Committed: A Sceptic Makes Peace With Marriage (10 page)

If there is one word, by the way, that triggers all the inherent terrors I have ever felt about the institution of marriage, it is
coverture.
This is exactly what the dancer Isadora Duncan was talking about when she wrote that "any intelligent woman who reads the marriage contract and then goes into it deserves all the consequences."

My aversion is not entirely irrational either. The legacy of coverture lingered in Western civilization for many more centuries than it ought to have, clinging to life in the margins of dusty old law books, and always linked to conservative assumptions about the proper role of a wife. It wasn't until the year 1975, for instance, that the married women of Connecticut--including my own mother--were legally allowed to take out loans or open checking accounts without the written permission of their husbands. It wasn't until 1984 that the state of New York overturned an ugly legal notion called "the marital rape exemption," which had previously permitted a man to do anything he liked sexually to his wife, no matter how violent or coercive, since her body belonged to him--since, in effect, she
was
him.

There's one particular example of coverture's legacy which--given my circumstances--touches me most of all. The fact is, I was lucky that the United States government was even considering allowing me to marry Felipe without forcing me to renounce my own nationality in the process. In 1907, a law was passed by the United States Congress stating that any natural-born American woman who married a foreign-born man would have to surrender her American citizenship upon her marriage and automatically become a citizen of her husband's nation--whether she wanted to or not. Though the courts conceded that this was unpleasant, they maintained for many years that it was necessary. As the Supreme Court ruled on the matter, if you were to permit an American woman to keep her own nationality at the moment of marriage to a foreigner, you would essentially be allowing the wife's citizenship to trump the husband's citizenship. In so doing, you would be suggesting that the woman was in possession of something that rendered her superior to her husband--
in even one small regard--
and this was obviously unconscionable, as one American judge explained, since it undermined "the ancient principle" of the marital contract, which existed in order "to merge their identity (man and wife) and give dominance to the husband." (Strictly speaking, of course, that's not a merger; that's a takeover. But you get the point.)

Needless to say, the law did not hold the reverse to be true. If a natural-born American man married a foreign-born woman, the husband was certainly allowed to keep his citizenship, and his bride (covered by him, after all) would certainly be allowed to become an American citizen herself--that is, so long as she met the official naturalization requirements for foreign-born wives (which is to say, so long as she was not a Negro, a mulatto, a member of "the Malay race," or any other kind of creature that the United States of America expressly deemed undesirable).

This brings us to another subject I find disturbing about matrimony's legacy: the racism that one encounters all over marriage law--even in very recent American history. One of the more sinister characters in the American matrimonial saga was a fellow named Paul Popenoe, an avocado farmer from California who opened a eugenics clinic in Los Angeles in the 1930s called "The Human Betterment Foundation." Inspired by his attempts to cultivate better avocados, he devoted his clinic to the work of cultivating better (read: whiter) Americans. Popenoe was concerned that white women--who had lately started attending college and delaying marriage--weren't breeding quickly or copiously enough, while all the wrong-colored people were breeding in dangerous numbers. He also nursed deep concerns about marriage and breeding among the "unfit," and so his clinic's first priority was to sterilize all those whom Popenoe judged unworthy to reproduce. If any of this sounds distressingly familiar, it's only because the Nazis were impressed by Popenoe's work, which they quoted often in their own writings. Indeed, the Nazis really ran with his ideas. While Germany eventually sterilized over 400,000 people, American states--following Popenoe's programs--managed to get only about 60,000 citizens sterilized.

It's also chilling to learn that Popenoe used his clinic as the base from which to launch the very first marriage-counseling center in America. The intention of this counseling center was to encourage marriage and breeding among "fit" couples (white, Protestant couples of northern European descent). More chilling still is the fact that Popenoe, the father of American eugenics, also went on to launch the famous
Ladies' Home Journal
column "Can This Marriage Be Saved?" His intention with the advice column was identical to that of the counseling center: to keep all those white American couples together so they could produce more white American babies.

But racial discrimination has always shaped marriage in America. Slaves in the antebellum South, not surprisingly, were never allowed to marry. The argument against slaves' marrying, simply put, was this:
It's impossible.
Marriage in Western society is supposed to be a contract based on mutual consent, and a slave--by very definition--does not possess his own consent. His every move is controlled by his master and therefore he cannot willfully enter into any contract with another human being. To allow a slave to enter into a consensual marriage, then, would be to assume that a slave can make even one small promise of his own, and this is obviously impossible. Therefore, slaves could not marry. A tidy line of reasoning, this argument (and the brutal policies that enforced it) effectively destroyed the institution of marriage within the African American community for generations to come--a disgraceful legacy that haunts society to this day.

Then there is the question of interracial marriage, which was illegal in the United States until fairly recently. For most of American history, falling in love with a person of the wrong color could land you in jail, or worse. All this changed in 1967, with the case of a rural Virginia couple named--poetically enough--the Lovings. Richard Loving was white; his wife, Mildred--whom he had adored since he was seventeen years old--was black. When they decided to marry in 1958, interracial unions were still illegal in the Commonwealth of Virginia as well as in fifteen other American states. So the young couple sealed their vows in Washington, D.C., instead. But when they returned home after their honeymoon, they were swiftly apprehended by local police, who broke into the Lovings' bedroom in the middle of the night and arrested them. (The police had hoped to find the couple having sex, so they could also charge them with the crime of interracial intercourse, but no luck; the Lovings were only sleeping.) Still, the fact that they had married each other at all rendered the couple guilty enough to haul off to jail. Richard and Mildred petitioned the courts for the right to uphold their District of Columbia marriage, but a Virginia state judge struck down their wedding vows, helpfully explaining in his ruling that "Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. The fact that He separated the races shows that He did not intend for the races to mix."

Good to know.

The Lovings moved to Washington, D.C., with the understanding that if they ever again returned to Virginia, they would face a jail sentence. Their story might have ended there, but for a letter that Mildred wrote to the NAACP in 1963, asking if the organization might help find a way for the couple to return home to Virginia, even if only for a short visit. "We know we can't live there," Mrs. Loving wrote with a devastating humility, "but we would like to go back once and awhile to visit our families & friends."

A pair of civil rights lawyers from the ACLU took on the case, which finally made its way to the U.S. Supreme Court in 1967, where the justices--upon reviewing the story--unanimously begged to differ with the idea that modern civil law should be based on biblical exegesis. (To its everlasting credit, the Roman Catholic Church itself had issued a public statement only a few months earlier, expressing its unqualified support for interracial marriage.) The Supreme Court sealed the legality of Richard and Mildred's union in a 9-0 ruling, and with this ringing statement: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

At the time, I must also mention, a poll showed that 70 percent of Americans vehemently opposed this ruling. Let me repeat that: In recent American history,
seven out of ten
Americans still believed that it should be a criminal offense for people of different races to marry each other. But the courts were morally ahead of the general population on this matter. The last racial barriers were removed from the canon of American matrimonial law, and life went on, and everyone got used to the new reality, and the institution of marriage did not collapse for having had its boundaries adjusted just that tiny bit wider. And although there still may be people out there who believe that the intermingling of races is abhorrent, you would have to be an extreme fringe racist lunatic these days to seriously suggest aloud that consenting adults of different ethnic backgrounds should be excluded from legal matrimony. Moreover, there is not a single politician in this country who could ever win election to high office again by running on such a contemptible platform.

We have moved on, in other words.

You see where I'm heading with this, right?

Or rather, you see where
history
is heading with this?

What I mean to say is: You won't be surprised, will you, if I now take a few moments to discuss the subject of same-sex marriage? Please understand that I realize people have strong feelings on this topic. Then-congressman James M. Talent of Missouri undoubtedly spoke for many when he said in 1996, "It is an act of hubris to believe that marriage can be infinitely malleable, that it can be pushed and pulled around like Silly Putty without destroying its essential stability and what it means to our society."

The problem with that argument, though, is that the only thing marriage has ever done, historically and definitionally speaking, is to change. Marriage in the Western world changes with every century, adjusting itself constantly around new social standards and new notions of fairness. The Silly Putty-like malleability of the institution, in fact, is the only reason we still have the thing at all. Very few people--Mr. Talent included, I'll wager--would accept marriage on its thirteenth-century terms. Marriage survives, in other words, precisely because it evolves. (Though I suppose this would not be a very persuasive argument to those who probably also don't believe in evolution.)

In the spirit of full disclosure, I should make clear here that I'm a supporter of same-sex marriage. Of course I would be; I'm precisely that sort of person. The reason I bring up this topic at all is that it irritates me immensely to know that I have access, through the act of marriage, to certain critical social privileges that a large number of my friends and fellow taxpayers do not have. It irritates me even more to know that if Felipe and I had happened to be a same-sex couple, we would have been in
really
big trouble after that incident at the Dallas/ Fort Worth Airport. The Homeland Security Department would have taken one look at our relationship and thrown my partner out of the country forever, with no hope of future parole through marriage. Strictly on account of my heterosexual credentials, then, I am allowed to secure Felipe an American passport. Put in such terms, my upcoming marriage starts to look something like a membership at an exclusive country club--a means of offering me valuable amenities that are denied to my equally worthy neighbors. That sort of discrimination will never sit well with me, only adding to the natural suspicion I already feel toward this institution.

Even so, I'm hesitant to discuss in much detail the specifics of this particular social debate, if only because gay marriage is such a hot issue that it's almost too early to be publishing books about it yet. Two weeks before I sat down to write this paragraph, same-sex marriage was legalized in the state of Connecticut. A week after that, it was declared illegal in the state of California. While I was editing this paragraph a few months later, all hell broke loose in Iowa and Vermont. Not long after that, New Hampshire became the sixth state to make same-sex marriage legal, and I'm beginning to believe that whatever I declare today about the gay marriage debate in America will most likely be obsolete by next Tuesday afternoon.

What I can say about this subject, though, is that legalized same-sex marriage is coming to America. In large part this is because
non-
legalized same-sex marriage is already here. Same-sex couples already live together openly these days, whether their relationships have been officially sanctioned by their states or not. Same-sex couples are raising children together, paying taxes together, building homes together, running businesses together, creating wealth together, and even getting divorced from each other. All these already existing relationships and social responsibilities must be managed and organized through rule of law in order to keep civil society running smoothly. (This is why the 2010 U.S. Census will be documenting same-sex couples as "married" for the first time in order to chart clearly the actual demographics of the nation.) The federal courts will eventually get fed up, just as they did with interracial marriage, and decide that it's far easier to let all consenting adults have access to matrimony than it is to sort out the issue state by state, amendment by amendment, sheriff by sheriff, personal prejudice by personal prejudice.