Marriage is a private relationship and a public contract stating who can marry, when, and to whom; who can officiate; obligations of married people, rights of each spouse; ownership and inheritance of property; legitimate sexual relationships; and grounds for divorce. Since revolutionary days in the United States, marriage has been connected to one’s status in the community, and the community assumed and later formalized the rules of the marriage contract. The U.S. Constitution leaves marriage and family law to the individual states.
The moral and political climate of the early colonies and later territories and states influenced marriage laws. From the beginning colonial revolutionaries favored the tenets and assumptions of English common law with the exception of divine right. Colonists defined marriage as a contract with assumed mutual consent, husbands’ support and wives’ services, spousal rights and obligations, and parental responsibilities and rights over children. Colonists assumed that males had naturally superior skills in reason and judgment and that women excelled in gentle manners and nurturing, supporting the man’s dominion over his wife and children. Wives did not have rights to own property in their names, to vote, to serve on juries, or to inherit. When a woman married her property reverted to her husband’s ownership and control—a procedure known as ‘‘coverture.’’
Christianity dominated the moral codes of the American colonies and provided the framework for early American stipulations and assumptions about marital and family roles. Christian morality dictated monogamy between spouses. Early Americans settled among Native American Indians who practiced informal marriage and divorce, followed matrilineal inheritance patterns, and shared responsibility for children. Early settlers needed to define themselves as separate from Great Britain and as more civilized than the indigenous natives. Christian marriage distinguished settlers from the ‘‘wild heathens.’’ Christianity continues to influence marital laws in the United States to this day.
Most states did not have formal marriage laws until about 1750. Marriages were often sanctified by ‘‘reputation and cohabitation’’ when people moved in together or had a child. Families kept dates of marriages and births in individual family Bibles, and some parish records exist. Informal marriage was common in the territories, and several formerly frontier states still have common-law marriage laws. These were written to allow people to move in together and get community support when the preacher was not available to marry people.
Just as informal marriages were common, so was self-divorce and abandonment. People often married again after self-divorce or abandonment; technically, they could be labeled bigamists, but local communities enforced the local standards, and few people objected to this pattern of serial marriages.
Most African-American slaves could not marry legally, a major civil rights violation, and their unions and the futures of their children depended on their slave masters. The northern states that freed slaves gradually after the American Revolution did recognize slave marriages, but southern states did not. After the ban on importing slaves in 1808, many plantation owners encouraged conjugal relations and reproduction, and slave masters and their sons also fathered children of their slaves. Those mulatto children were not considered white and did not have civil rights. The United States also criminalized intermarriage on the basis of race or color when one party was white, to keep the legitimate white race unmixed. An Indiana Law of 1840 prohibited marriage between a white and another person with as little as one-eighth ‘‘Negro blood.’’ With emancipation more African Americans formed formal marriages and many informal marriages existed between whites and African Americans despite the miscegenation laws. The local communities exercised control through acceptance or rejection.
By the early 1800s, thirteen states recognized grounds for divorce including adultery, desertion, and cruelty. Legal divorce laws also defined the obligations of former spouses to each other and their children and provided guidelines for the division of property. The petitioner for divorce usually had to document the injuries of the other and prove himself or herself free from blame. Divorce was not easy to obtain, and desertions continued to end many marriages.
The era surrounding the Civil War prompted reforms in civil rights and in marriage and divorce laws. People who opposed slavery also focused on rights of marriage more generally because slavery and marriage were considered ‘‘domestic relations.’’ Criticisms of slavery led to an examination of the power of men over women in marriage, as well as the general lack of civil liberties for women in society. Suffragettes Elizabeth Cady Stanton, Susan B. Anthony, and Lucretia Mott had important roles in the abolition movement. The Seneca Falls meeting in 1848 called for the right of women to vote and raised the issue of wives’ submission of their property and their bodies to their husbands. Women’s rights meetings received mocking publicity and ridicule, but they made inroads on the power disparity between wives and husbands.
At roughly the same time, utopian communities sprang up around the country advocating ‘‘free love’’ and rejection of the long-standing commitment of Christian marriage vows to monogamy and lifelong marriage bonds. For example, the Oneida community eliminated the exclusive pairing of couples. Utopian communities drew small numbers, but their lifestyle created more debate about marriage and the power differences between men and women.
Debate continued with the controversy about admitting Utah to the United States. Mormon polygamy offered a challenge. Marriage and family laws were reserved to the states, but the majority of the U.S. population did not want a state that sanctioned multiple wives. Eventually, Congress passed a bill to regulate marriage in the territories that made bigamy and polygamy crimes in the territories, including Utah. This set the stage for Utah’s admission to the union.
The Thirteenth Amendment to the U.S. Constitution forbids slavery and forced servitude. By 1864, freed slaves were entitled to valid marriages, recorded in the individual states. This change granted a civil right denied to African Americans, but laws prohibiting intermarriage of whites still remained. The federal government took responsibility for postwar conditions through the Bureau of asylum-refugees-and-the-convention-against-torture.html">Refugees, Freedmen and Abandoned Lands. In l865, the Freedmen’s Bureau issued rules of marriage to encourage former slaves to adopt the obligations of marriage, including husbands’ support of wives and rights to her service. Many former slaves legitimized their unions, often in mass weddings. Others ignored the opportunities to register a marriage and continued to have informal marriages and self-divorce. The bureau aimed to get universal compliance with marriage laws, and some states made cohabitation without marriage illegal.
During the early part of the twentieth century, reform movements slowly gained momentum and women gained rights to own property in their own names and, eventually in 1920, the right to vote. Husbands no longer always spoke for wives, but they were still entitled to domestic service. Industrialization, the Great Depression, and the two world wars greatly influenced families. Also, new immigrant groups began to enter the country, bringing their families and customs.
After industrialization fewer families lived and depended on farms every year. Industrialization took the primary job out of the home to the factory. Most jobs were held by men or unmarried women. Families became dependent on the paycheck from the factory or business. This concentrated economic resources and power in husbands’ hands. Wives’ roles became much more exclusively home based with children and chores. This change decreased the time fathers spent with wives and children. Because women had to ask for money from husbands to purchase goods, their overall power in the family declined.
In the late 1800s and early 1900s, there was a huge influx of immigrants for the new factory jobs. Eventually, factory workers and communities lobbied for better working conditions, public health laws, domestic relations laws, and child welfare laws that restricted the hours and ages at which children could work in the factories. Men legally held control over a woman’s body, and in many places attempts to provide birthcontrol information were thwarted, or doctors required a husband’s consent. Men held rights to correct their wives and many believed that men had rights to hit their wives. But, divorce became increasingly available to women in cases of extreme abuse.
The Great Depression led families to suffering as millions of people lost their jobs. Families experienced unemployment and doubled up on housing. The Civilian Conservation Corps employed many family men and housed them in camps far away from their families. Social workers increasingly intervened to enforce the husband/father’s obligation to support his family and to monitor the home lives of poor children. Women’s employment rose during the l930s, but usually working women had to leave their jobs when they got married. Congress passed the Social Security Act in 1935, bringing relief through unemployment and retirement benefits. Aid to Dependent Children (ADC) was set up to aid poor children, primarily in single-parent families. Men continued to hold more powerful positions in the family and in the community.
The last fifty years of the twentieth century marked more change in women’s roles and in families than in any other single period in U.S. history. Changes came with World War II, the civil rights movement, the anti-Vietnam War movement, the sexual revolution, and the women’s movement.
When men left for World War II, they left for the duration of the war, leaving wives and children largely on their own. The factories needed women to produce war goods and women responded. ‘‘Rosie the Riveter’’ symbolized that work force. Many of these women had small children and factories opened daycare centers to help. During the four years of World War II, many women gained financial independence and confidence, which they were hesitant to give up after the war, even in the face of the postwar conservative family trend. Men returned from war anxious for normalcy, and they married and divorced in record numbers in the late 1940s.
The l950s have been idealized in the media as the period of strong families, large numbers of children, stay-at-home moms, large church memberships, and prosperity. It is important to remember, however, that this period was also marked by segregation; threats to the civil rights of African Americans, homosexuals, and other minorities; and abuse of women and children behind closed doors. Housewives began to feel isolated in suburbs, overburdened and undervalued.
The l960s saw calls for civil rights reforms leading eventually to marches, sit-ins, and demonstrations. The initial response was militant opposition and some violence, but eventually, the Civil Rights Act of l964 was narrowly passed by the U.S. Congress. Many activists from the civil rights movement later organized themarches and demonstrations in opposition to the Vietnam War. The revolutionary spirit extended to sexual norms as well. Premarital sex became much more common and accepted in this decade. Women in the antiwar movement found they were asked to do the traditional women’s activities like cooking and secretarial duties, while men led the organizations. Those same women agitated for women’s rights and formed the basis for the women’s movement. The overall effect of the l960s revolutionary spirit was to undermine the authority of religion, traditional family forms, education, and governmental dictates on family matters.
From the l960s to the end of the twentieth century, family structures changed tremendously. First, the divorce rate began a steady climb in 1962 that only leveled off in 1982. Married women and mothers flocked to colleges, jobs, and careers. The rates and acceptance of cohabitation increased dramatically. Marriage rates and birth rates declined gradually, and remarriages and stepfamilies increased their numbers. Interracial marriage and single parenthood increased, particularly among minorities. By the beginning of the twenty-first century, nearly a third of children were born whose parents were not married.
This same period also saw dramatic changes in marriage and family law. Miscegenation laws were gradually eliminated; the last one was overturned by the courts in 1967. Divorce reform led every state to adopt some form of no-fault divorce, and child support orders and enforcement of them increased. Family violence laws increased to include marital rape, and states began to bring charges for domestic abuse perpetrators if evidence existed. Custody arrangements for children following divorce became more complex, including joint custody, split custody, and alternating custody. States continued to try to enforce child-support agreements through garnisheeing, fines, and imprisonment, but many support orders were still not paid in full. States eliminated the condition that husbands approve birth control and abortions, and in l973 the Roe v. Wade (410 U.S. 113, 1973) case made abortions legal in all states. Finally, women had a distinct set of civil rights laws that protected them from earlier biases in marital laws.
Increasingly, gay persons claim civil rights to the benefits of marriage, child custody, and adoption. In 2004, Massachusetts temporarily sanctioned gay marriage and San Francisco issued marriage licenses, but controversy continued. Several other states do or shortly will legitimize gay relationships and offer domestic partnerships to ensure some of the benefits of marriage. Many people oppose gay marriages, especially evangelical Christians, and they try to influence the political process to prevent them. Christianity in the United States continues to play an important role in shaping ideas about marriage, but religious groups vary. Many religious groups support civil rights for homosexuals and other changes that support equity in marriage and civil rights for all family members.
In 2004, the President and Congress funded extensive state programs to promote marriage among lowincome families. This controversial set of policies may help stabilize the families of low-income children and/ or create greater disruptions with multiple marriages and divorces.
Public authorities do shape marriage, but married people also refine definitions of rights and responsibilities in personal terms. Marriage is expected to change, but not to disappear. Each year individual states mold the marriage laws in response to community standards and to calls for increased civil rights.
References and Further Reading