Marriage

B

Importance of Intimacy

The transition from traditional to modern society has increased society’s emphasis on love as the basis for marriage. The concept of romantic love exists in all cultures but is usually not linked to marriage. Love is often portrayed as a dangerous emotion that can end in tragedy. Historically many people in Western societies have also been suspicious of marriages based on love, despite the glorification of love in songs and stories. Passion and romance would quickly fade, many people believed, leaving the couple with a lifetime of regret.

After 1800 a new ideology of marriage gradually took hold. It arose as the result of a variety of social and economic factors associated with the rise of modern society: the shift of work out of the home, the growth of urban living, and the spread of democratic ideals of equality and individual rights. Companionship and emotional satisfaction came to be seen as the criteria for successful marriage. The companionship model of marriage also results from demographic shifts—that is, changes in the characteristics of the population. As the average life span increased and people had fewer children than they had in the past, couples began to experience a prolonged period during which marriage continued without the presence of young children. Compatibility with one’s partner became increasingly important.

As companionship marriage became the norm, people who failed to find satisfaction in their marriages became more likely to consider divorce. Divorce rates in the United States began to rise in the mid-1800s. Each succeeding generation since then has had a higher proportion of marriages end in divorce. The trend has only recently leveled off. A majority of divorced persons remarry, however, suggesting that divorce does not reflect a rejection of the institution of marriage but rather a preference for a different marital partner.

VI

Legal Aspects of Marriage

Looked at in historical perspective, the role of government in marriage is a relatively recent development. In Western Europe before the Protestant Reformation of the 16th century, the Catholic Church presided over marriage. Under traditional pre-Christian practices, in some parts of northern Europe weddings took place in private homes, with elder family members or local officials presiding.

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Under the federal system of government in the United States, the individual states regulate marriage. Virtually all states require that individuals must be 18 years of age before they can marry. Persons below that age must obtain parental permission. To obtain a marriage license, most states require individuals to undergo a blood test for rubella and syphilis, a sexually transmitted disease. Many states also require a waiting period of one to five days between the issuing of the license and the wedding ceremony. The marriage must be formalized before a qualified official in either a religious ceremony or a civil wedding. The couple must register a marriage certificate with the government after the wedding ceremony.

Virtually all states ban marriages between certain blood relatives, such as between parent and child or brother and sister. All states prohibit bigamy—that is, a marriage in which either partner is already married. In the 1967 decision of Loving v. Virginia, the U.S. Supreme Court ruled that laws prohibiting interracial marriage were unconstitutional.

Although marriage in contemporary industrialized societies usually requires religious or legal recognition, or both, some couples may live together as if they are married and not seek formal approval of their union. In recent years, living together as an unmarried couple, known as cohabitation, has become a widespread practice. In the United States roughly half of all newlyweds have lived together before marriage. Some jurisdictions legally recognize common law marriage. Laws in such places consider couples married if they have lived together for a certain length of time.

VII

Same-Sex Unions and Gay Marriage

Several countries have passed legislation to recognize homosexual unions. Such legislation generally refers to homosexual unions as civil unions or registered partnerships rather than as marriages. These unions usually do not entail the full array of rights to which heterosexual married couples are entitled. Gay marriage is legal in six countries: Belgium, Canada, the Netherlands, Norway, South Africa, and Spain.

In 2001 the Netherlands became the first country to legalize same-sex marriages. The new Dutch law eliminated references to a person’s sex in the legal definition of marriage and granted same-sex married couples the same rights that heterosexual married couples have in areas such as inheritance, taxes, divorce, and pension benefits. The law permitted same-sex couples to adopt Dutch children, but not children from other countries. In 2003 Belgium legalized same-sex marriages. The Belgian law gave married homosexual couples most of the same rights as married heterosexual couples have, although it did not allow gay couples to adopt children. In 2005 Spain legalized same-sex marriages. The new law eliminated all legal distinctions between same-sex and heterosexual marriages, including the right to adopt children.

Canadian courts began legalizing gay marriage in a number of provinces in 2002. The courts ruled that a ban on same-sex marriage was unconstitutional because it violated the equal rights provisions of the Canadian Charter of Rights and Freedoms. In July 2005 the Canadian government approved legislation making such unions legal throughout the country. Canada thus became the fourth country to allow gay marriage.

In the United Kingdom a law allowing civil partnerships went into force in December 2005. The law gives same-sex couples in civil partnerships many of the same financial and legal benefits as married heterosexual couples enjoy.

In 2006 South Africa became the first country in Africa to legalize same-sex marriage. The South African law guarantees that married same-sex couples are not denied the legal rights associated with marriage, such as the right to open joint bank accounts and to visit each other as family members in hospitals. However, the law also includes provisions allowing clergy and civil marriage officers to deny gay couples their services.

In 2008 Norway became the sixth country to grant homosexual couples the right to marry. Also in 2008 Ecuador’s voters approved a new constitution that allows for same-sex civil unions.

In most of the United States, marriage between partners of the same sex is not legally recognized and the issue of homosexual marriage provokes controversy. Religious conservatives who believe that the Bible forbids same-sex relationships constitute the most outspoken opponents of gay marriage in the United States. These critics, who fear that the recognition of gay partnerships threatens the institution of marriage, have spearheaded legislative efforts to explicitly restrict the definition of marriage to heterosexual couples.

In 1996 the Congress of the United States adopted the Defense of Marriage Act (DOMA), which (1) allows states to enact laws that deny recognition of same-sex marriages obtained in other states, and (2) defines marriage, for purposes of federal law, as the legal union of one man and one woman. By 2004, 39 states had adopted legislation similar to DOMA. However, gay-rights activists continue to work toward legal recognition of same-sex unions. In 2000 Vermont became the first state to allow gay partners to join in a civil union that grants them the same rights under state law that married heterosexual couples have. Connecticut legalized civil unions in 2005.

In 2003 the Supreme Judicial Court, the highest court in the state of Massachusetts, ruled that same-sex marriages are permitted under the state’s constitution. The court clarified its ruling in February 2004 by saying that civil unions were not a permissible substitute for marriage. On May 17, 2004, authorities in Massachusetts performed the first legal same-sex marriages in the United States. Massachusetts legislators pledged to amend the state constitution to ban gay marriages but permit civil unions. State voters would need to approve such an amendment.

Following the Massachusetts court decision authorizing gay marriages, some U.S. cities and counties—including San Francisco, California, and Portland, Oregon—began issuing marriage licenses and performing weddings for thousands of gay couples. Opponents argued that these marriages violated state law and immediately challenged them in court. In August 2004 the California Supreme Court invalidated nearly 4,000 same-sex marriages performed earlier in the year in San Francisco. In April 2005 the Oregon Supreme Court similarly nullified nearly 3,000 marriage licenses issued to Portland-area gay couples. The courts ruled that local officials improperly disregarded state law in granting marriage licenses and certificates to same-sex couples.

During 2004, partly in reaction to the Massachusetts decision, citizens in 13 states approved state constitutional amendments banning same-sex marriages. By mid-2007 the campaign against gay marriage by the religious right and Republican Party strategists had led voters in 39 states to pass laws reserving marriage for a man and woman.

However, seven states—California, Connecticut, Massachusetts, New Hampshire, New Jersey, Oregon, and Vermont—offered same-sex couples broad, marriage-like rights under state law. In May 2008 the California Supreme Court struck down a voter-approved initiative that banned gay marriage, ruling the law unconstitutional. In October 2008 the Connecticut Supreme Court issued a similar ruling in permitting same-sex marriage. The court noted that having one law stipulating that marriage is solely for heterosexuals and another law conferring the benefits and privileges of marriage for those in same-sex civil unions violated the state constitution’s guarantee of equal protection under the law. See also Gay Rights Movement in the United States.

In November 2008 California voters passed Proposition 8, which overturned the California Supreme Court’s earlier ruling legalizing gay marriage. Proposition 8 would amend the state constitution by defining marriage as a union only between a man and a woman. Immediately after the election, numerous civil rights groups and cities filed lawsuits challenging the legality of Proposition 8. The California Supreme Court agreed to review arguments against the measure but gay marriages would not be allowed prior to a ruling. Similar amendments banning same-sex marriage were also passed in the November elections in Arizona and Florida.

The campaign for gay marriage rights gained ground in early 2009. On April 3, the Iowa Supreme Court legalized gay marriage, unanimously ruling that the state’s same-sex marriage ban was unconstitutional. Four days later, on April 7, the Vermont Legislature voted to legalize gay marriage. The vote overrode Republican governor Jim Douglas’s veto of a bill giving same-sex couples the right to marry. Iowa and Vermont joined Massachusetts and Connecticut as the only states allowing gay marriage.

Although same-sex marriages faced considerable political and religious opposition in the United States, an increasing number of local governments and private corporations recognize domestic partnerships for both homosexual and heterosexual unmarried couples. This recognition allows members of a committed but unmarried couple to enjoy some of the practical benefits enjoyed by married couples, such as insurance, hospital visitation privileges, and inheritance rights. Despite increasing acceptance, domestic partnerships have not been accorded the broad social and legal approval that marriage generally receives.

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