Opponents of equal marriage rights for same-sex couples say that marriage has always been between a man and a woman and must remain so. They argue from “tradition.” Counter to their claims is an argument from history—a history of change over time.

Many features of marriage that were once considered essential have been remade, often in the face of strong resistance, by courts and legislatures. Economic and social changes have led to increasing legal equality for the marriage partners, gender-neutrality of spousal roles, and control of marital role-definition by spouses themselves rather than by state prescription. Yet marriage itself has lasted, despite these dramatic changes. Not only that: it retains vast appeal.

Why? The core of marriage as an intimate and supportive voluntary bond has been preserved. Today constitutional law sees marriage as a fundamental right. Most Americans are legally allowed to marry as they see fit. But same-sex couples remain excluded in most jurisdictions. This exclusion stands at odds with the direction of historical change toward gender equality and neutrality in the legal treatment of marital roles.
A “Civil Thing”
Seventeenth-century English colonists in North America created marriage laws almost immediately upon settling. In England the established Anglican Church ruled marriages, but rather than replicate that arrangement or treat marriage as a sacrament (as Catholics do), colonial legislators asserted that marriage was a “civil thing” because it dealt with matters of property. Although the great majority of colonists believed in the basic tenets of Christian monogamy, colonial legislators explicitly rejected religious authority over marriage. Thus even before the American Revolution, marriage was deemed a civil institution, regulated by government to promote the common good.

After the founding of the United States, state after state maintained this principle. State laws allowed religious authorities to perform marriage ceremonies and to recognize only marriages adhering to the requirements of their own faith, but not to determine which marriages would be considered valid by the public. For example, California’s first state Constitution stipulated, “No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect,” a provision now retained in the state’s Family Code. To be sure, many people, then as now, invested marriage with religious significance, but that had no bearing on any marriage’s legality.

The several states’ jurisdiction over marriage was a component of their wider powers to promote the “health, safety and welfare” of their populations. The states maintain those same powers today, subject to the requirements and protections of the federal Constitution. States set the terms of marriage, such as who can and cannot marry, who can officiate, what obligations and rights the marital agreement involves, whether it can be ended, and, if so, why and how.

After emancipation, Southern officials used marriage rules to punish African Americans.

These kinds of regulations reflect the longer history of marriage in its Western (and specifically Anglo-American) form. In the fifteenth through eighteenth centuries, as this form was being forged, marriage itself was understood to be a vehicle of governance. British and Continental European monarchs were happy to see their subjects marry and create households under male heads. Each married man served as the king’s delegate, in effect ruling over his wife, children, servants, and apprentices, and assuming economic responsibility for them.

Consent Is the Key
When the United States was established on republican principles, marital households continued to serve a governance function, but in a manner that reflected the novel style of the U.S. government. Sovereignty in the United States was understood to be based on the voluntary consent of the governed. Likewise with marriage—the male-led marital household was legitimized by consent.

Parallels between the voluntary consent joining a husband and wife in marriage and the voluntary allegiance of citizens to the new United States were common in Revolutionary-era rhetoric. The statesman and legal philosopher James Wilson saw mutual consent as the hallmark of marriage, more basic even than cohabitation. In a series of lectures delivered in 1792, he argued, “The agreement of the parties, the essence of every rational contract, is indispensably required.”

Because free consent—the mark of a free person—was at the core of the matrimonial contract, slaves could not enter into valid marriages. Considered property by law, slaves lacked basic civil rights, including the essential capacity to consent. Furthermore, marriage obliged those undertaking it to fulfill certain duties defined by the state, and a slave’s prior and overriding obligation of service to the master made carrying out the duties of marriage impossible.

Where slaveholders permitted, slave couples often wed informally, creating family units of consoling value to themselves. But slaveholders could break up those unions with impunity. Slave marriages received no defense from state governments.

After emancipation, former slaves flocked to get married legally. As free persons, African Americans saw marriage as an expression of rights long denied them and a recognition of their capacity to consent lawfully. The Freedmen’s Bureau, in charge of the transition of former slaves to citizenship in the occupied South after the Civil War, avidly fostered marriages among the freed people and welcomed the creation of male-headed households among the African American population.

But sometimes Southern officials balked, appreciating, too, that legal marriage was an emblem of the basic rights of a free person. After the Bureau’s departure, some Southern white officials refused to grant African Americans marriage licenses or charged prohibitive fees for them. More often Southern authorities used marriage rules punitively by prosecuting African Americans for minor infractions of the matrimonial bargain.
A Tool of Public Order
The state-generated social and economic rewards of marriage encourage couples to choose committed relationships of sexual intimacy over transient relationships. Along with those rewards come certain responsibilities that the state imposes in the interest of public order. The marriage bond creates economic obligations between the mutually consenting parties and requires them to support their dependents. Governments at all levels in the United States have long encouraged people to marry for economic benefit to the public as well as to themselves.

Laws prohibiting mixed-race marriages were justified in their time by their supposed naturalness.

The principles of female dependency and governance by a male head that served as the basis of early American marriage law bespoke pervasive assumptions about a “natural” sexual division of labor. Men and women were assumed to be capable of, prepared for, and good at distinctive kinds of work. In a predominantly agricultural United States, men plowed the fields to grow the grain, and women made the bread from it: both were seen as equally necessary to human sustenance, survival, and society. Marriage fostered the continuation of this sexual division of labor and the benefits that were assumed to flow from it.

Legislatures and courts in the United States since the nineteenth century have actively enforced the economic obligations of marriage, requiring spouses to support one another and their dependents, thereby minimizing the public burden that indigents would impose. Although economic units far more powerful than households drive the economy today, marriage-based households are still principal vehicles for organizing economic sustenance and care, including for dependents (whether young, old, or disabled) who cannot support themselves.

As government benefits expanded during the twentieth century, the economic dimensions of marriage gained new features. Today the United States is emphatic in its public policy of channeling economic benefits through marriage-based family relationships. Social Security payments, benefits for the surviving family of deceased veterans, intestate succession rights, and pension income are all extended to legally married spouses, but not to unmarried partners.
Molding the People
Race-based differentiation in marriage laws originated in the American colonies in the late seventeenth century. Most often, these laws banned and/or criminalized marriages between whites and “negroes or mulattoes” but also sometimes extended to native Americans. The bans continued after the founding of the United States.

After the Civil War and emancipation, even more states voided or criminalized marriage between whites and blacks or mulattos, and in response to immigration from Asia, a number of western states expanded the prohibition to Indians, Chinese, and “Mongolians.” As many as 41 states and territories for some period of their history banned, nullified, or criminalized marriages across the color line. These laws, too, were justified in their time by their supposed naturalness.

The prohibitions were challenged after the passage of the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment, but late nineteenth–century courts usually defended the laws by claiming that there was no discrimination involved: whites and persons of color were equally forbidden from marrying each other. No one was excluded from marriage; individuals were merely equally, so it was said, constrained in the choice of marital partner. Of course, the judicial defense of “symmetry” obscured the actual and symbolic force of such laws in a racially stratified society.

Many features of contemporary marriage were fiercely resisted at first.

By declaring which marriages were allowed and which were not, states policed the legitimate reproduction of the body politic. For example, limitations on marriage and immigration converged to exclude—emphatically—people of Asian origin. In the 1860s in California, white American workers voiced considerable animus against Chinese men who had been recruited to complete the transcontinental railroad. In 1882 Congress passed an act excluding all Chinese laborers from entry. Even before that, in 1875, Congress had Chinese women in mind when it passed the Page Act, which prohibited and criminalized the entry or importation of all prostitutes and required the U.S. consul to investigate whether an immigrant woman debarking from an Asian country was under contract for “lewd and immoral purposes.” Regardless of their reasons for entering, almost all Chinese women were barred from American ports. This meant that Chinese men in the United States, who were concentrated in primarily Western states whose laws banned their marriages to whites, had hardly any possibility of marrying legally.

Other marriage legislation punished American women who married foreigners. In 1855 Congress legislated that an American man choosing a foreign bride made her a citizen simply by marrying her, provided that she was free and white. Because the husband’s headship of his wife was assumed to determine her nationality, American women who married foreigners were placed in legal limbo. For the next half-century, the law remained unclear as to the effect of a marriage between an American woman and a foreigner, but doubt was erased in 1907, when Congress declared, “any American woman who marries a foreigner shall take the nationality of her husband.”

In the wake of women’s enfranchisement by the Nineteenth Amendment, and under pressure from women citizens, the Cable Act of 1922 addressed this inequity, ostensibly providing “independent citizenship” for married women. But the Act stipulated that, like a naturalized citizen, an American woman married to a foreigner would forfeit her citizenship if she lived for two years in her husband’s country (or five years in any foreign country).

The Cable Act also maintained a racial prejudice: an American woman who married a foreigner “ineligible for citizenship”—as all Asians were—would still lose her citizenship. This requirement seemed aimed at—or, at the very least, had the effect of—further minimizing marriage opportunities for older Asian men living in bachelor communities. The small number of younger-generation Asian American women born on American soil faced loss of their American citizenship by marriage to any Asian-born man. Even if the marriage ended in divorce or the husband’s death, the wife could never regain her citizenship.
Marriage Changes
Effective lobbying by women’s groups resulted in new legislation in the 1930s to rectify the unequal citizenship consequences of the Cable Act. And over the next half-century, shifting values and the demands for gender and racial equality associated with the civil rights and women’s movements translated into transformations in marriage rules.

Many features of contemporary marriage that we take for granted were fiercely resisted at first. Yet they did eventually win out. Three of the most important such features have been in the areas of spouses’ respective roles and rights, racial restrictions, and divorce.

Under the doctrine of coverture, wives had no separate legal existence from their husbands.

Spousal roles and rights. Although gender parity between spouses would have been unthinkable at the founding of the United States, marriage laws have moved over time in this direction. In Anglo-American common law, marriage was based on the legal fiction that the married couple was a single entity, with the husband serving as its sole legal, economic, and political representative. Under this doctrine, known as coverture, the wife’s identity merged into her husband’s. She had no separate legal existence. A married woman could not own or dispose of property, earn money, have a debt, sue or be sued, or enter into an enforceable agreement under her own name. The spouses were assigned opposite economic roles understood as complementary: the husband was bound to support and protect the wife, and the wife owed her service and labor to her husband.

Beginning in the mid-1800s, the principle of coverture came under increasing challenge. As the agricultural way of life was overtaken by a dynamic market economy, wives started to claim their rights to hold property and earn wages in their own names. Cooperative husbands in harmonious marriages saw advantages in their wives having some economic leverage. Many judges and legislators agreed: a wife’s separate property could keep a family solvent if a husband’s creditors sought his assets, and fewer bankruptcies meant savings for the public purse.

Unseating coverture was a protracted process because it involved revising the fundamental gender asymmetry in the marital bargain. The assumption that the husband was the provider, and the wife his dependent, did not disappear as soon as wives could own property and wages earned outside the home. As late as the mid-twentieth century, judges saw the wife’s household service as a necessary corollary to the husband’s obligation to support her. Every state legally required the husband to support his wife and not vice-versa. Support requirements were not a mere formality: they meant that men who failed to provide could be prosecuted and thrown in jail, and they disadvantaged women in the labor market. In the words of one legal commentator writing in the 1930s, “the courts . . . jealously guarded the right of the husband to the wife’s service in the household” as part of the legal definition of marriage.

The expansion of entitlement programs during the New Deal further complicated gender asymmetry in marriage. Federal benefits such as Social Security built in special advantages for spouses and families, but with different entitlements for husbands and wives. Only in the 1970s did the Supreme Court reject this gender asymmetry as unconstitutionally discriminatory. Spousal benefits have been gender-neutral ever since.

Racial Restrictions. The fundamental right to marry was formally articulated in the 1923 U.S. Supreme Court case of Meyer v. Nebraska, but race-based marriage bans continued, with Virginia passing the most restrictive law in the nation the very next year.

In 1948 the Supreme Court of California, in Perez v. Sharp, became the first state high court to declare race-based restrictions on marriages unconstitutional. At that time bans on interracial marriages were on the books in 30 states. The California high court held that legislation addressing the right to marry “must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.” Over the next two decades, more than a dozen states eliminated their own race-based marriage laws.

Some states’ divorce laws once prohibited remarriage for the ‘guilty’ party.

In 1967 the U.S. Supreme Court held unanimously for the plaintiffs in Loving v. Virginia, striking down the Virginia law that made marriage between a white and a non-white person a felony. The Court thereby eliminated three centuries of race-based marriage legislation. Chief Justice Earl Warren’s opinion called such laws “measures designed to maintain White Supremacy,” which were insupportable in view of the Fourteenth Amendment’s guarantee of equal protection of the laws.

The Court’s opinion in Loving reiterated that marriage was a “fundamental freedom,” and affirmed that freedom of choice of one’s partner is basic to each person’s civil right to marry. Today virtually no one in the United States questions the legal right of individuals to choose a marriage partner without regard to race.

Divorce. Legal and judicial notions of divorce likewise have changed in response to the American view of marriage as founded in choice and consent. And in their evolution, they have strengthened that view.

Divorce was possible in some of the English colonies and was introduced by legislation in several states immediately after the American Revolution. The availability of divorce followed from the understanding of marriage as a civil status built upon a voluntary compact. Over the course of decades, almost every state and territory agreed to allow divorce, albeit under extremely limited circumstances. Adultery, desertion, or convictions for certain crimes were the only grounds, with cruelty added later.

In order to obtain a divorce, the petitioning spouse had to initiate an adversary proceeding intended to show that the accused spouse had broken the marriage contract. If divorce was granted, the guilty party’s “fault” was not only against his or her spouse, but against the state as well. Many states’ divorce laws prohibited remarriage for the guilty party.

Asymmetrical marital requirements for husband and wife were incorporated into the legal grounds for divorce. For instance, failure to provide was a breach that only the husband could commit. A wife seeking divorce, on the other hand, would have to prove that she had been a model of obedience and service to her husband while the marriage lasted.

The history of divorce legislation shows a clear pattern. State legislatures have expanded the grounds for divorce, making it more easily obtainable. These reforms were hotly contested along the way, with critics arguing that liberalized grounds for divorce would undermine the marital compact entirely.

But reformers prevailed—with some notable exceptions, such as the state of New York, where adultery remained the sole ground for divorce into the second half of the twentieth century. By that time, divorce proceedings, though still adversarial, often became cursory fact-finding hearings, or even fraudulent performances by colluding spouses who agreed to establish one or the other’s fault. Pressure, principally from the bar, led to a new stage in divorce reform.

The ability of married partners to procreate has never been required to make a marriage legal or valid.

In 1969 California enacted the nation’s first complete no-fault divorce law, removing consideration of marital fault from the grounds for divorce, awards of spousal support, and division of property. No-fault divorce introduced a sweeping change and spread from state to state (as well as in the rest of the industrialized world) as a means of dealing more honestly with marital breakdowns. The no-fault principle advanced the notion that marital partners themselves, rather than the state, could best judge whether a marriage had failed. By 1985 all states had fallen in step, not always using the no-fault rubric, but making it possible for a couple who found themselves incompatible to end their marriage.

Some might argue that the liberalization of divorce had a greater transformative impact on marriage than even the elimination of racial limitations or legally enforced gender asymmetry, though none of these features of marriage—free choice of partner regardless of race, gender parity, no-fault divorce—would be recognizable to eighteenth- and nineteenth-century Americans. States today do retain a strong role in the termination of marriages: post-divorce terms of support must gain court approval to be valid. But the move to no-fault divorce, perhaps more than the other changes, demonstrates the state’s acknowledgment of the idiosyncrasy of individual marriages, and the right of the partners to set their own standards for marital satisfaction and decide whether these standards are being met.
The Weight of History
Marriage has evolved into a civil institution through which the state formally recognizes and ennobles individuals’ choices to enter into long-term, committed, intimate relationships and to build households based on mutual support. With the free choice of the two parties and their continuing consent as foundations, marriage laws treat both spouses in a gender-neutral fashion, without regard to gender-role stereotypes.

At least, most of the time. Except in Massachusetts, Iowa, Vermont, New Hampshire, Connecticut, and Washington, D.C., men may only marry women, and women may only marry men. This requirement is an exception to the gender-neutral approach of contemporary marriage law and to the long-term trend toward legal equality in spouses’ marital roles.

Those who would maintain this exception argue that the extension of marital rights to same-sex couples would render marriage meaningless. They say that the sexual union of a man and a woman, capable of producing children, is essential to marriage and is its centerpiece.

The history of marriage laws tells a more complex story. The ability of married partners to procreate has never been required to make a marriage legal or valid, nor have unwillingness or inability to have children been grounds for divorce.

And marriage, as I have argued, has not been one unchanging institution over time. Features of marriage that once seemed essential and indispensable proved otherwise. The ending of coverture, the elimination of racial barriers to choice of partner, the expansion of grounds for divorce—though fiercely resisted by many when first introduced—have strengthened marriage rather than undermining it. The adaptability of marriage has preserved it.

Marriage persists as simultaneously a public institution closely tied to the public good and a private relationship that serves and protects the two people who enter into it. That it remains a vital and relevant institution testifies to the law’s ability to recognize the need for change, rather than adhere rigidly to values or practices of earlier times.

Enabling couples of the same sex to gain equal marriage rights would be consistent with the historical trend toward broadening access. It would make clearer that the right to marry represents a profound exercise of the individual liberty central to the American polity.

This article is adapted from Nancy F. Cott’s expert report submitted in the case of Perry v. Schwarzenegger in the U.S. District Court for the Northern District of California.