Editor’s note: Elizabeth Fox-Genovese, a professor of the humanities and history at Emory, died in early 2007. She left behind one last book, however, on marriage — advocating for it and its protection. Marriage: The Dream That Refuses to Die has just been published by ISI Books; here we excerpt Chapter 3.
On Tuesday, November 18, 2003, in
Goodridge v.
Department of Public Health, the Massachusetts Supreme Judicial Court, by a 4–3 vote, ruled that, under the state’s constitution, same-sex couples have the right to marry — or rather, that denying them that right failed to meet “the rational basis test for either due process or equal protection.” In the words of the majority opinion, “[t]he benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death.” The majority concluded that the right to such benefits “means little if it does not include the right to marry the person of one’s choice.”
The decision explicitly appealed to Canadian rather than American precedents, thereby following the trend set by the Supreme Court — and celebrated by Ruth Bader Ginsberg — in
Lawrence v.
Texas. The influence of Canadian law and policy on the decision is clear, but the language also uncomfortably echoes that of
Casey v.
Planned Parenthood of Pennsylvania, in which the justices soberly announced that decisions about the meaning — in this instance, the value — of life were purely personal matters. And as others, notably Robert George, have pointed out, the disturbing evocations of due process and equal protection run through them all. In effect the courts have usurped the authority of the political process, assuming sweeping authority to legislate by
fiat how we should live our lives — all in the name of our right to personal choice, which they celebrate as equal protection and due process.
The language of individual choice or individual right has proven extraordinarily seductive both as an invitation to do as one pleases with a clear conscience and as a deterrent against disapproval of the choices of others, which are grouped under the preposterously euphemistic blanket of “lifestyle” choices. Lifestyle choices, it turns out, include every imaginable sexual practice, including a new addition — “questioning” — as well as those older preferences which, not so long ago, were known by such judgmental terms as incest, pedophilia, statutory rape, necrophilia, and bestiality. Some older ones, like fornication and sodomy, seem virtually to have disappeared from our vocabulary. Lifestyle choices also include the choice to abort or not to abort, to marry or not to marry, to bear a child within marriage or outside of marriage, to cohabit or not to cohabit, and on
ad infinitum. Logically, there is no reason not to add to this list polygamy and polyandry. The notion of marriage as the union of one woman and one man has been dissolved in a flood of options, reduced to the status of one “choice” among many. And if the gravest and most sacred features of human existence are reduced to matters of style, why should we care which styles others may choose?
We have reached a precipice, over which many seem eager to plunge, some maliciously, others blindly: Having reduced the most intimate personal relations, including those that have been our most reliable social bonds, to styles, we have banished morality from serious public discourse. The insistence upon viewing the world — including all forms of social and personal relations — from a purely subjective perspective has led us to embrace, as the Court in
Casey encouraged us to do, the comfortable position that the weightiest questions about the value of human life are matters of purely personal concern — to be decided by each individual for himself or herself. With moral norms for personal relations swept aside like accumulated dustheaps and cobwebs, the ground on which to oppose same-sex marriage has been eroding. In the previous two chapters, I offered a functional and evolutionary view of marriage as a social institution, and it would be easy to assume that my intention was to endorse it. What could be more natural than to reason that, since marriage has constituted a primary social bond in different societies, it is only natural for marriage to continue to adapt to changing social, economic, and political conditions?
If changes in the larger social environment account for and justify changes in marriage, no era could be more promising than ours for massive change, and it is hard to believe that the proponents of same-sex marriage are not counting on precisely that logic to carry the day for their cause. The twentieth century arguably witnessed as much change as all of previous history combined. It assuredly witnessed a more rapid rate of change than any previous epoch, doubtless most dramatically in the realm of technology, but no less portentously in the realm of social mores. Until recently, all of the most visible social changes have concerned women, whose accelerating access to the full status of individual has decisively undermined the bonds of marriage and the bonds between parents and children.
Nothing could be further from my intentions than to blame women for our current woes. Much in women’s situation called out for redress, notably their subordination to men and their exclusion from countless opportunities for independent participation in the public worlds of politics and work. But the justice of women’s basic goals does not automatically justify the consequences that have ensued from pursuit of them. No less importantly, women’s campaign for greater individual rights and personal independence was almost always more symptom than cause of the great secular changes that were radically transforming the world. For example, women legitimately sought greater freedom within marriage, especially control of personal property or wages, and sought greater opportunities as married women within society at large, especially the right to specific forms of work. But it does not follow that the best solution to women’s demands lay in easier access to divorce — or even in greater freedom from pregnancy.
Indisputably, easier access to divorce, artificial contraception, and the resultant radical restriction of pregnancies increased women’s independence within marriage, their freedom to leave or to avoid it, and their freedom to pursue careers in the public sphere. But these putative “advances” decisively weakened marriage in ways that might have been avoided. Easing marriage bonds seemed appealing to many men, some women, and, in the long run, to employers, who benefited from the mobility of unencumbered employees. Especially after World War I, when women gained unprecedented social freedom and even the vote in several industrial nations, including Great Britain and the United States, the rapid increase in urbanization seemed to enhance the desirability of single individuals who could respond to new opportunities without the burdens of personal allegiances. This increase in urbanization also offered women growing opportunities to work and to live on their own. As feminists have been the first to point out, the opportunities for women during the interwar years left much to be desired, and improvement often had more to do with style than substance. But that reality made the apparent freedom of easier social mores and easier access to divorce all the more seductive — to cynical employers as well as to many women themselves.
For the rest of the twentieth century, the temptation to blame marriage for many of women’s disadvantages proved irresistible to many feminists, and no few women who did not initially identify with feminism found their arguments convincing. Campaigns for no-fault divorce, for example, passed in many states with little opposition, although a few astute social analysts, women as well as men, called attention to the costs, especially for less affluent women and their children, who typically experienced a decisive drop in income following a divorce. But the real blow came with Roe v. Wade, which has since stood as the cornerstone of the liberationist agenda. Independent of the heated — and uniquely important — debates about abortion, which increasingly have pitted the sexual freedom of the woman against the life of the child, Roe, combined with the mounting impact of the pill, delivered the knockout punch to the notion that a man should be expected to marry a woman he impregnated. Not for nothing did Casey piously affirm that women had become accustomed to working to support themselves — the justices seemed determined officially to liberate men and the state from any lingering obligation to do so.
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