The Good Society 11.3 (2002) 88-90
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The Power of Government in Marriage
Nancy F. Cott
The contributors' characterizations of the public/private tensions and paradoxes of the marriage institution here remind me of the fable of the seven blind men and the elephant. Positioned all around the animal's bulk, each man felt a very different part—the tail, the tusk, the leg—and described the whole animal accordingly. Like an elephant, the hulking institution of marriage is nothing if not a composite of different size elements of several shapes and textures. It has political, social, economic, legal, and emotional contents—and meanings and consequences that operate in many different arenas. Even more curiously, the various components of marriage bring together apparent opposites, such as public and private, equality and difference, legal status and consensual contract.
It is no wonder, then, that a forum on marriage and public policy would wind along several different paths, even though all the contributors take up the questions whether and how public authority figures in constructing and maintaining marriage as we know it. All consider critically the policy advantages and burdens of current kinds of government involvement. I was thinking less about current policy than I was about historical process when I decided to write a history of marriage as a public institution in the United States. Contemporary protests by same-sex couples about their exclusion from marriage alerted me, initially. Their protests made newly visible something usually obscured: that a crucial third party entered into the relationship that most people considered a private choice between two.
In one sense the topic was banal. This should have been well known, that the state's action makes marriage "marriage." Anyone who has ever gone to a ceremony by a justice of the peace, or walked into a divorce court, knows that marriage is a legal creation. But the full extent, historical continuity, and consequences of state investment in marriage—these things were not recognized. Investment of public authority is so central an element in marriage that it has been taken for granted, unscrutinized, exemplifying Pierre Bourdieu's point that "Every established order tends to produce (to very different degrees and with very different means) the naturalization of its own arbitrariness." 1
To track public involvement in marriage historically, to make governmental intents to maintain or regulate marriage visible at the federal level as well as in the states, and also to parse the meanings of these policies over time—that seemed worthwhile to me. I thought it would shed some light on the persistence of gender inequality. The impacts of feminism and of the sexual revolution have been profound over the last 35 years, causing demographic and moral shifts all over the industrialized world and promising equalitarian relationships between women and men—yet worldwide, male dominance rather than gender parity still inhabits economic and political arenas. The role of marriage as a public institution seemed to me to have more to do with this persistence than was generally acknowledged. In the United States, while scholars and pundits often focus on marriage to explain gender inequality, they most often attend to the dynamics of actual marriages (childcare responsibilities, housekeeping and so on), to account for wives' disadvantages in the labor market, in professional or political ambition, for instance. These social facts are hugely important, but I was interested in another aspect, a prior aspect, so to speak: the government structuring and support of marriage so as to make the provider- dependent model of marriage the conventional, "natural" one.
Bounteous historical evidence and arguments exist to show the historical interweaving—indeed, inseparability—of gender assignments with marital roles. If marriage has been a "gender factory" (to take up Steven Nock's phrase), has not the legislative and policy input so central to institutionalizing marriage made it so? Not alone, of course. Attention might focus, deservedly, on the religious or economic or cultural or social structuring of marriage. If more attention were moved to its political and legal construction, however, one might discern how state action contributed to...