American Marriage: A Political Institution

Chapter 2. “What Constitutes a Valid Marriage?”

Chapter 2 “What Constitutes a Valid Marriage?” In an 1881 essay that won a New York University Law School prize, lawyer Charles Noble lamented “the contradictory and indefinite rules which come to us from various parts of the United States, when we ask this most fundamental of questions, ‘What constitutes a valid marriage?’”1 Noble’s anxiety reflected not merely growing concern over the inconsistency in American marriage rules. It also anticipated the more general impulse of many Progressive Era reformers who sought greater uniformity in American law, policy, and social practices. From 1880 to 1920, state marriage laws became part of a larger codification battle that was occurring in almost every institution in the United States as the substantive political changes that marked the Progressive Era proliferated nationally. Marriage, however, was not simply one of many sites in which Progressive Era imperatives were articulated. Rather, marriage became a central institution through which to contest and resolve three perceived problems that defined the politics of the period. One of these problems was how to protect traditional norms in the midst of a rapid movement toward modernization, social complexity, and urbanization. A second problem was how to stabilize the nation’s dominant racial identity at a moment when mass immigration from eastern and southern Europe threatened to overwhelm Anglo-Saxon hegemony. A third problem was how to produce a national uniformity of law and policy in the context of a solidifying nation-state. Progressives met these deeply intertwined challenges by attempting to define the boundaries of civic membership, a definition that concerned both the norms and practices of American citizenship, and also what they understood to be the genetic capacity for citizenship. To define the cultural and biological terms of immigrant assimilation, social reformers, immigration officials, judges, and legislators turned to marriage as the fundamental institution responsible for 48 Chapter 2 the reproduction (or dangerous decay) of both values and blood. Marriage in this era became a form of state obligation as its status as a locally practiced right correspondingly diminished. Examining marriage’s role in the Progressive Era allows us to understand its centrality to the fundamental imperatives of that period. Marriage underwent intensive regulatory transformation as its rules became more standardized and its connection to citizenship, naturalization, and national identity became more prominent. The institution was transformed by the imperatives of bureaucratization, democratization, centralization , the fostering of national uniformity, and the eradication of difference, either by exclusion or assimilation—what historian Robert Wiebe has called “the search for order.”2 Policies and decisions concerning the obligation and rights of marriage and family served to locate morality, sexuality, and the reproduction of civic values in the household as well as in the nation; to defend and reproduce biological purity and perfection as the new eugenic science demanded; and to secure and reflect ordered coherence in the modern nation-state over the individual’s right to consent. The expansion of marital law and policy in these years represented an attempt to preserve stable marriages and promote what were viewed as “fit” families in a society where the image of the ideal American household, and the environment in which that family was believed to flourish, seemed insecure .3 But more than that, marriage was a regulatory instrument used to stabilize a national identity dislocated by the rapid rise of immigration. By the first decades of the twentieth century, a more forthright notion of a “public interest” in marriage had notably circumscribed nuptial privatism in marriage law, which had been eroding since Reconstruction.4 Scholars of the Progressive Era have analyzed the political responses to immigration, industrialization , and urbanization, yet none have examined the key role marriage played in these struggles. Conversely, scholars of marriage have shown how the institution underwent regulatory transformations in the era, but have not linked those transformations to the establishment of a new civic order. In the Progressive Era, marriage as an institution not only ordered sexual, reproductive, childrearing, and economic practices within marriage, but reproduction, cohabitation, migration, naturalization, and other practices outside of marriage as well. In this period, there was a critical relationship between the regulation of marriage as a form of obligation and the construction of a national political order. Three major changes in marriage 49 “Valid Marriage” law and policy reveal Progressive Era attempts to refashion national identity : first, solemnization statutes prescribed the obligatory and mandatory rites necessary for a legal union...