Married to the Past: What Law Can and Cannot Do

Commonweal, November 14, 2014 | Go to article overview

Married to the Past: What Law Can and Cannot Do


In "Commitment to Marriage," an open letter issued before last month's Extraordinary Synod on the Family, prominent social conservatives urged the bishops to take a variety of steps to strengthen traditional marriage.

The letter asked the synod to "support efforts to preserve what is right and just in existing marriage laws, to resist any changes to those laws that would further weaken the institution, and to restore legal provisions that protect marriage as a conjugal union of one man and one woman, entered into with an openness to the gift of children, and lived faithfully and permanently as the foundation of the natural family."

It's clear that the authors consider gay marriage and polygamy to be among the changes to be resisted. But what legal provisions, exactly, should be restored? As I pondered this question, I realized even more sharply the limits oflawmaking. It's not enough for a law to have a good purpose in order to be a good law. It also has to achieve that purpose by means that are fair, and that don't impose unacceptable ancillary burdens.

Two hundred years ago, Anglo-American law assiduously upheld the vision of marriage the letter advocates. But key legal buttresses were dismantled piece by piece, because they inflicted other moral costs--particularly on women and children--that were too high to pay. Here are five examples.

Married women's property laws. In the Christian view of marriage, a husband and wife lose their distinct identities and become one person. In the Anglo-American common-law tradition, that person was the husband. A married woman could not own property, enter into contracts, write a will, or earn a salary. In 1867, the Illinois Supreme Court baldly stated the pragmatic justification for this scheme: "It is simply impossible that a married woman should be able to control and enjoy her property as if she were sole, without practically leaving her at liberty to annul the marriage."

Nonetheless, over several decades beginning in the mid-nineteenth century, American state legislatures began to take steps that allowed a married woman to retain some legal and financial independence.

Women's suffrage. Opponents argued that women's suffrage would disrupt the equilibrium between the sexes. A pamphlet produced by the National Association Opposed to Woman Suffrage in 1910 claimed that giving women the vote "means competition of women with men instead of cooperation." It alleged that "80 percent of the women eligible to vote are married and can only double or annul their husband's votes. …

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