CHAPTER 1

A Telescoped History of Marriageand the Progressive Era Debate

The United States has a distinct and complex history of marriage. But thestory must begin centuries before Columbus, with the church, which hascast a long shadow on all Western conceptions of matrimony. St. Paul providesa useful starting point, for his distrust of sexuality imprinted a legacyof deep ambivalence. On one hand, Paul thought celibacy a more exaltedstate than matrimony; on the other, that it was better to marry than to"burn," for Hell was the destiny for those having sex out of wedlock. Fromthe start, then, Christianity identified marriage as a compromise with humanity'slower nature. Paul also believed (perhaps begrudgingly) that marriage,if entered into, should be permanent. That view became church doctrinein AD 314, when the Council of Arles proclaimed the indissolubilityof marriage. The twelfth century, when the church endorsed the doctrineof marriage as a sacrament, marks another milestone. The church's authorityextended further when the 1563 Council of Trent placed marriage completelyunder religious (rather than civil) jurisdiction.

According to most accounts, modern conceptions of marriage begin withthe Reformation. Luther declared marriage a "temporal, worldly thing"which "does not concern the church." Protestants denied the sacramentalnature of marriage, while still seeing it as divinely sanctioned. According tofamily historian Lawrence Stone, the notion of "holy matrimony" embracedby Protestant reformers elevated marriage from the necessary evil it hadseemed to St. Paul to a positive good. This redefinition also laid the groundworkfor rethinking marriage's worldly purpose: a union was more likelyto be "holy" if harmonious—and harmony more likely if spouses were compatible.For that reason, according to Stone, the Reformation shifted theview of marriage from serving family "interest" (e.g., advancing economicand social power), as it had for centuries, toward fulfilling individual needsfor companionship.

From the beginning, the American colonies emphasized the civil over theecclesiastical foundation of marriage, a fact that may be surprising givenhow much religion dominates current discussions of marriage. The legalfoundation of marriage in the United States, rooted in English common law,has its own intricate history. That history has had, from the start, negativeconsequences for women.

Sir William Blackstone established the legal ground for the subordinationof wives, a doctrine that generations of reformers, among them the progressives,would challenge. His Commentaries on the Laws of England (1766),which became foundational legal doctrine in the United States, synthesizedthe common law that had evolved over the centuries while extending itsauthority by aligning it with natural law. The key concept here is coverture,which means that, when married, spouses become "one person in law."Blackwood identifies that "one person" as neither androgynous nor sexless;rather, "the very being or legal existence of the woman is suspendedduring the marriage, or is at least incorporated and consolidated into that ofthe husband; under whose wing, protection and cover, she performs everything."The wife's legal identity is covered over by her husband's. Covertureunderwrites what historian Hendrik Hartog calls the "legal fiction" of maritalunity, "a set of imaginary 'facts' created to achieve a legal result." Whilea feme sole (or single woman) had, at least theoretically, legal autonomy, afeme covert had none: she lost any personal property to her husband, hadalmost no agency in the matter of contracts or wills, and could neither suenor be sued. Marital unity provides the basis for the still-familiar provisionthat spouses cannot testify against each other in legal proceedings. Andsince the law reads the identity of each marital unit as male, the result was,in the words of Norma Basch, "legal invisibility" for the wife.

The Reformation weakened coverture and marital unity by encouragingwives to seek salvation independent of their husbands. Common law, however,proved resilient, surviving the Middle Ages, the emergence of capitalism,the more companionate nuclear family of the eighteenth century,and fl ourishing after transplantation onto US soil. The conclusion of Historyof Woman Suffrage (1888–1922), edited by Susan B. Anthony and ElizabethCady Stanton, that the common law was always "unjust to women" is borneout in the case of marriage.

Two US legal writers, Tapping Reeve in The Law of Baron and Femme(1816) and James Kent in Commentaries on American Law (1826 and 1830),reinforced Blackstone's conclusions. The result, explains Basch, was thatstate laws upheld marital unity (and thus also women's subordinationwithin marriage) in a manner both "more subtle" than in English commonlaw and "more ominous."

At first glance the antebellum wave of married women's property lawsmakes it seem as if marital unity were losing hold. In 1839, Mississippibecame the first state to pass a statute allowing married women to ownproperty; by the end of the Civil War, twenty-nine states had similar provisions.(England would not enact its first Married Women's Property Act until1870.) These theoretical improvements, however, did not translate intomuch practical consequence: de facto coverture persisted long after the beginningsof its de jure dismantling. One reason for that persistence, Nancy F.Cott explains, is that judicial interpretation can vitiate the letter of a law—andjudges continued to uphold common law principles favoring husbands,in effect nullifying married women's property rights. Another reason, accordingto Linda K. Kerber, is the tenacity of supposedly "common sense"views about husbands' sexual rights—as reflected, for instance, in the absenceof any legal definition of marital rape until the 1970s. Kerber declaresthat coverture, "as a living legal principle, died" only in 1992, when theSupreme Court decided in Planned Parenthood v. Casey that husbands do nothave power over their wives' bodies.

A controversy over whether marriage constitutes a legal contract or statushas considerable ramifications for the story of progressive marital reform.The law differentiates between status (a permanent condition) and contract(a voluntary agreement that can be broken). In 1861, Henry Sumner Maineexplained the consequences for family law: if family were understood tobe a status, then the unit would assume primacy over its members. But ifthe family were a contract, the individual would prevail. Positing the familyas a legal contract, then, renders it a less powerful, even less coercive,institution. Maine believed the long view of legal history demonstrated justsuch a shift away from the family and toward the individual. Cott clarifiesan important consequence of this legal distinction: if marriage is a status,then it is a "public institution"; if a contract, marriage is a "private arrangement."Wanting to have it both ways, the United States has evolved the distinctview, according to Cott, of understanding marriage as both "a privaterelationship" and "a public value"—both of which remain "enshrined inlegal doctrine."

While the history of marriage in the United States follows patterns establishedin Europe, particularly England, from the outset signs of nationaldistinctness are evident. Blackstone defined marriage as a curious amalgamof contract and status, with status ultimately prevailing. But the Americancolonists, drawing from Calvinism, Anglicanism, and English ecclesiasticallaw, tipped the balance toward contract, a view that intensified after theAmerican Revolution. Women's rights advocates seized on the distinction;Elizabeth Cady Stanton was among those finding "the grossest absurditiesand contradictions" in calling marriage a contract while limiting spouses'right to terminate their contract by divorcing. By 1910 a former supremecourt justice voiced an increasingly common position when he asserted thelegal equivalence of marriage and commercial partnerships since both arecontracts. Because a commercial arrangement could be terminated by mutualagreement, marriage could not, in his view, be "indissoluble."

So-called "common law" marriage, initially an extralegal arrangement,also plays an important role in marital reform. Defined as cohabitation leadingto the presumption of an enduring relationship—but without any legalseal of approval—common law marriage was widespread in the UnitedStates by the early nineteenth century. In the last quarter of that century,however, common law marriage entered legal doctrine. In Commentaries onAmerican Law, James Kent provided the rationale, asserting "the consentof the parties is all that is required." As Michael Grossberg summarizes thesignificance of the legal recognition of common law marriage, courts wereshifting to value "practice over form." Positing marriage as an experientialand personal relationship rather than a formal, official one will become, asI will show in the next chapter, central to progressive marital reform.

A peculiarity of US marriage law derives from the "full faith and credit"doctrine, which obliges each state to accept the laws and provisions of theothers. In 1776 the states assumed jurisdiction over matrimonial and divorcelaw, which lay the groundwork for what would evolve into chaotic inconsistencies.States established contradictory laws—for instance, regardingthe age of consent and rules restricting marriageability (such as restrictionsdue to race or degrees of consanguinity). As a result, a couple might meetlegal requirements for marriage in, say, Indiana but not in South Carolina.One landmark Progressive era case, Haddock v. Haddock (1906), providesa glimpse of the resulting confusions. In 1881 a man divorced his wife inConnecticut on the ground that she had deserted him. But eighteen yearslater, the wife petitioned the New York court for a divorce of her own. Sheclaimed the earlier divorce was invalid since their residence as a marriedcouple had been New York, not Connecticut. The New York court ruledin favor of Harriet Haddock, in effect nullifying the Connecticut decision.More to the point, New York granted Mrs. Haddock alimony—which Connecticuthad not. The New York decision was subsequently upheld by theSupreme Court. Such messy situations illustrate why Basch concludes thatUS marital law is "an incoherent amalgam of inconsistent moral preceptsbased on competing ideological foundations."

Marriage assumed a distinct cast in the United States also because ofnineteenth-century experiments by communitarian utopian movements.Shakers and Rappites favored celibacy, but other utopians put sexual activityat the center of reform projects that challenged existing marital mores.Robert Owen's New Harmony colonists, for instance, rejected the notionof pledging oneself to another for life; they believed that when lovefades, spouses should part. Owen's Fourth of July "Declaration of MentalIndependence" (1826) renounced, in addition to private property and establishedreligion, "marriage founded on individual property"—that is, aman's ownership of his wife. While that anti-proprietary ideal would have ahuge bearing on other reform movements, including in the Progressive era,Owen also helped import another utopian movement into the United States.Owen urged French novelist and politician Etienne Cabet, founder of theIcarian movement, to purchase land in Texas. The Icarians, who saw celibacyas unnatural and declared marriage obligatory, believed all marriageswould become happy once society embraced true equality and fraternity.Robert Owen's marital experiments were continued by his son Robert DaleOwen, author of the widely read birth control text Moral Physiology (1830).The younger Owen considered coverture and marital unity "barbarous relicsof a feudal, despotic system" and repudiated all legal powers over hisown wife.

Led by John Humphrey Noyes, the Oneidan experiment lasted thirtyyears, longer than most utopian movements. Oneidans practiced what theycalled "complex marriage," whereby each member was understood as marriedto every other community member of the opposite sex. Believing thatmonogamy bred many evils (such as encouraging adultery and prohibitingpeople from communing with kindred souls to whom they happened notto be married), Oneidans saw their own "pantagamous" marriage as superior.Their attitudes are notable also for the emphasis placed on women'ssexual satisfaction and birth control. Believing that men could climax withoutejaculating, Oneidans encouraged what they called male continence toreduce unwanted pregnancies.

Andrew Jackson Davis placed marital reform at the center of an importantmid-century religious movement, Harmonialism, which later evolvedinto Spiritualism. Drawing from the Fourierist idea of "passional attraction,"Davis encouraged followers to seek their "spiritual affinities." Believingthat each person had one true mate—whether encountered in thisworld or the next—Harmonialists affirmed a sort of super-monogamy. Daviswas also a Perfectionist, which, translated into marital beliefs, meantthat while marriage ties were holy, divorce remained necessary until societyprogressed to the higher, harmonial stage. At that point, unions betweenspiritual affinities would last into the next world. Davis saw divorces, therefore,as "good steps to better things" and sanctioned sexual experimentationin the interim.

Roderick Phillips concludes that the lasting impact of these intriguingmarital experimenters was minimal. Not surprisingly, they provoked moreopposition than support. The utopians in fact never sought to change societyat large, intending their marital reforms only for the elect. Yet manyof their ideas resurface in forms that would prove more widely acceptableduring the Progressive era.

Due to their nonconformity with prevailing marital norms, these variousdissenters were branded "free lovers" by their opponents. As a term, "freelove" was a call to arms, but as a practice it was nebulous. Historian AnnBraude explains that free love is difficult to define precisely because the termwas usually invoked as an insult. But two broad tenets can be discerned:on the ground of their commitment to women's emancipation, mid-centuryfree lovers rejected marriage based on coverture; they also held individualsovereignty as the highest principle.

The free love controversy raged most famously in two series of New YorkTribune articles. The first debate began with Henry James (Senior)'s reviewof a free love text in November 1852. Since James considered only unionsbased on love to be valid, he concurred that marriage would be improved byallowing unhappy couples to divorce. This mild position was enough to persuadeTribune editor Horace Greeley that James himself practiced free love.In articles that ran through February 1853, Greeley defended marriage fromwhat he saw as attacks by James as well as by anarchist-abolitionist StephenPearl Andrews. The latter (who unlike James was in fact a free lover) tooka more radical position, denying the state any jurisdiction over matrimonywhatsoever. In 1860 Greeley repeated the performance in a series of debateswith Robert Dale Owen, whom he accused of promoting free love in Indiana.Owen fired back that New York was the real den of free love (due toits stringent laws permitting divorce only when adultery could be provenwhich, according to Owen, thereby encouraged infidelity). The flamboyantVictoria Woodhull—publisher, stockbroker, and 1870 presidential candidate—wasone of the most visible free love advocates. She campaigned forthe abolition of marriage because under coverture, wives were treated asproperty. In an 1872 essay outing the affair of popular minister Henry WardBeecher with one of his parishioners, Woodhull (who objected not to theaffair but to the secrecy surrounding it) claimed she was "conducting a socialrevolution on the marriage question." Often married themselves, thevast majority of nineteenth-century free lovers were misty idealists ratherthan lustful decadents: they believed mistaken ideas of marriage corruptedtrue love.

The Church of Latter Day Saints (better known as the Mormons) providedthe most significant nineteenth-century challenge to US marital norms. In1843 founder Joseph Smith claimed to have received a revelation from Godsanctioning polygyny, a practice the church initially limited to its leaders.Nine years later Brigham Young made polygyny official doctrine for all thefaithful. A centerpiece of Mormonism became "celestial marriage"; whilebelievers saw monogamous earthly marriage as contracted only for "time"(the duration of mortal life), polygynous celestial marriages were understoodas contracted for "time and eternity." The national controversy overMormonism spawned sensational novels and tracts such as the piquantlytitled Polygamy or, the Mysteries and Crimes of Mormonism, Being a Full andAuthentic History of this Strange Sect From its Origin to the Present Time With aThrilling Account of the Inner Life and Teachings of the Mormons and an Exposéof the Secret Rites and Ceremonies of the Deluded Followers of Brigham Young(1904). Dedicated "to the Women of America, Whose Sympathies are everactive in behalf of their Suffering and Oppressed Sisters," this tract featuresvaguely salacious illustrations, one of them depicting an anthropomorphic"Mormon Octopus enslaving the Women of Utah"