Theophanes is a New-England-based blogger, traveler, writer, photographer, sculptor, and lover of cats.
Introduction to Modern American Marriage
Today in the United States marriage is generally defined as a willful union between two individuals, ideally based on love. Where did this standard come from? How many of us realize that marriage as we know it started as a form of human ownership? And what does that mean to marriage today? How has it evolved?
Marriage Enters the Legal World
Its hard to say where marriage is from and which ancient people invented it or why. What's easier to pinpoint is the origin of marriage within the law. This dates back to the ancient Greeks and Romans. Marriage then was not part of their religion, but it was part of their culture, and it wasn't based on love, it was based on men finding the most fertile wife to bear him sons. In this culture soldiers were openly encouraged to carry out love affairs with other men so they would fight harder for the cause and their lover's life. Even so a man without a wife was something to be avoided at all costs and was openly looked down upon to the point that the great lawmaker Solon contemplated making marriage compulsory. Why such urgency? It was really quite simple. All inheritances, property, and sometimes titles were passed down through the male line. Women could not hold property, vote, or own anything of significant monetary value. They were mostly confined to the home to be domestic goddesses and baby machines. In the unfortunate event that a woman lost her husband all the property and belongings would automatically go to any sons. If there were no sons it'd be given back to the man's father or closest male relative. This did not give any security to the poor woman involved. In fact emotional bonds were often held between men but these same men had no obligation to love or be affectionate towards their wives, only to ensure they had heirs. In fact it was still legal to beat, abuse, and even kill their wives and children and even to sell them into slavery should they feel the need to. It was a bleak time for woman. Even though men were openly having trysts with each other lesbianism was strictly forbidden leaving women with only two sexual options: marry a man she might not even know who may never love her, or become a prostitute. There was little gray area in between.
By the time the Roman Empire was at its end marriage was more fair towards women, though most marriages were still arranged by family for the social benefits, sometimes with groom and bride-to-be never meeting until the wedding day where they would marry and then almost immediately be forced to consummate the marriage. No longer were woman objects to be beaten, sold or killed, they were still expected to maintain perfect monogamy as their husbands regularly had affairs with men, prostitutes, and concubines. Still woman could own property now and perhaps because of this less and less of them were bothering with the whole marriage thing, a wave of feminism having finally rolled over the empire. Their emperor Augustus saw this decline in marriage and birth rates as a wholly negative thing and started enacting laws to lower taxes to married couples while making single people pay more. It was too late for that as divorce was now easy and obtainable for both men and women and single women were using various forms of birth control, taking reproductive power for themselves. The times were changing.
Marriage and Early Christianity
In Biblical times marriage was not as we see it today. Women were the property of men and they often had to share the household with other wives and concubines. The children that resulted were great fodder to marry into other families for political alliances. They were also useful as workers, especially in agricultural settings. Divorce was legal for men to obtain, if they found their wife "unclean" in some way, and stoning to death was the punishment for woman who had extramarital affairs. Again we see a concern for the virginity of new brides and the sexual ownership of her after she's entered into a marriage. Virginity and the sins of adultery never had anything to do with morality, more so it had everything to do with ownership and legal issues. What if a bastard child were to take the wrong man's name? Or inherit his property? It'd be an assault to his supposed father's honor.
As misogynistic as this system was it may have been instated partially to help women. Before marriage the father of a child had no legal or moral responsibility to help that woman or raise the child. This left many women in dire circumstances. Still these marriages were often arranged by family when the bride and groom were still in their early teens. Girls were considered marriageable any time after their first menstruation and were not given any choice in the matter, nor were they graced with the option of divorce. Worse still their husband's family had to be paid off with a dowry, a large sum of money or goods to ensure that she'd be taken care of.
Christian Marriage and the Middle Ages
Europe had its own traditions when it came to marriage and when the continent was converted to Catholicism these older pagan rituals blended well into the customs of the time. In Germanic tribes wedding rings were used to identify married women who were forced to wear them. In ancient times this may have been a way to mark captured women from opposing warring tribes who'd been forced to marry their conquerors. By medieval times the ring was part of the dowry, the only part given to the bride herself (not like she could do anything with it!) Men did not wear wedding rings. Eventually marriage was consigned only to willing parties, with the acceptance of the ring being the official agreement. Although forced marriages stopped, and polygamous marriages had long since gone extinct in any official capacity, the church was still working on tweaking the whole process. In the 12th century the Catholic Church started to describe marriage as a sacrament, something to do in order to get closer to God. However this wasn't an official view of the church until 1563. Of course if marriage is a sacrament, divorce was something that could no longer be tolerated and it soon become illegal. In fact the only way to obtain a divorce in these days was to have a very expensive legal trial in which one had to prove that they unknowingly married into their own family. This could result not in divorce in its truest sense but an annulment, where the annulled couples were free from each other but expected to live singly for the rest of their lives. At this time marriage went from being a rather informal occasion to being an event orchestrated by the church with a priest giving the ceremony outside the church doors. To ensure the marriage would last they started to ask the guests at the weddings to voice any concerns publicly to give the couple one last chance not to go through with it.
By the time the Protestant reformation came people's minds were changing. Protestants believed weddings should be orchestrated by a justice of the peace and that couples who were not suited to each other should be able to divorce freely. Unfortunately the legality of these beliefs were only valid for a short period of time before the Catholics once again restored an older legal system. However the Protestants were victorious in adding wedding vows to marriage ceremonies, a series of oaths and vows to treat each other with dignity and respect, something that until then wasn't really considered of particular importance. The vows lacked any legal authority but they were a step in the right direction.
In colonial America the people decided to abide by English laws. In 1769 marriage was defined as the ceasing of a woman having any legal or social standing in society separate from that of her husband. It wasn't until 1869 that American women finally were allowed to own their own property, be it obtained by them or inherited.
Marriage Licenses & Bigotry
Throughout most of Western history a couple only needed to tell people they were married in order for their community to believe them. Although divorce was illegal it was possible for a man and a woman to separate, move to a completely different part of the country with a new partner, and claim they were married. This gave them the opportunity to change for a new life but it came with risk. They would have to live their lives hoping no one from their former marriage would see them, recognize them, and report them for this fraud.
Colonial America had an answer to this - licenses. Now in order to prove a marriage had taken place a couple had to produce a certificate as proof. Although this was first practiced in the 1700's it wasn't mandatory until after the Civil War when not only the church but also the state was involved. In these days it was used as a tool of bigotry. Thirty-eight states decided that they'd use their marriage licenses to deny marriages to any white who wanted to marry outside their race, be their partner black, Asian, Native American, or mixed race. This was a long standing tradition starting in Virginia in 1691 where a law showed up on the books prohibiting a white from marrying a "person of color," meaning of any other ethnicity besides white. The punishment was banishment from the country (or to put it quite simply they'd be thrown into the woods and left to starve, unable to return to civilization.) By 1865 Mississippi had declared persons guilty of interracial marriage were to be condemned to life imprisonment. California was the first to declare laws ageist interracial marriages were unconstitutional in 1948. It wouldn't be until 1967 that the US Supreme Court agreed and this became a federal viewpoint.
More nobly the licenses were used to make sure the applicants were not fraudulent individuals, bigamists, or under the age of consent for their state. Today marriage licenses for one state can be denied in a different state in the same way common-law marriages (marriages of co-habitation with no certificate or ceremony) can also be denied. For a time this wasn't good news for gays and lesbians who married legally in one state before returning to their home in another. In 1999 Vermont found that under their constitution same-sex marriages should be viable. They started to allow Civil Unions, allowing gays and lesbians all the protections and rights of a heterosexual married couple but curiously not granting them an actual marriage license. Massachusetts became the first state to allow marriage licenses to gay and lesbian couples on May 17, 2004. Finally these states issues were resolved on June 26, 2015 when gays and lesbians were allowed to marry on the federal level. Marriage between more than two individuals at once, such as in cases of polygamy, polyamory, or bigamy, are still illegal in all states and age continues to be a contentious issue that is decided on a state by state basis with some states having no minimum age so long as the parents of the minors involved and a judge agree.
Marriages & Immigration Laws
It wasn't just licenses that were being used to prevent certain marriages it was the laws themselves. In 1875 Page Law ended the immigration of Asian women for the fear they may start families of their own, or worse yet, become prostitutes and lure in otherwise decent white men. This apparently was not enough of a deterrent as in 1917 the Immigration Act made it impossible for any Asian immigrant to come to the country, be they male or female. This act also banned, “Psychopaths, Inferiors, and ‘people with abnormal sexual instincts.” This means that until it was overturned in 1990 it was still illegal for gays and lesbians to legally immigrate to our country.
In 1920 the "ladies agreement" prevented the importation of Korean and Japanese mail-order brides. Even European women were denied entrance into the country unless they had proof that either a job or a man was waiting for them. Another attack on Asians was enforced in 1924 when it became illegal for Asian-Americans to import their wives and children.
In 1965 the Immigration Act finally made it legal for people of all nationalities to enter the country through accepted legal channels. It also made it easier for families to bring in their relatives. However this is only for heterosexual marriages and their nuclear families (parents, siblings, and children.)
Domestic Violence and Marriage
No matter which side of the issue you're on you have to admit that some marriages are bad for one or both parties involved. This has always been the case and in the United States it has been a far reaching issue that at times gets very fickle responses.
The battery of women and children has garnered much attention and awareness but not in all its forms. In fact the issue of marital rape has almost been a non-issue. The reasons for this go back to an older thinking, that a woman in effect belongs to her husband. In the 17th century Chief Justice Mathew Hale said, "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband which she cannot retract." In modern terms this means a wife cannot legally decline her husband's advances for any reason because she is in essence his to use as he wishes. As horrible as that was it made it into the American law system. Most states until fairly recently defined rape as, "Sexual intercourse with a woman not his wife without her consent." It wasn't until 1993 that marital rape became a crime in all fifty states. However there are still exemptions to prosecuting a man for marital rape in thirty-three states. Some of these exemptions include when a woman is mentally or physically unable to consent, when she is asleep, unconscious, etc. Women's rights activists are baffled by these laws. When should it ever be legal to have sex with an unconscious woman?! Surely by her being married doesn't change the fact she's unable to consent to sex or its consequences.
Domestic Violence was first seen in the law in the year 700BC. Ancient Romans at this time declared that once married a man had every right to beat his wife for any reason and to any degree he saw fit. In those days if a woman was found guilty a crime it would be her husband who would receive the punishment for it, so this law was used as a deterrent for women to get their husbands in legal trouble. This may have been the origin of the phrase "rule of thumb" as the switches used to beat these women were not supposed to be thicker than the man's thumb.
In the colonies women who were abused by their husbands had some help - by organizations that formed to protect abused women and animals. In the case of animals they could be seized and brought to the town's jail (which often also served as an animal shelter.) However in the case of women, since they were the property of their husbands, they could not be taken from the abusive situation. All they could do was try to talk sense into the husband and leave her where she was, probably to be beaten more severely for getting other people involved in their private affairs.
The United States didn't have any domestic violence laws on their books until 1882 when Maryland declared wife-beating a crime punishable by one year in prison or 40 lashes. North Carolina went in the opposite direction when in 1886 it declared a man can beat his wife all he wants so long as it doesn't cause permanent physical damage or fall under the category "malicious beyond all reasonable bounds." Similarly in 1911 the NY court deemed that domestic violence was not even a legal issue, that it was something to be settled by doctors and psychiatrists, often by only speaking to one spouse.
Although England and the rest of Europe were enacting domestic violence laws as early as 1829 the United States took its sweet time only passing a federal domestic violence legislation in 1994. This was the Violence Against Women Act that made hotlines, shelters, and other resources available to all women victims of domestic abuse. Although when it was initially passed it was almost universally supported it failed to be reinstated in 2012 when Republicans decided it should not include protections for lesbians, transgendered women, Native Americans, or illegal immigrants (which included women unwillingly sold into prostitution and shipped to the US without their consent.) Democrats argued these were often the groups who needed this bill's protections the most with far higher rates of domestic violence than other populations. The political posturing continued until the bill failed to be reinstated that year. It wouldn't be until 2013 when it came up again that it was passed back into law.
Currently there are no laws, shelters, or resources for men who find themselves the victims of domestic abuse. This issue has been a pretty silent one but not because it doesn't exist, more because of he stigmas attached to it.
Individual States & Marriage - Present Day
In 1996 the federal government kicked off an exceedingly pro-marriage agenda when it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA.) Its whole purpose was to endorse heterosexual two-parent households. That same year the Defense of Marriage Act (DOMA) stated that on a federal level marriage was only valid when it was between a heterosexual couple and that individual states had the right to deny the validity of marriages between gay and lesbian couples wed in other states.
Soon laws popped up in the individual states to confuse the matter. In 1998 Arizona repeals the right for a no-fault divorce, making married couples promise to be together for the entirety of their lives. Florida took a different approach, deciding it was better to educate the young than rule the grown. They instated the Florida Marriage Preparation and Preservation Act which made it mandatory for students to complete a marriage and relationship skills course before they'd be allowed to graduate. In 2000 Arizona took a similar approach spending 1 trillion dollars to reenforce their welfare programs with marriage classes, usually orchestrated by local churches. In the same year Oklahoma spent $10 million encouraging marriage and discouraging divorce. Marriage promotion classes are considered on a federal level after this point.
And where does love fit in all this?
Love only became a defining factor in marriage when the middle classes began to rise drastically in number in Victorian England. They started to believe that marriage should no longer be used for political reasons to bind one family to another but for the sake of two individuals in love. They had one of the most famous couples on earth to look up to - Queen Victoria and her beloved husband Albert. After his death she was so grievous that she wore black as a symbol of mourning for the rest of her life.
As you can see love is a very recent thing when it comes to marriage and when it comes to the law sometimes it doesn't really know what's best for the people. Marriage has been used to discriminate, prosecute, and harass. It's been a tool for bigotry and ignorance. Its been seen in religious and nonreligious settings. Laws and politics have always said a lot about marriage but sometimes individuals have more to say. Please continue reading as my next article describes different forms of marriage from arranged marriages, child brides, polygamy, and even the odd case of polyandy, when one woman takes several husbands. Or perhaps you'd rather learn about different forms of family instead.
Theophanes Avery (author) from New England on February 22, 2013:
Tirelesstraveler - That's an interesting way to look at it... and I do not know for certain if assault and battery laws pertained to women with abusive husbands. I do know when it comes to the protection of children these laws weren't put into effect until the late 1800's - and only then in cases of extreme beatings.
Deb Welch - Thank you for stopping by! I am happy you have made the right choices in life and are content with them, so am I. :)
Deb Welch on February 22, 2013:
A full Hub. Good work. Up, useful and interesting. I couldn't marry the one I wanted so now I am very happy to be a single. Thank you very much.
Judy Specht from California on July 20, 2012:
Have you considered the reasons nearly all of the 20th century skipped domestic violence laws? That while not directly being called domestic violence laws there were laws that worked to protect the woman. That the more specific laws actually make the penalties less than a broader law. For instance until Roe v Wade, the murder of a pregnant woman was automatically a double homicide. What about assault and battery laws. I may be wrong, but women were covered under those laws as well.
This is sort of like states enacting laws against texting and talking on cell phones while driving. Reckless driving laws cover those kinds of things. Therefore by levying a fine of $50 for talking on cell phone, instead of throwing them in jail for reckless driving, you give them a get out of jail card. My state requires not less than 5 days or more than 90 days in jail and a minimum $220 of for reckless driving max of $1,000 for reckless driving. The penalties go up for second offenses. While I don't know for sure, I suspect domestic violence laws do somewhat the same thing to negate the stronger penalty of assault and battery laws. In these cases less is more not easier.
Good hub. Voted up and interesting.
Liz Elias from Oakley, CA on July 19, 2012:
Very well researched and well written. Great historical perspective, and an unbiased 'just the facts' tone. I'm impressed. Voted up, interesting and useful.