I don’t know anything about Evergreen State College, except that I’d certainly steer clear of one history professor there — and if she’s representative of the rest of the faculty, I’d avoid the school entirely. But let me back up.
In today’s NY Times, one of the top most emailed articles is an op-ed by guest contributor “Stephanie Coontz, a professor of history at Evergreen State College.” Coontz is not a nobody in academic circles. Judging by her website, she has spent her long academic career focusing on women and marriage, and has published many books on the subject. She looks like a nice lady. All of which makes more incomprehensible the fundamental thinking errors underlying her op-ed piece.
Her article’s premise is spelled out in its title: “Taking Marriage Private.” That is, she suggests that marriage cease to be something affiliated with the state and become a purely private matter — sort of like living together, except with some sort of preliminary party. To support her premise, she embarks on a laundry list of historic moments in marriage, which reads like one of the time charts on a library wall — all facts, no substance or understanding. The end of the article is, of course, the conclusion that the state should allow gay marriage.
But here I am, being conclusory myself. Let me explain what I mean about the intellectual flaws in Coontz’s chronology. I think the easiest way to do that is fisk her essay. I’ll apologize in advance for the fact that fisking her essay destroys the chronological coherence of my argument, since I’m responding to her sometimes random, vague, or misleading points in the order in which she makes them.
WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.
For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married. [This argument may be technically correct, but it still misses by a mile the core issue, which is that marriage is a sacrament in the Catholic faith. Catholic marriage is not simply a formulaic procedural event. Instead, as one Catholic website explains, "Sacraments are outward signs of inward grace, instituted by Christ for our sanctification (Catechismus concil. Trident., n.4, ex S. Aug. 'De Catechizandis rudibus)." In other words, sacraments lie at the heart of the Catholic faith. People who professed themselves married, even if they did so on their own, were still presumably embracing the sacrament of marriage, which obligated the church to recognize their self-imposed status. And to the extent it was a sacrament, people were not going to mess around lightly with the concept.]
In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce. [See my discussion above.]
Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match. [True, but Coontz is being disingenuous in this paragraph by coyly handing out minimal facts. What she fails to mention was that, in the 16th Century, the Catholic Church, which hitherto had been practically indistinguishable from the governance of Europe, was suddenly being challenged by Protestantism. In England, for example, Henry VIII broke with the Pope and started the Church of England, with himself as the head. Nevertheless, he was a traditionalist and continued to be believe in marriage as a sacrament. To the extent he merged marriage and state, marriage had to be taken out of the Catholic church and put into the state to satisfy his religious requirements. The same was happening throughout Europe. As the Church faltered, the state took over, either because it was replacing the Church, as in England, or because it was trying to reinforce Church hegemony, as in France or Italy.]
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry. [Again, true, but there are a few problems. First, Coontz makes it sound as if merely living together was sufficient to create a recognized marriage. The opposite was true. Common law marriages were hard to prove at law: the relationship had to be one of long duration, and both parties to the relationship had to hold themselves out to others as husband and wife. In an increasingly bureaucratized age, and in an era of greater social dislocation and alienation, however, these public representations became harder to validate, and the states needed a recognizable procedure for clarifying relationships. The potent amalgam of a mobile population, children, and the full faith and credit clause requiring State A to recognize a marriage in State B, meant that it made sense to standardize the situation.]
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce. [I'm not sure what Coontz's point is here. That some states had bad marriage laws has nothing to do with the fact that states had valid reasons for passing basic marriage laws in the first instance.]
In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners. [Ditto.]
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information. [Again, Coontz is being disingenuous by slipping in here for the very first time in her lengthy disquisition the core historical (and, perhaps, modern) point of marriage: children. Indeed, she doesn't even make this point explicitly, instead euphemizing it as "a way of distributing resources to dependents," and then trying to disguise the point with babble about Social Security benefits and hospital visits. At all times, in all cultures, the focus behind marriage is children and inheritance. When the Church controls a society, the Church sets the terms for marriage. When the state controls society, the state sets the terms. But it's always about establishing patrimony, ensuring child care, and distributing wealth. To imply that this factor is a sudden mid-20th century phenomenon is misleading.]
In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare.
Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households. [This is not an argument. It's a glossy statement that hides the fact that the 40 percent of America's children that are born to unmarried parents also constitute the greatest number of American children living in poverty. And the fact that people have identities outside of marriage has nothing to do with the societal benefits that arise from marriage (although I assume she's trying to say that, in the 1950s, when "almost all adults were married," all you needed was a marriage license to become a recipient of distributed state benefits. That's untrue, of course.)]
Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married. [Whoa, Nellie! Did she just say that children cannot be denied inheritance rights? That's certainly true in places such as Italy and Brazil, but last I heard, parents could still cut ungrateful American brats out of their wills. In fact, I know of one particularly mean-spirted parent who successfully cut her lovely child out of her will. I will provide for my children as part of my testamentary planning because I love them, not because the state forces me to. And even in the old days, when remarriage was common because of one spouse's death, the break-up of a marriage didn't necessarily deny the children of a previous marriage any testamentary rights. It just depended on the way in which the estate was originally devised, a fact all Jane Austen readers understand.]
As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. [Well, then, maybe they should have gotten married so as to take advantage of the government benefits. Polikoff and Coontz both get the argument bass ackwards here. They say because the law is unfair to people who make different choices, the law is wrong. It never occurs to them that the law is intended to increase societal stability, especially for children, and that maybe the choices are wrong.] A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments. [Ditto.]
Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments. [Ditto.]
Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship. [Or perhaps it's time for society to remember what marriage is about and, instead of shaping the law to choices that although beneficial to individuals are deleterious to society, Society should remind individuals that marriage is good for children and stabilizes society, that these laws serve a valid purpose and that those who, knowing the law, still elect to co-habitate, have made their choices and must take their chances.]
As for me, I’m conflicted about co-habitation before marriage. I did it because, in my heyday, everyone did it. I was very pragmatic about it, seeing it as a way to save on rent and as a practice for marriage. As to the latter, it wasn’t, of course, a point best made by a friend of mine who also lived with her husband before marrying him. She said that everyone asked her, “if you’re already living together, why get married?” She replied that this question showed a complete misunderstand of marriage.
“When John and I were living together, we always knew that we could just walk away if it didn’t work out. We were roommates with sex. However, when we got married, we stood before man and God and made a commitment to each other. Our vows were a covenant to the marriage. It’s not a contract. It’s not that, if one person ‘breaches’ the contract, the other person can walk out. A covenant binds you regardless of the other person. Since we’re married, John and I are much more careful of each other’s feelings because we are bound together.”
My friend was absolutely right. And she spoke that way before having children. As those of us with children know, that binding tightens when there are children involved. Even though children can put great stress on a marriage, their needs — physical, emotional and economic — are best met by a stable marriage.
When marriage is a miserably unhappy experience, even if there are children involved, it’s probably a mistake to try to hold the marriage together. However, if the marriage is tolerable, that combination of public commitment, religious covenant, and obligation to the children should keep a couple together, since their togetherness benefits their children and society as a whole.
UPDATE: Myriad typos corrected, although I’m sure you can still find many more.