Originally Published: 12/3/2008
By The Issue Wonk
With all the battles going on over same-sex marriage, I got curious. What is the history of regulating marriage? Why and when did it begin? What is the purpose of regulating it? What I found was surprising.
According to Wikipedia, marriage is a social, religious, spiritual, or legal union of individuals. The union may be called “matri-mony,” and there may or may not be a ceremony called a “wedding.” Marriage, as an institution, may be acknowledged by a government or a religious authority. It is often viewed as a contract. If a marriage is acknowledged to be in accordance with laws by a government entity, it is known as a “civil marriage.” If a marriage is acknowledged only by a religious authority and does not conform to government laws, it is known as a “religious marriage.” [Emphasis added.]
Marriage ceremonies may be performed by a religious person or by a secular person. The practice varies from country to country. In some countries the secular and the religious officiates may be the same person, entailing just one ceremony. In some countries the two are separate, requiring 2 ceremonies.
In the early days of civilization, marriage was sporadic, with some societies having rules and some not; some religions having rules and some not. However, there was no government in-volvement in marriage. In the Middle Ages the Christian Church (now the Roman Catholic Church) became the first formal registrar for marriages. However, such registration was not mandatory. Any marriage issues (e.g., divorce) were adjudicated by religious courts.
During the Protestant Reformation in the 1500s, John Calvin “reformulated” Christian marriage by enacting the Marriage Ordinance of Geneva which required church consecration and state registration for a marriage to exist. Witte and Kingdon say:1
According to Calvin, God’s laws were useful for establishing civil norms (governing all people) and spiritual norms (teaching believers to attain holiness). The church was responsible for teaching spiritual norms while the state was responsible for enforcing civil norms. The Consistory, an institution related to the church, upheld spiritual norms by means of spiritual discipline: admonishment, ban from communion, and excommunication. “If such spiritual counsel failed, the parties were referred to the Small council to compel them, using civil and criminal sanctions, to honor at least their basic civil duties for marriage.”
As far as I could determine, this was the first governmental involvement in marriage. In England and Wales, the Marriage Act of 1753 required a formal ceremony to be performed by an Anglican priest, but did not apply to Jews or Quakers whose marriages continued to be governed by their own customs. In 1875 Germany permitted a civil marriage with an optional religious ceremony.
Many societies, either socially or legally, have placed restric-tions on who can be married. In almost all societies marriage between brothers and sisters is forbidden. Noted exceptions are the ancient Egyptian, Hawaiian, and Incan royalty. Some societies consider marriage between first cousins to be preferable, while others ban it completely. The medieval Christian Church banned marriages even between distant cousins.
In December 1948 the United Nations adopted the Universal Declaration of Human Rights. Article 16 declares:
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.
The Cairo Declaration on Human Rights in Islam, however, gives men and women the right to marriage regardless of race, color or nationality, but not religion.
Common Law Marriage
Common law marriage is a de facto state of marriage when there has been no religious or civil ceremony. For all civil pur-poses, a common law marriage is a real marriage. Most jurisdictions impose some sort of a period of cohabitation before the common law marriage will be recognized. “The concept of common law marriage is mostly historical – most states no longer recognize new common law marriages, and the number of those that do is dwindling.”2
The Colonies. In the New World there were no laws regulating marriage. No license, witnesses, ceremonies or even a magistrate were required, although most had some regulation of the age at which couples could marry. Even as late as 1930, “12 states allowed boys as young as 14 and girls as young as 12 to marry (with parental consent).”3 Some couples, of course, got the blessings of their church, but common law marriages were, uh, common. “Whatever religious significance they attributed to marriage, all the colonies recognized it as a civil contract based on mutual consent of both parties.”4 [Emphasis added.] In 1843 an Indiana marriage law stated, “No particular form of ceremony shall be necessary, except that the parties shall declare . . . that they take each other as husband and wife.”5 However, many of the colonies did require that the marriages be registered.6
The only exception I found to this was in Virginia/West Virginia where there were many marriage laws in the 1600s. However, they were all religious-based. For example, marriages had to be performed by a licensed minister of the Church of England to be accepted as legal.7 But, by the late 1600s there was wide-spread use of licenses, which many historians believe were enacted in order to replace the use of banns, which are public announcements made in a church to notify people of the impending marriage.4 With the passing of the U.S. Constitution and, ultimately, the Bill of Rights, separating church and state, these laws were nullified and many were removed.
Miscegenation Laws. It appears that the first widespread use of marriage laws began in 1661 in Maryland8 (Pascoe9 says it was 1664) where they enacted miscegenation laws, forbidding the marriage between a black man and a white woman. Similar legislation was passed in Virginia (1691), Massachusetts (1705), North Carolina (1715), South Carolina (1717), Delaware (1721), and Pennsylvania (1725).8 “By the 1920s, 38 states prohibited whites from marrying blacks, ‘mulattos,’ Japanese, Chinese, American Indians, ‘Mongolians,’ ‘Malays’ or Filipinos.”8 But it wasn’t until 1967 (yes, really) that the U.S. Supreme Court in Loving v. Virginia struck down state anti-miscegenation laws. “As a result of the decision, Virginia and 15 other states had their anti-miscegenation laws declared unconstitutional. Those states were: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia.”3
Blood Tests. In the 1930s and 1940s states began to require blood tests in order for couples to marry, either for syphilis or rubella (German measles) or both. Some states screened for tuberculosis and gonorrhea. The stated reason, of course, was to detect contagious diseases and keep them from spreading. More recently some states attempted to test for HIV/AIDS, but those laws “did not last long at least in part because of very low detection rates.”10 As of May 2002, only 7 states, plus the District of Columbia, still required blood states. These are: Connecticut, Georgia, Indiana, Massachusetts, Mississippi, Montana, and Oklahoma.10
Other Laws. Other than miscegenation laws, there were various marriage laws instituted throughout the years. 12 states would not issue a marriage license if one partner was a drunk, an addict, or a “mental defect.” 18 states set barriers to remarriage after divorce.6 Crossen5 tells us that, by the mid-1800s,
30 states prohibited people with physical or mental disabilities – epileptics or the “feeble-minded, idiotic, imbecilic or insane” – from marrying. (In many states, women over 45 were exempted from this rule.) 4 states disqualified paupers or inmates in public institutions for the indigent. Washington and North Dakota didn’t issue marriage licenses to people suffering from advanced tuberculosis.
Turning Back the Laws: Massachusetts was the first to get rid of its miscegenation law. “[A] remarkable group of radical abolitionists went out on a limb to argue that the Massachusetts miscegenation law contradicted the fundamental American principle of civil equality. For more than a decade, abolitionists urged the Massachusetts state legislature to repeal the law; finally, in 1843, they succeeded.”9 “By the mid-1900s, most states had gotten out of the business of deciding which couples were ‘fit’ to marry. Courts invalidated laws against interracial marriage, struck down other barriers, and even extended marriage rights to prisoners.”6 As noted above, all but 7 states and the District of Columbia, have abandoned blood tests. The only laws that appear to still be in effect, as in our earliest days, are age requirements.
Why A Marriage License?
So, originally marriage was only “registered.” Miscegenation laws were the first attempt at regulating who can marry. These were later followed by laws against the “unfit” and eventually those who were ill. With the exception of the few areas that still require blood tests, all of these have been eliminated. So, why do we still require a marriage license?
I want you to think about this. Before Americans can get married they have to get permission from the government, even though marriage is universally considered to be a human right. Think about that. It’s not that you are required to register your marriage – like you register the birth of your children or the death of your parents. You have to get permission. If the government doesn’t think you should be married, you can’t get married.
According to Wikipedia:
Black’s Law Dictionary defines “license” as, “The permission by competent authority to do an act which without such permission . . . would be illegal.” The authority to license implies the power to prohibit. A license by definition “confers a privilege to do something. By allowing the state to exercise control over marriage, it is implied that we do not have a right to marry; marriage is a privilege. Those born in the U.S. receive a birth certificate, not a birth license. Most would object to a birth license, as it would imply that people must gain permission to be born. Following that same logic, many refuse to accept a marriage license and exercise their right to marry, without obtaining permission from the state.
Can’t we just do away with a marriage license? Couldn’t we simply go back to requiring registration if 2 people want to make their union official and, thus, have a record for future legal issues (e.g. divorce)? Other than the fact that the religious desirability of marriage has worked its way into our social fabric and, thus, our legal system, is there anything to stand in the way of such changes? Yes, other legal issues that are tied to that magic word “married.”
Distribution of Resources
Over the last 80 or so years marriage has been linked to the distribution of resources. The Social Security Act provides survivors’ benefits only for those who have “proof of marriage.”6
As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just 9 months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.
Possession or non-possession of a marriage license also deter-mines the “legal obligations a couple can keep – who gets hospital visitation rights, family leave, health care, and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.”6 Also, retirement benefits, medical decision-making, employee benefits, division of assets when a relationship ends, and tax levies “are just a few examples of laws granting ‘special rights’ based on marriage.”11
What this has resulted in is regulation of marriage in order to control the distribution of resources. Sound fair to you? Does it even sound familiar? Don’t you find it interesting that corporations and financial institutions have little regulation but people’s personal lives do?
1 Witte, John Jr. & Kingdon, Robert M. Sex, Marriage, and Family in John Calvin’s Geneva: Courtship, Engagement, and Marriage, Vol. 1. Eerdmans, 2005. (See Summary)
2 U.S. Constitution Online. Constitutional Topic: Marriage.
3 Peterson, Larry R. The History of Marriage as an Institution. PFLAG (Parents, Families and Friends of Lesbians and Gays), 1997.
4 Gormley, Myra Vanderpool. Colonial Love & Marriage. Genealogy Magazine, 1990, 2004.
5 Crossen, Cynthia. Déjà Vu. Wall Street Journal, February 25, 2004.
6 Coontz, Stephanie. Taking Marriage Private. International Herald Tribune, November 26, 2007.
7 Scouras, Susan. Early Marriage Laws in Virginia/West Virginia. West Virginia Archives & History News, Vol. V, No. 4. June, 2004.
8 Bryant, Linda Allen. Slavery and Miscegenation in America. West Ford Legacy, 2000.
9 Pascoe, Peggy. Why the Ugly Rhetoric Against Gay Marriage Is Familiar to this Historian of Miscegenation. History News Network, April 19, 2004.
10 Harvard Health Publications, Harvard Medical School. The Truth About Pre-Marital Blood Testing. Yahoo Health, February 17, 2006.
11 Polikoff, Nancy D. Marriage Isn’t the Half of It: Laws Should Grant the Same Rights to All of Today’s Families. Los Angeles Times, March 3, 2008.
© The Issue Wonk, 2008