culture, it has also become less centered around children. As reproductive freedom expanded, so has the option of when to have children — or whether to have them at all. "Marriage, as it evolved into personal affectional choices, becomes in some sense increasingly selfish, and children force us not to be selfish," observes Peter Gomes. "You have to bring them up. You’re obliged to deal with them — and it’s an inconvenience that’s going to last a lifetime. This places a dent in the intimacy between the couple. One of the reasons that childbearing has been postponed in many marriages — far beyond what used to be thought of as the normal childbearing time — was that people weren’t ready to introduce such fundamental change into their lives."

Gomes doesn’t believe that procreation is the only reason to marry, but he does ask young couples directly about children during premarital consultations. "Sometimes it’s an embarrassing conversation for them," he says. "When they ask what I think, I say, ‘I think you should have as many and as early as possible! Your marriage should be shaped together with, not in spite of, your children.’" Yet he’s also dubious of "having it all" — the family, the children, the job, the intimacy, and the independence: "I think it’s still pretty risky."

As this second, child-optional demographic revolution unfolds, "there’s less consensus on what the proper ways of organizing your private life are," Martin Whyte observes. "There’s more acceptance and increasing tolerance of diverse lifestyles." But the conservative critics say that marriage itself is endangered — in general, and in particular by same-sex marriage.

Elizabeth Bartholet
Photograph by Jim Harrison

Others see same-sex marriage as the inevitable, evolutionary outcome of deeply held American beliefs in relational and reproductive freedom, as well as ensuing developments in the laws concerning parenting and the status of parental rights. "Many people treat the same-sex marriage decision [in Massachusetts] as just incredibly controversial, and in my view, it’s better seen as inevitable," says Wasserstein public interest professor of law Elizabeth Bartholet, the author of Family Bonds: Adoption, Infertility, and the New World of Child Production. Because "our society believes so powerfully in reproductive freedom, we have allowed, and are not going to stop allowing, gays to parent — to have children, both naturally and through reproductive technology, and to hold onto those children. We also believe in relational freedom. We have allowed and are not going to stop allowing gays to live together."

European countries, including Sweden and France among others, have generally outpaced the United States in legitimizing gay unions, Bartholet points out, but "most of those countries did not recognize the right of such adults to have children, and did not allow them access to reproductive technology or adoption. So the parenting phenomenon is seen as hugely controversial in other countries. We’ve already done gay parenting. Even in Massachusetts, most of the conservatives who condemn the same-sex marriage decision are arguing that we ought to do civil unions in a form that would facilitate giving gays official parental status, but just not allow…marriage.

"Having gone as far as we have in allowing gay parenting, it’s hardly legitimate for society to say, ‘Well, you can’t marry.’ Not only is it just punishing the gay parents," Bartholet continues, "It’s also punishing the children."

 

 

By the authority vested in me…

In Public Vows, Nancy Cott describes how American settlers in the New World often practiced informal "self-marriage" out of necessity. In such common-law marriages a couple simply lived together, calling themselves husband and wife without ceremony, chaplain, or license — all of which are visible in Love Story’s do-it-yourself wedding. While Jenny’s father, a Roman Catholic, tries to make sense of this "religion-lite" version of the holy sacrament, the chaplain stands by at Phillips Brooks House as Jenny recites "When our two souls stand up erect and strong," an Elizabeth Barrett Browning sonnet, to which Oliver replies with a passage from Walt Whitman’s "Song of the Open Road." After their unaided exchange of traditional vows, the chaplain finally steps in to seal the deal.

"By the authority vested in me by the Commonwealth of Massachusetts, I pronounce you…" is a phrase still used in many weddings across the state, though it’s no longer required. Nevertheless, Peter Gomes points out, "I am allowed to marry people not because I am a minister, but because I am an officer of the state. It is the state that regulates marriage and permits the clergy to do it. The fundamental definition of marriage in this country is as a civil institution, and that point can’t be made too often." As professor of law Janet Halley frequently reminds her family-law students, in the words of the Supreme Court landmark marriage case of 1888, Maynard v. Hill, "There are, in effect, three parties to every marriage: the man, the woman, and the state."

With the lifting of prohibitions against premarital or extramarital sex and cohabitation, Cott notes, "the question of whether one married or not came to seem more and more…like just a decision between the two of us — ‘Do we live together or do we get married?’" Yet the state still exerts firm control, particularly in divorce and custody settlements, and still sets the criteria for who can and cannot legally marry.

As Halley points out, "The right-to-marry claim is a weird kind of right. We typically think of rights in liberalism as rights to be free from the state, but this is an argument for the right to enter into a regulated relationship with the state." Halley, whose essay "Recognition, Rights, Regulation, Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate" appears in Legal Recognition of Same-Sex Partnerships: A Study of National, European, and International Law, acknowledges the "tremendous asset transfers to marriages in our system" that serve as "subsidies" to encourage and support marriage. But she considers the burdens of marriage an "underarticulated category" in gay-rights rhetoric: "It was very rarely said, ‘I want to have the powers of marriage over my most beloved person in the world. I want to be able to divorce her. I want to be able to punish him for marital infidelity by getting a more favorable property division.’ All the rights and benefits of marriage are benefits only because they extract some social good from someone, and many of them extract that social good from the spouse."

In the past, the state used the burden of divorce in part to define the marital roles of husband and wife, Cott argues: "If the state says a ground for divorce is extreme cruelty, it says that the role of spouses is to be other than extremely cruel, to be kind. It’s a negative that reinforces what the positive criteria for marriage are. A person seeking the divorce would have to show the court that the other person did not adhere to the criteria set by the state for the marital role." But in the late twentieth century, marriage moved "toward the spouses themselves defining what the appropriate marital role or performance is" — in particular through no-fault divorce.

Out of this shifting legal context have emerged new assumptions about marriage. Elizabeth Bartholet characterizes this move from the state having "enormous control over marriage" to people writing "the terms of their own marriage" as follows: "The old idea was that there’s this thing called marriage and it’s a status that the state rules define: once you’re in it, it’s forever; there’s no adultery; it’s only in this context you can have children; women stay at home; men work," and so on. In that context, courts struck down premarital or prenuptial contracts as inconsistent with "no divorce" rules, she says. But today, in a divorce-at-will context, "People are allowed to have premarital contracts and to write the terms of their own divorces."

More broadly, the trend of recognizing "de facto" relationships means that "if you look like a family, feel, smell like a family — you cook meals together, share bank accounts — then you are a family for the purposes of the law," as Bartholet puts it. In the late-twentieth and early-twenty-first centuries, the tendency to protect families has expanded gay rights and, inevitably in Bartholet’s view, the notion of marriage: "Since gays and lesbians have not been allowed to marry formally, but have been allowed to live together and bring up children and are creating that kind of de facto family in huge numbers, the courts have felt a fair amount of pressure to recognize the families as legitimate."

Bartholet describes two key "legitimation moves" by the courts. One is second-parent adoption, whereby the gay parent who is not the biological or primary adoptive parent is allowed to adopt. "In allowing the gay de facto co-parent to adopt," she explains, "the courts are allowing the couple to be legally as a couple the parents of the child — when many people think the ban on marriage has at its heart not letting gays parent. So here we are having the courts say, no, they can parent officially as a couple, even though they’re not allowed to marry. The second key legitimation move has been to say that gay de facto parents, even if they don’t co-adopt, can sue for custody or visitation if the couple splits up, just as if they were marital partners."

As courts have ruled in favor of gay rights, Bartholet says, the law has simultaneously drawn into the de facto family circle unmarried heterosexual couples, giving them more and more of the rights and privileges that were traditionally reserved for those formally married. This move — reflecting legal respect for individual autonomy — has led to unmarried fathers acquiring parental rights. Overall, legal rules about parenting have pushed at the boundaries of marriage, as childbearing and -rearing have escaped from the exclusive bounds of matrimony. "Second-parent adoption and de facto-parent doctrine have been developed in recognition of the dilemma courts are facing — and our society is facing — when on the one hand we say ‘no marriage’ to gay couples, but on the other hand we say it’s perfectly okay for you to use reproductive technology, get pregnant and produce kids, and keep them to raise and live with whomever you want," says Bartholet.

Same-sex marriage advocates also employ what Janet Halley calls the recognition argument: "I’m already in a same-sex marriage, we’re already marriage-like, we’re already in a marriage, but we’re denied recognition. That’s a deprivation of benefits, that’s a stigma, and that’s a dignitary harm. All the state has to do is just recognize something that already exists." But that suppresses another dimension, she argues, which is that gay couples have increasingly modeled their relationships on marriage: "It’s not that they already exist. There’s been a lot of change in the gay community over the last 15 or 20 years — [an] increasing demographic flow of same-sex relationships toward the marital form."

As a legal realist, Halley would like to change the topic, so that "it’s not about same-sex marriage good or bad, but ‘Are the consequences of same-sex marriage harmful or productive across the full array of the effects of marriage?’" If a lesbian couple have a child and then split up, and the birth mother refuses to let her former partner see the child, "I want to have state power there to require her to keep that child in a relationship with the other woman, so I’m pro-same-sex marriage," she says. But if it’s a case where one member of a gay couple has an affair with somebody else, Halley’s ambivalence emerges. "Where there’s marriage, the person having the affair is now an adulterer," she points out. "There are criminal statutes against it, and almost all the states give very strong preferences to the ‘wronged spouse’ when that spouse sues for divorce…I find that an awful kind of power for one person to have over another, and there I wish it would just be an affair and not adultery. And for that, [the relationship] would need to not be a marriage."

"You go into these places where people are wildly enthusiastic for same-sex marriage, and you describe the marriage laws and how they function, and you’re such a spoiler!" Halley says with a laugh. When discussing marriage with full knowledge of what it means, "You’re really wrecking the good feeling they have about it all."

 

 

Marital erosion versus evolution

Following the script of the 1950s and ’60s, Jenny and Oliver meet in college, fall in love, make love, marry, work their way through his Harvard law degree, move to Manhattan, and make babies — or try to. Jenny is smart, sassy, and strong, but when she reprises her mother’s portrayal of the wife, even ironically ("I’m in the kitchen where I belong!"), she "malfunctions." She not only can’t reproduce, she starts to die. And like the first demographic revolution she represents, she dies young.

Until 30 or 40 years ago, the gender distinctions in marriage generally provided structural support. But when women, participating in larger historical trends toward greater equality, began to tire of their traditional roles and change them, both sides of the relationship were displaced. "There were lots of stressors that made it more difficult for marriage to happen," says Dudley Rose, assistant dean for ministry studies at the Divinity School. "People — particularly women, rightly — didn’t want to be put into situations where they had a set of responsibilities that completely undermined their careers." For social conservatives, these shifts in roles have compromised the very foundation of marriage.

Yet "change is characteristic of marriage. It’s not a static institution," Nancy Cott emphasizes. Between gender tremors and cultural surges, Americans now live among a multiplicity of family patterns, says Cott: "People can cohabit without great social disapproval; they can live in multigenerational families; there are scenes of group living; there are gay unions or civil unions. There’s a greater variety of household forms that are approved and accepted, or at least tolerated, at the same time that there are some very strong voices appreciating conventional, traditional marriage in ways that were not voiced 25 or 30 years ago."

As Martin Whyte points out, marital change and diversity are not unique to the present. "Obviously there are many societies that allow polygyny, the correct term for a male with more than one wife, and even polyandry, where women have extra husbands. Even in the United States we had our own — the U.S. Army was sent into Utah [in 1857] to try and suppress polygyny [among Mormons], and it still exists. In the broader cross-cultural record, there are African tribes that allowed a childless widow to marry ‘wives’ in order to produce heirs." Yet despite a few famous exceptions — the Nayar in nineteenth-century India had impermanent sexual-romantic relationships and matrilineal families where mothers, grandmothers, and maternal uncles raised children, and the Na, an ethnic minority in China, still follow a similar pattern — Whyte says that, where records exist, "virtually every society in every time period has marriage as an institution."

But not monogamy. Missionary, explorer, and anthropological reports about pre-industrial societies have led to calculations that only 20 to 35 percent were monogamous, less than 1 percent polyandrous, and the rest polygynous, notes Whyte: "So monogamy as the dominant and mandated pattern is of more recent vintage historically." As Peter Gomes points out, "All you have to do is read about marriages in the Bible — they certainly don’t confirm or conform to present-day notions. In the first five books of the Old Testament, in Genesis, polygamy and multiple wives was the rule, always in favor of the man. Marriage had as one of its primary functions the perpetuation of a man’s seed. That certainly wouldn’t be a fashionable notion these days."

For many these days, same-sex marriage is the deadliest threat to the future of marriage. Janet Halley paraphrases the current argument this way: Gay-rights advocates say, "We’re already married, we’re just asking for recognition, it won’t change marriage, it will just generate more married people." Opponents of same-sex marriage say, "No! If you get married it’s not recognition of existing marriage, it’s a transformation of the institution of marriage, and it will ruin marriage. It will take away something that’s very important about marriage — something in its norms, something in its centrality, something in its heterosexuality."

If same-sex marriage is widely adopted, Halley sees two possible futures for marriage, though she hesitates to guess which would prevail. In the first scenario, "the fact that same-sex couples can get married will produce pressure on them to get married. If I’m in a relationship with you and we’re of the same sex and now marriage is an option and we don’t do it, we’re really not doing it, we’re choosing not to do it."

In the second scenario, says Halley, "social conservatives actually opt out of civil marriage," arguing that "Marriage has been degraded and civil marriage is spoiled, but we don’t need it. We’ll just have a cohabitation regime where if you live together for a long enough time all the duties and rights that now attach to marriage get imposed on you. We’ll strengthen religious marriage and get state support for it." They could shut down civil marriage completely, Halley adds, "which is something we’ve had since Henry VIII in the Anglo-American tradition."

In one corner we have what Halley calls the "marriage-is-eroding — no-we’re-not-changing-marriage" debate over same-sex matrimony, and in the other, debate over whether marriage in general is waxing or waning. "I don’t think marriage is in decline or going out of style or anything of the sort," says Whyte, "but it is less central. The conservatives are quite right — it is more of an option rather than an absolute necessity." As Dudley Rose puts it, the marriage prerequisite "to cohabit, to have children, to live coupled lives, is no longer in place. People can quite readily not be married." If the social pressures to marry no longer exist, why do couples still marry?

For Gomes, the answer is the same regardless of which corner you’re in: "Gay and lesbian couples are seeking the same things that everyone else is — stability, respectability, endurance, all of those qualities that we associate with marriage. Therefore the move for same-sex marriage is an endorsement of marriage itself. I would argue, quite to the contrary of hysterical critics, that it’s probably the strongest endorsement of the institution of marriage that I can think of in my lifetime." In fact, he adds, "with the exception of the biological production of children, same-sex marriage does everything for marriage that any marriage would do and more, because it’s so unexpected."

Cott adds economic factors to the marital mix. Commentators often view emotional and economic incentives on an historical "seesaw," she explains: in the past these incentives were economic, but now they’re only emotional, "and do we worry that the intimacy incentives are weaker or more fallible or more fleeting than the economic?" In Cott’s opinion, "They usually went together in the past, and they still go together in current times. It’s true that people look more immediately for romantic and intimate bonds with someone now, but that doesn’t mean it didn’t figure in the past." Moreover, "our society is full of economic benefits for people who are married….And, of course, there’s all sorts of cultural reinforcement for falling in love, for being part of a couple, for going two by two in some recognized way."

Today’s wage-and-service economy may have eliminated "the same sort of economic compulsions to marry that existed 200 years ago when people lived in farm families," continues Cott, but there’s still "a strong consensus that living within a household of more than one person is a more economically viable way to live." In addition, "there’s the issue of children…people usually want to raise children with a partner."

People may no longer need to marry for economic security, but they do seem to need economic security to marry. The marriage rate is much higher among people of higher socioeconomic and educational levels, and it’s especially low among those without the same opportunities, Cott points out. "Clearly the ability to envision getting married and keeping a marriage going is premised on a certain level of economic stability, and that’s the sequence of causation that a lot of government welfare reformers seem to ignore. They see the sequence as moving in the opposite direction — if people married, then they’d be economically stable and their children would grow up in a better environment," she says. "But many sociological and economic studies suggest it’s really the opposite, that the problem is first economic, and it requires — especially of lower-class men — a better income, a sense of being able to earn an income, before such a man will see himself as capable of being married."

Without the same economic or social compulsions to marry, we’ve again arrived at a very American place: the primacy of choice. In the past, many people married because they had to, Martin Whyte says, but "Now it’s more a positive choice. When people make it, it is a more intentional choice accepted with commitment and knowledge." For the couples Dudley Rose marries, choosing to wed "has to do with firmly making a commitment, saying that we recognize that this is an additional important step in our relationship. In the ’60s and ’70s, when people decided they wouldn’t get married and would just live together, they often said, ‘What’s marriage? It’s just a sheet of paper.’

"People are recognizing that it’s a lot more than that," Rose continues. "It’s difficult to be married, to stay in a relationship, to make a commitment to stay in as best one can through thick and thin, to really adjust one’s life to be in the relationship with someone else. You’re committed over the long haul, and you’re not going to have the easy opt out from it." As Gomes tells couples who have cohabited before marrying, "You may think it’s just a ceremony, but there will be a significant difference between living together as long as it’s good and productive, and living in marriage for better or worse until you are parted by death."

Women and men now have more choice than ever about whether or not to enter into this "peculiar" obligation to each other and the state, while same-sex couples are demanding equal opportunity to make the same choice. Marriage, rather recently considered a repressive regime best overthrown or abandoned, has somehow become a utopian territory where all good things come to pass and at whose borders refugees petition not only for asylum but citizenship itself. In the tale of matrimony, we seem to be witnessing the emergence of a new era of mutual consent — consent with the institution of marriage itself.

"It’s hard to overestimate the function of choice in this," Rose observes. When marriage involves social or economic necessity, one cannot fully choose the institution or its obligations. But when all the parties involved — spouse, spouse, and state — are free to commit without pressure, then mutual consent takes on new meaning. "Traditionally a ‘yoke,’" Cott writes in Public Vows, "marriage can now also symbolize freedom" — freedom to choose how and with whom to organize your private life, freedom to choose how and with whom to raise children or not, freedom to choose how and with whom to enter into and redefine the burdens of state-sanctioned commitment.

If "marriage is an evolving work in process," as Gomes and others suggest, it may be choice that will give it an evolutionary edge. When the consent to marry occurs in the context of its not having to occur, perhaps it is mutual consent of a higher order. And when the "weird right" of matrimony is equally available to all, perhaps the public institution of marriage will gain in strength and meaning. Given that American marriage is founded on mutual consent — which requires a context of freedom, equality, and, perhaps most important of all, choice — we may be on the verge of an American renaissance of marriage.

"I’ve heard so many conversations over the years, ‘Oh, marriage is extinct, it’s on the way out.’ Well I certainly haven’t observed that in my 34 years in the Memorial Church, not a bit," says Peter Gomes. "It’s interesting that the marriage metaphor just remains with people. It changes and evolves, but it will not go away — and it cannot, in my opinion, be destroyed."

 

Harbour Fraser Hodder, Ph.D. ’91, a contributing editor of this magazine, lives with her husband in North Brookfield, Massachusetts.    

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Women and men now have more choice than ever about whether or not to enter into this "peculiar" obligation to each other and the state, while same-sex couples are demanding equal opportunity to make the same choice. Marriage, rather recently considered a repressive regime best overthrown or abandoned, has somehow become a utopian territory where all good things come to pass and at whose borders refugees petition not only for asylum but citizenship itself. In the tale of matrimony, we seem to be witnessing the emergence of a new era of mutual consent — consent with the institution of marriage itself.

"It’s hard to overestimate the function of choice in this," Rose observes. When marriage involves social or economic necessity, one cannot fully choose the institution or its obligations. But when all the parties involved — spouse, spouse, and state — are free to commit without pressure, then mutual consent takes on new meaning. "Traditionally a ‘yoke,’" Cott writes in Public Vows, "marriage can now also symbolize freedom" — freedom to choose how and with whom to organize your private life, freedom to choose how and with whom to raise children or not, freedom to choose how and with whom to enter into and redefine the burdens of state-sanctioned commitment.

If "marriage is an evolving work in process," as Gomes and others suggest, it may be choice that will give it an evolutionary edge. When the consent to marry occurs in the context of its not having to occur, perhaps it is mutual consent of a higher order. And when the "weird right" of matrimony is equally available to all, perhaps the public institution of marriage will gain in strength and meaning. Given that American marriage is founded on mutual consent — which requires a context of freedom, equality, and, perhaps most important of all, choice — we may be on the verge of an American renaissance of marriage.

"I’ve heard so many conversations over the years, ‘Oh, marriage is extinct, it’s on the way out.’ Well I certainly haven’t observed that in my 34 years in the Memorial Church, not a bit," says Peter Gomes. "It’s interesting that the marriage metaphor just remains with people. It changes and evolves, but it will not go away — and it cannot, in my opinion, be destroyed."

 

Harbour Fraser Hodder, Ph.D. ’91, a contributing editor of this magazine, lives with her husband in North Brookfield, Massachusetts.