The Dual Effect of Marriage in Society and Law
Marriage is an institution deeply ingrained in the American psyche; socially as well as legally, marriage is an everyday fixture of American life: there has been only one president who was never married; honorific titles (e.g. Mrs. or Ms.) are determined by marriage; almost every legal document requires information about marital status. Marriage also affects medical benefits, taxes, loans, and more. While marriage carries its own responsibility, it cannot be denied that the reordering of rights that also accompanies it is greatly beneficial to those it encompasses. The social and emotional impact of marriage is harder to quantify, but it is often a favored status. 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 elevated status. 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. As an agent of both legal and societal policy, marriage has a hand in deciding the rights as well as the roles of the American people and their relationships. 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 elements. 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 Cox 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; marriage is an affirmation of intimacy and affection, as well as membership to a privileged class. 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. This effects both the civil and civic standing of each citizen. 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 color 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 twentieth, women were bound in marriage by ‘coverture laws’ – laws that placed wives, property and all, in the ownership of their husbands. The wife 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 (Cott, “Justice” 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. This extended beyond simply the right to vote (which women would not receive for another sixty-five years) into the realm of citizenship. A congressional statute in 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. The statute 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” (Cott, “Justice” 82). 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 (Cott, “Justice” 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 (Cott, “Justice” 87). With the act of 1907, women not only had no individual legal representation – marriage could now 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. The acts of 1855 and 1907 clearly indicated that women were so low in the legal chain as to be expendable to the American nation. 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 of 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,” (Cott, “Justice” 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 law 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 Monksan amalgamation of the races is...unnatural,’ yielding offspring who are “generally sickly and effeminate, and...inferior in physical development and strength” (Eskridge, “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 3/5th 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” (Eskridge, “The Case” 158). Because of supposedly biological 
factors, certain groups were considered inferior in both rights and biology. In the case of miscegenation laws, 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 preference for white Americans.
The correlation between a legal hierarchy of race-values and societal values does not require a vast mental leap. Miscegenation laws created physical space between the races as well as a societal divide. 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” (Eskridge, “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 placing one race above another in the most blatant of terms. 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.
Stigmatization and Second Class Citizenship: the Effects of Marriage Inequality on Same-Sex Couples
The concept of fundamental rights is one so essential to American law that its existence preceded even the Constitution upon which all other legal rights are founded. The Declaration of Independence, written almost ten years before the Constitution was first drafted, 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” (“The Declaration”). Fundamental rights, then, are rights that no man, woman, or child should be with out. Some of the more commonly known of these are the rights to Life, Liberty, and the Pursuit of Happiness. The right to marriage joined those ranks in 1967, when the case Loving v. Virginia established the fundamental nature of marriage. 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? Same-sex couples today are still facing this injustice, with laws like the Defense of Marriage Act (DOMA) and Proposition 8, depriving them of access to rights supposedly guaranteed to all citizens. What happens to a citizen’s status when a right meant to apply to all citizens specifically is withheld from them? Gabrielle Kozik, in her essay on the legal implications of marriage laws, called marriage “the crux of citizenship”, a necessary status of legitimizing oneself as both a partner in a commited relationship and a full citizen of America (Kozik). By actively excluding same-sex couples from their fundamental rights, marriage laws keep same-sex couples from achieving that legitimization, reducing them to the status of inferior or second class citizens. According to a study conducted by the General Accounting Office in 2004, “Same-sex partners are not eligible for 1,138 federal protections and benefits available to married couples, including Social security survivor benefits, Medicaid spend-down protections, and worker's compensation” (General Accounting Office in Alain). Even with the Civil Unions and Domestic Partnerships available in some states as a replacement for marriage, there is not equality; separate is never equal. By restricting same-sex couples’ access to a fundamental right, those relationships are reduced to the legal status of second class citizens and the heterosexual standard is upheld.
The denial of fundamental rights in the legal sense has serious ramifications for the social value of a group of people. By restricting them from basic human rights, an unspoken judgment is made about that group’s worth as human beings: if same-sex couples are denied the rights available indiscriminately to every race, creed, and color of heterosexuals, they must be inferior to every race, creed, and color of heterosexuals. Same-sex couples are stigmatized by this tacit oppression, and their devaluation bolsters the status of heterosexuality. Judge Richard Posner gave breath to this concept, worrying that “recognizing same-sex relationships as 
marriage would be problematic… because it would ‘be widely interpreted as placing a stamp of approval on homosexuality’” (Eskridge, “Sexuality” 805). Clearly the laws governing marriage have a deep impact on the social groups they are involved with, leading to this fear that legal equality will lead to a change in the social status quo. Just as the ban against interracial marriage reinforced both the separation and subjugation of African-Americans, so the ban on same-sex marriages reinforces the superiority of heterosexuality by implying a hierarchical value (Cott, “Public Vows” 216). Brown v. Board of Education, the landmark case that overturned the concept of ‘separate but equal’ in 1954, determined that “separating individuals from others solely because of their minority status ‘generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way likely ever to be undone’” (Perry v. Schwarzenegger 5). By denying same-sex couples the basic human rights given to heterosexuals, marriage laws idealize heterosexuality by stigmatizing homosexuality.
Marriage as an institution is rooted deep in the American persona. In both the legal and the social realm, marriage has great influence. This dual nature makes every marriage law doubly powerful, resulting in both legal and social repercussions for each individual law. These laws can be beneficial to some, but often at the cost of another group’s right. Some of the groups who have historically been deprived of rights in this manner have been African-Americans, women, and same-sex couples. Each group experienced the restrictions of marital law in different ways, but the effect was always the same: discrimination against them was institutionalized, and their degradation was the price for another group’s greater rights. Their value, both socially and legally, was the trade for the exalted status of whatever group America deemed more valuable. Every law determined the legal rights and the social standing of the underprivileged group, simultaneously using their reduction to lend worth to other groups. With its ramifications in both the legal and social spheres, marriage law determined the worth of each citizen – often at the expense of another.
Works Cited
Alain Dang, and M Somjen Frazer. "Black Same-Sex Couple Households in the 2000 U.S. Census: Implications in the Debate Over Same-Sex Marriage." Western Journal of Black Studies 29.1 (2005): 521-526. Multicultural Module, ProQuest. Web. 4 Dec. 2010.
Asher, Cristian. "Arnold Schwarzenegger … LGBT Hero?" Change.org. Change.org, 6 Aug. 2010. Web. 8 Dec. 2010.
Cott, Nancy F. "Justice for All? Marriage and Deprivation of Citizenship in the United States." Justice and Injustice in Law and Legal Theory. Ann Arbor: University of Michigan, 1998. Print.
Cott, Nancy F. Public Vows: a History of Marriage and the Nation. Cambridge, MA: Harvard UP, 2000. Print.
Cox, Barbara J. "A Painful Process of Waiting." California Western Law Review 45 (2008): 140-78. Print.
Eskridge, William N. The Case for Same-sex Marriage: from Sexual Liberty to Civilized Commitment. New York: Free, 1996. Print.
Eskridge, William N., and Nan D. Hunter. Sexuality, Gender, and the Law. Westbury, NY: Foundation, 1997. Print.
Kozik, Gabrielle. "The Direct Relationship Between the Legal Definition of Marriage and Effective Citizenship." Web log post. Gabber! 11 Dec. 2010. Web. 12 Dec. 2010.
Pascoe, Peggy. "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America." The Journal of American History 83 (1996): 44-68. Print.
Perry v. Schwarzenegger. United States District Court for the Northern District of California. 25 Oct. 2010. The United States Court of Appeals for the Ninth Circuit. Administrative Office of the U.S. Courts. Web. 5 Dec. 2010.
"Schwarzenegger Will Veto Gay Marriage Bill." MSNBC Politics. MSNBC, 7 Sept. 2005. Web. 8 Dec. 2010.
"The Declaration of Independence." Ushistory.org. Independence Hall Association. Web. 08 Dec. 2010.
"The Gettysburg Address by Abraham Lincoln." Abraham Lincoln Online. Web. 08 Dec. 2010.
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And here's an extra paragraph that matches exactly 0% of the rest of my paper, but I like it so might as well.
Law as a Social Construction and Constructor
The American government is an institution made to be both comprised of and representative of the countries populace. As Abraham Lincoln said in his 1863 Gettysburg Address, it is a system “of the people, by the people, for the people” (“The Gettysburg”). As part of this citizen-based federal system, the laws of the nation are thus both reflective of and influential to the views of the people. Marriage, with its dual authority in law and society, Law can be both a manifestation of prejudice, in which case it perpetuates that prejudice, or a tool for changing that prejudice; law is both a social construct and a social constructor. When society constructs the law, those laws reinforce the status quo or reaffirm the majority sentiment before taking new ethical concepts into account. Hernandez v. Robles, Anderson v. King County, and Conaway v. Deane were all marriage equality cases heard in the late 2000s, considerably after Massachusetts became the first state to give equal marriage access to same-sex couples. The ideas that marriage segregation was unconstitutional and that equal marriage was possible had clearly entered the mainstream, but the three cases (and many others since) chose to uphold old values. Californian Governor Arnold Schwarzenegger, a republican who believes in marriage equality (Asher), demonstrated the way the populous constructs laws in 2005 when he vetoed an equal marriage law against his own morals but “out of respect for the will of the people” – who had previously passed Proposition 22, which refused to acknowledge same-sex marriages even if performed outside of California (“Schwarzenegger”). When law acts as a constructor to society, however, those laws give preference to changing moral concepts over the status quo. Professor William Eskridge explains in his book The Case for Same-Sex Marriage, “many arrangements accepted as natural by the founding generation of our society are constitutionally unacceptable in today’s world” (160) and it is the laws that act as social constructors that lead to the changing of these ‘unacceptable arrangements’. Before Loving v. Virginia, “96% of Americans were opposed to interracial couples’ marriages” (Cox 153); the decision in Loving, however, chose to accept new concepts of racial equality and make an active effort to change the status quo. Today, the involvement of race in the comparing of two people or two rights is strictly taboo. When laws act as social constructors, they have the power to change the historic prejudices and misconceptions; when they are themselves constructed, they uphold mainstream values and intolerance.
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