Reading Jason Kuznicki and D.A. Ridgely’s recent posts about marriage made me curious about the historical developments in the American legal understanding of marriage. Kuznicki:
Ultimately, I’d like civil marriage simply to be a form of contract, combined with some clear, legally binding advance directives about property and family affairs. Such an arrangement would have no room at all for gender, and thus same-sex marriage contracts would be accepted as a matter of course. But that’s not what marriage really is, whether for gays or straights. That’s one thing this whole debate has brought to light.
So, for example, I have harped fairly consistently that the notion of marriage as status, derived as so much of contemporary western culture does from feudal society, is a remnant of that feudalism and should be replaced with the notion of marriage as contract. (In a nutshell, a legal status differs from the private legal relationship arising by contract in that, typically, the parties involved cannot rescind or revise the legal relationship except, if at all, with state permission. Citizenship is a status. Unfortunately, so occasionally and for some purposes are what the Supreme Court has sometimes called the suspect classifications of race and, increasingly, gender. It’s a complicated topic better left for now to a more full discussion elsewhere.)
But replacing status marriage with contract marriage, regardless of its historical baggage, need not and should not change the legal status of parent and child as a general and sociologically normative rule.
I would argue that the crisis and inevitable triumph of homosexual marriage is sufficient proof that marriage is not a status in American legal theory, but a contract. While a contractual understanding was solidified in the 1960s with the advent of no-fault divorce laws, the transition away from ‘status’ began much earlier. From Michael Grossberg’s excellent Governing the Hearth:
The definition of marriage as a civil contract had deep roots in English legal tradition and colonial practice. The legacy of colonial legislation and custom, with its blend of Calvinism, Anglicanism, and English ecclesiastical law, remained important because it constituted the major statutory and judicial record for nineteenth-century lawyers. Though differing in many essentials, these sources emphasized the secular, contractual nature of matrimony while at the same time endorsing strict public nuptial vigilance. In most of the colonies communal had replaced ecclesiastical control, and the mutuality of the matrimonial pact was accepted. But while the effectiveness of community supervision waned with time, colonial law, like its English parent, highlighted the civil or public nature of the marriage pact.
Post-Revolutionary views of matrimony evolved from, and reacted against, this heritage. Though the law continued to portray marriage as a civil contract, in a vital transition the accent shifted from the first word to the second. The new emphasis was on the consensual nature of marriage. It also reflected the broader use of contract as the central metaphor for social and economic relations in nineteenth-century America. This occurred as part of the revolutionary change marked by “the gradual displacement of patriarchalism by contractualism.” Contractualism gained strength from the same forces that were eroding the hierarchical conception of society. Rather than viewing the body politic as an amalgam of interdependent, status-defined groups, contract ideology stemmed from a world view whose lode star was the untrammeled autonomy of the individual will. Relations of all kinds were to be governed by the intentions, not the ascribed status, of their makers. The English philosopher Sir Henry Maine characterized this transition as the “movement from status to contract.”
In resisting homosexual marriage, conservatives are (rightly) resisting a development the seeds for which were sewn hundreds of years ago in John Locke and his atomistic and individualistic anthropology. Ridgely and Kuznicki have good reason to be optimistic: the philosophical foundation for homosexual marriage is so deeply embedded in even Christian’s minds that it’s nearly impossible to conceive of grounds upon which our secular culture might reject it.