A Right to Marry? Stephanie Coontz

A Right to Marry? Stephanie Coontz Responds

AS NUSSBAUM suggests, there are many logical inconsistencies in the argument that marriage is about encouraging procreation and guaranteeing children the support of both a mother and a father. We do not deny marriage to heterosexuals who cannot or will not reproduce, nor do we any longer forbid divorce, or refuse to recognize the right of unwed mothers to raise children.

But it’s also important to note the historical inaccuracy of the claim that traditional marriage was ever about the protection and procreation of children. Marriage was invented largely to get in-laws, and as soon as societies developed inequalities in wealth and power, forging advantageous marital alliances became a tool for protecting or enhancing a family’s claim to property and political authority. For thousands of years, therefore, parents denied young people the right to freely choose their own mates and organize their own reproduction. Everywhere that marriage was a powerful institution for regulating social life, one of its central props was the equally powerful institution of illegitimacy, which denied many children access to parental protection and societal support.

In Anglo-American law, a child born outside an approved marriage was a “fillius nullius”–a child of no one, entitled to nothing. In the nineteenth century, tens of thousands of such children were abandoned–often to face death—in the towns and villages of Europe.

In the United States, right until the late 1960s, a child born out of wedlock was not entitled to collect debts owed to his mother or to inherit from his mother’s parents if she predeceased them. Not until the early 1970s did the Supreme Court rule that states could not limit or deny the support obligations of unwed fathers.

The abolition of illegitimacy was an important humanitarian reform that ended centuries of injustice, but it–and not the demands of same-sex couples–has also weakened the role of marriage in organizing economic and political rights, and therefore made marriage more a matter of individual preference than ever before.

History teaches us an even more ironic lesson when it comes to the role of marriage in ensuring the procreation of children. This was indeed part of the traditional function of marriage in most societies, but that was overturned by the advent of Christianity. One of the radical innovations of Christianity was its insistence on the permanence of monogamous unions. However, this required Church leaders to reject the idea that the central function of marriage was to produce children.

In almost every other cultural tradition, procreation was so crucial to marriage that when a union failed to produce children, a man could either divorce his wife or take another wife or concubine to bear him children. The Catholic church allowed a marriage to be annulled if the man and women were discovered to be too closely related, if one had made a prior commitment to marry someone else, or if the man was unable to achieve an erection. But the church explicitly rejected infertility as a reason for divorce or annulment. Popes and bishops waged bitter battles over this question with kings and nobles who wished to safeguard their property by divorcing a wife who had failed to produce an heir. In each case the church imposed its will (often helped by other nobles who were delighted to have a rival left vulnerable by lack of an heir).

This became the Anglo-American legal tradition. Never in all of American legal history have the courts held that the inability to reproduce was an impediment to marriage or, when divorce was harder to get than it is today, a valid reason for divorce.

Social conservatives are quite right to argue that the institution of marriage has undergone radical changes in the past few decades. But it was heterosexual couples who instigated the real revolution in marriage–the idea that two individuals should choose their partners based on love, sexual attraction, and mutual interests rather than on the basis of economic or political calculation, male authority over women, and the fulfillment of strict gender roles. It was heterosexuals who declared, in opposition to historical tradition, that marriage was an individual right rather than a social duty and privilege for some groups but not for others. It was heterosexuals who repealed the “head and master laws” that prevailed in America until the early 1970s and have now begun to reject the idea that a valid marriage must have a husband who plays one role and a wife who plays another. Gays and lesbians have simply asked to join the revolution that heterosexuals have wrought.

Stephanie Coontz teaches history at The Evergreen State College in Olympia, WA, and is Director of Research and Public Education at the Council on Contemporary Families. She wrote Marriage, a History: How Love Conquered Marriage.