Let’s get a grip on this marriage hype. Regardless of what the church says about its sanctity or what the court mandates in the recent Vermont Supreme Court decision extending its "privileges and benefits" to heretofore-free same-sex couples, marriage isn’t a wholly beneficial institution. Rather, wedlock is a contract, often blessed by the church and always enforced by the state. And both formidable authorities have a compelling interest in this particular bargain, since it regulates the sexual activities of adults – mainly women.
Like all contracts, marriage is a negotiation between ostensibly equal parties. The offer of the contract is, "Will you marry me?" The acceptance is, "I do." And the consideration, or the price of the arrangement, is giving up the rights of being single. Marrying obligates a person to love only one, to be sexually faithful, and to forsake all others. For that lifetime promise, the person obtains a perpetually monogamous sexual partner and the duty to support the spouse with his or her earnings and property.
Traditionally, the sexual relationship linked to reproduction and child rearing made mothers, and especially stay-at-home moms, the dependent parties. The institution attempted to insure that their unpaid labor in the home was financially reimbursed by bread-winning fathers through child support obligations, alimony, and property settlements.
Because it’s a sacred and legal contract, marital promises can be enforced, and breaches can be punished. The agreement and its breakages are respectively upheld and punished in divorce. Officials appointed by the state – judges – have the right to enter the privacy of the couple and decide who has breached the marital contract, who is at fault, and who will pay. Adultery is still a breach, as is the refusal to have sex. While neither are prosecuted as crimes any longer,
both are considered in fault determinations, at times causing the offending party to pay or to have the marriage dissolved in divorce or annulment.
The marital contract has always been more burdensome to women than to men. It insures that wedlock, as 19th-century feminist and suffragist Susan B. Anthony charged, is a relationship in which "tyrant law and lust remain supreme with him," and in which a "meek submission and cheerful obedience alone befits her." In its monogamy command and control by financially and physically stronger males, it established the legal myth or presumption that children born of a marriage are the legitimate children of legal fathers. This provided the basis for fathers’ rights to children and created a sharp distinction in the law between legal sons and daughters of legal fathers and the bastard children of single mothers, who even now, as the only known parent, have sole responsibility for their children. The marital presumption gave added relief to worried wealthy fathers, who wished to pass on their property at death only to their biological sons and daughters, maximally insured to be blood heirs through weddings.
But hasn’t marriage changed, especially with feminist demands to distribute its privileges and duties evenly between the sexes? Aren’t "open marriages" possible? In our lifetimes, marriage has encumbered wives more than husbands. Adultery, always more harshly punished in women than men, was often followed in the US by the murder of women or their partners by husbands. These homicidal acts were regarded as "crimes of passion" and considered lesser offenses than murder. And the coupling of especially unpopular pairs, like the Black minister with a White woman in Irasburg, Vermont, in the late 1960s, could mean even at that late date, the prosecution and conviction of participants in the felonious crime of extra marital love.
In the late 60s, women both married and single, denied abortion and birth control in many states, had no control over their reproductive lives. Into the 70s, married women in Vermont didn’t have the right within marriage to reclaim and use their maiden names. In 1971, I applied to the Chittenden Probate Court to change my married name back to my other patriarchal name, and was told to go home and return with my husband. In person and before the judge, he had to permit me to resume my maiden name. I did as I was told, returning with both my husband and an American Civil Liberties Union attorney, who finally secured an opinion from the state attorney general that even married females – like all other adults – had the right to choose their names.
Until the passage of the Relief from Abuse statutes in the early 70s, women weren’t protected from the assaults of their husbands. Law enforcement officials were loath to go against the common wisdom that a "man’s home is his castle." Until the revisions of sexual assault laws, wives couldn’t refuse sex with husbands, even when separated from them, since spousal rape was legal. And as we enter the 21st century, women are too often left dependent and broke at the end of marriage.
Abroad, marriage remains in its historic full force and effect, in control of sexual behavior and women. In much of the Moslem world and the Middle East, women can’t divorce and have few rights to the custody of their children. At times, they are stuck in polygamous relationships. Their faces are hidden by veils to avoid the gaze of men other than their husbands and male relatives. In India, reports still circulate that wife burning by husbands in search of second dowries goes unpunished. In many parts of the world, barely pubescent girls are exchanged by families for bride prices, and too many girls and women are murdered in "honor killings" by male relatives upset over the sexual behavior of wives, daughters, and mothers. In the minds of the men, they’ve besmirched the patriarchal family name by engaging in disapproved sexual behavior.
When we add to this list the vast numbers of people trying to be relieved of marriage in divorce, it becomes clear that marriage has a checkered record. Nowhere is it the "voluntary, consensual, loving relationship between equal adults" that French feminist Simone de Beauvoir called for as the only relationship befitting free people. Everywhere it regulates women and sex. As Freud argued, its control implements one of society’s most strongly held beliefs – that is, if sex were truly free, civilization itself would founder, since the erotic energy of humans would no longer be channeled into respectable activities like work.
Yet, the institution persists, and the recent Vermont Supreme Court decision has rightly extended its privileges and benefits, as well as its detriments, to same sex couples who until now have been denied access to marriage. As equal citizens before the law, these couples certainly have the same rights to contract as all other citizens. With a lack of automatic sex roles, they just might lessen marriage’s sting.
On the other hand, essential questions remain, and, as in all contracts, they must be asked: What is being surrendered in the deal? Is the price paid worth the benefits received? Is the bargained for prize really a lemon? In accepting the marital contract, are the privileges and the integration into mainstream society worth forsaking the liberty to live as single people, unfettered by church, state, spouse, and the suffocating ideas of conventional respectability?
Sandy Baird is an attorney and member of TF’s board of directors.