Final Paper - first draft

Marriage is clearly a status favored both by the government and by the people of America. This privileged status, however, is not available to all people. Why? Throughout America’s history and even to this day there have existed rules regulating the eligibility of citizens for this privileged class. Historically these restrictions have affected women, African-Americans, same-sex couples, and countless others. Why would an institution so clearly intrinsic to the American lifestyle be denied to certain citizens? The reasons have ranged from genetic inferiority to God’s divine word, but the effects have remained the same: groups of people have been and still are excluded from the government’s special treatment of married couples. What happens when a status so favored by both the government and the people, in this case marriage, is given to one group but withheld from another? The excluded group feels the sting of institutional discrimination; whatever social disadvantage that group is facing is both reinforced and perpetuated by the law. The effect is especially devastating in the case of a right like marriage, which has powerful ramifications in both the social and legal realms. Because marriage exists as both a social and legal institution, every marriage law has strong influence on both of these spheres. Marriage laws define the rights and roles of every group of citizens, often bolstering one at the expense of another.

Marriage has always held a special affection with the American persona, transcending a legal status to be held as a social ideal. Chief Justice Marshall of the Massachusetts Supreme Court beautifully and accurately described marriage as, “at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family…because it fulfills yearnings for security, safe haven, and connection that expresses our common humanity” (Marshall in a painful process 169). While marriage may be a legal status as its most basic level, nowhere in that description are ‘the right to shared economic benefit and the right to change one’s last name’ mentioned. Marriage means more to the American people than the laws accompanying the status. The case Loving v. Virginia cemented that concept in 1967, calling marriage “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” (Eskridge, “Sexuality” 799). As a fundamental right, all American citizens should have access to the legal right and social status of marriage. That is why it is all the more devastating when such a widely idealized right is withheld from certain groups, marking them as somehow inferior or undeserving. Granting marriage to one group but not another reaffirms the superiority of the first group at the expense of the second, and has simultaneous legal and social consequences for the restricted group. Legally the effects could be as far reaching as race politics, in the case of interracial marriage, or citizenship rules in the case of women’s marriage laws. Socially, the restricted group takes the burden of inequality and blatant discrimination. Professor Nancy Cott says in her book about marriage laws, “the exclusion of same-sex partners from free choice in marriage stigmatizes their relationship, and reinforces a caste supremacy of heterosexuality over homosexuality just as laws banning marriages across the colour line exhibited and reinforced white supremacy” (“Public Vows” 216). Denying the right of marriage walks the walk and talks the talk of discrimination, both by legal oppression and social stigmatization.

Cinnamon Rolls and Citizenship: the Effects of Coverture Laws on Women’s Rights and Roles

Through much of the nineteenth century and even spilling into the early 1900s, women were bound in marriage by coverture laws; laws that placed women, as well as all their property, in the ownership of the husband. The woman became invisible to the law, existing only as a part of her husband and without individual rights. The husband was the family’s political leader, economic chief, and domestic ruler (justice for all 80). Marriage laws granted men with status by limiting the rights of their wives, disenfranchising women in order to perpetuate male-dominance of the legal sphere. A congressional statute in 1855 explicitly stated that, “by the act of marriage itself the political character of the wife shall at once conform to the political character of the husband” (someone in justice for all 82). This extended beyond simply the right to vote (which women would not receive for another sixty-five years) into the realm of citizenship. The act of 1855 made it possible for the foreign wives of American men to become automatically citizens by marriage (provided they fit the racial prerequisites of standard immigration) without giving the same rights to the husbands of American women. While this new law deepened the legal disparity between men and women by giving men new rights, it did not actually revoke any of the rights women currently possessed (justice for all 81). That particular step was taken in 1907, when congress passed another statute declaring that American women would loose their citizenship if they married a foreign man (justice for all 87). With the act of 1907, women not only had no individual legal representation – marriage would essentially forcibly remove them from the nation of their birth and origin. The act further enforced the feudalistic hierarchy of married relationships: women owed her fealty to her husband’s authority, who in turn gave his allegiance to a nation. Citizens are essential to the functioning of a nation – without a populous to govern, a government is worthless – and so it is in any government’s best interest to amass citizens. The acts of 1855 and 1907 clearly indicated that women were so low in the legal chain as to be expendable to such a goal. The laws which governed married women, stripping them of or barring them from the rights of married men, maintained concepts of male dominance and superiority by denying women those rights.

The same laws of 1855 and 1907 which subjected women to legal disadvantages went even further to have ramifications in social roles. Tying women so strongly to their husband’s political entity reduced them to limpets clinging to their male supporters. By making women legally subservient to men, marriage laws gave legitimacy to social norms of women’s inferiority and perpetuated the inequality of gender roles.

The statute of 1855 elevated the status of men by allowing them privileges not granted to women, indicating favor through special treatment. The statute of 1907 made that special treatment stand out even more by actively taking away women’s rights and widening the ever growing chasm gender inequality. Professor Cott summarized by saying, “the [1855 statute] underlined male headship of the marital couple (and therefore of the family and household) as a political norm as well as a social norm,” (justice for all 81). Women were devalued and absorbed into their husbands to lend legitimacy to male social status. Even today the vestiges of such social standards can be seen: when women are married they often take the husband’s name, the family is addressed by the full name of the husband, and only women change their honorific (Mrs. or Ms.) to denote their marital status. The effect of reducing women’s legal rights to lesser entities than men sent ripples of effect through the social fabric that paralleled the male domination of law.

Racial Prejudice and White Supremacy: the Effects of Miscegenation Laws on Race Relations

The history of anti-miscegenation laws in America spans several centuries, beginning sometime in the seventeenth century and only ending finally in the 1960s (Pascoe 49). Miscegenation laws took a different tactic than gender-specific marriage restrictions, focusing on the supposed biological disparity between the races. Marriage laws enforced white supremacy by reinforcing the misconception of innate biological difference of races and making African-American an inferior race. During the early and mid-1900s, ‘racial prerequisite’ cases like Kirby v. Kirby or Estate of Monks were common to determine the biological race of citizens and thus the validity of their marriage. In the Monks case, Marie Antoinette Monks was determined to be “of mixed blood from looking at the size of the moons of her fingernails, the color of the ‘ring’ around the palms of her hands, and the ‘kink’ in her hair,” and thus ineligible for marriage to her Caucasian husband (who’s death may have been by her hands, though the courts were more interested in her racial status) (Pascoe 56). Miscegenation laws broke race into biological components, and assigned values to those components. The ‘negro’ race was clearly inferior, posing the threat of “a mongrel breed of citizens” (the case 158) to the purity of American heritage. Anti-miscegenation laws claimed that “an amalgamation of the races is...unnatural,’ yielding offspring who are “generally sickly and effeminate, and...inferior in physical development and strength” (the case 155) as a rationale for separating the races. Mixing physical features like race into the letter of the law reinforced the sort of racial prejudice that led to the 3/5^th compromise in the previous century. According to courts at the time, “We find there is no requirement that the state shall not legislate to prevent the obliteration of racial pride, but must prevent the corruption of blood even though it weaken or destroy the quality of its citizenship” (the case 158). Because of biological factors, certain groups were inferior in both rights and biology. In this case, the inferior blood was that of African-Americans; by referring to interracial mixings as ‘corrupt’ or ‘mongrel’, marriage laws reinforced racial prejudices and claimed rational basis for the legal exaltation of white Americans.

The correlation between a legal hierarchy of race-values and societal values does not require a vast mental leap. The marriage laws created physical space between the races as well as societal ones. According to a juror of the time, “the law was made to preserve the distinction which should exist between our two kinds of population, and to protect the whites in the possession of their superiority” (the case 155). Nothing can be clearer than the phrase ‘to protect the whites in the possession of their superiority’. Marriage laws allowed for the perpetuation of social segregation by defining races as incompatible in the most blatant of terms. Another common argument was that “African Americans were genetically inferior” (the case 155). Degradation in the legal system legitimized social discrimination. Who could argue that the Klu Klux Klan were acting immorally if the Supreme Court agreed with their basic message of white supremacy? Social intolerance was bolstered and encouraged by the value judgments made about race in marital law.

Stigma and Second Class Citizens: the Effects of Marriage Inequality on Same-Sex Couples

The landmark case Loving v. Virginia established the freedom to marry as one of the fundamental rights of American citizens, on par with the rights to Life, Liberty, and the pursuit of Happiness. Fundamental rights are rights so deeply entwined with the human soul that to separate the two would render both halves useless; many of these rights appear in the Bill of Rights, and several more have been added since through constitutional amendments. The Declaration of Independence itself states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights” (constitution). Fundamental rights, then, are rights no man, woman, or child should be with out. But if all citizens of the United States, regardless of race, gender, or religion are supposedly granted this right, what happens to the group that is not given such access? By actively excluding same-sex couples from the fundamental right to marriage, marriage laws reduce same-sex couples to second class citizens.