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Apr 2018 | 296 pages | Cloth $45.00
American History | Women's Studies/Gender Studies | Law
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Table of Contents
Chapter 1. The Problem of Marriage in the Era of Women's Liberation
Chapter 2. The End of Breadwinning and Homemaking
Chapter 3. Blaming Feminism for the Fragile Family
Chapter 4. Race, Welfare, and Marriage Regulation
Chapter 5. Sham Marriages, Real Love, and Immigration Reform
Chapter 6. Gay Marriage and "Homosexual Households"
Conclusion. The End of Marriage as We Know It
In the inaugural issue of Ms. Magazine, the feminist activist Judy Syfers proclaimed that she "would like a wife." But her desire was not sexual or emotional. Instead, she offered a deeply felt and wry critique of the state of marriage in modern America. After all, she said, only a wife could provide her with certain comforts like working for wages, taking care of children, keeping the house clean, preparing meals, having sex with her, and much more. Syfers concluded with a rhetorical flourish: "My God, who wouldn't want a wife?" A few pages away in this same issue, Johnnie Tillmon, the president of the National Welfare Rights Association, critiqued not only the Aid to Families with Dependent Children program but also marriage. She proclaimed that all women were domestic slaves, and even marriage provided wan protection or pay for this labor.
Outside of the pages of Ms., other Americans debated marriage. Divorced men's rights activist Charles Metz, for example, opened his own book-long manifesto on marriage reform in 1968 with a triumphant recognition that "noise is swelling from hundreds of thousands of divorced male victims. God help us to swell this noise, still a whimper, into a roar of indignation that will be felt in every court and legislative body in this Union of States and their Federal Government." Phyllis Schlafly, similarly, decried the Equal Rights Amendment for its potential danger to the institution of marriage broadly and to wives in particular. The Immigration and Naturalization Service (INS) identified sham unions as one of the main threats to the nation's borders. Gay men and lesbians, meanwhile, dressed in drag to try to win marriage licenses from oblivious bureaucrats and then went to local newspapers to call attention to their exclusion from marriage.
In other words, a broad array of Americans identified marriage as a problem in the 1960s and 1970s, and the subsequent changes to marriage law at the local and federal levels constituted a legal revolution. But legislators and courts instituted these changes unevenly to ameliorate the problems they identified as the most dangerous, rather than give activists exactly what they had asked for. These new policies replaced the more blatant gender and racial inequalities that courts and legislatures had stripped out of the law during the civil rights revolution. Like law and order campaigns and the War on Drugs, the legal revolution in marriage at once instituted formal legal equality and also created new forms of political inequality that historians—like most Americans—have yet to fully understand.
The difficulty began with the legal foundations of marriage. Half a century after the long struggle for votes for women had secured an amendment to the nation's founding document, wives and husbands were still sharply distinguished not only in popular culture and private life but also in law. State laws nationwide obliged wives to perform nearly all of the tasks that Syfers catalogued in Ms.; wives' unpaid labor in the home still belonged to their husbands in practice and in law. Indeed, laws in every state entitled husbands to their wives' bodies. Until legislators began to recognize the existence of rape in marriage in the late 1970s, state law defined rape as the violent act whereby a man forced a woman who was not his wife to have sexual intercourse. A man could legally force his wife to have sex. Although technically, either spouse could win a divorce based on fault for his or her partner's sexual indiscretion, only a wife lost the right to alimony and marital property when her husband won a divorce for her infidelity.
Yet husbands had their own gendered obligations to fulfill, characterized above all by the duty to support their wives and children. Though a wife had to bring her case to court, the government enforced a husband's financial duties as spouses entered and left a marriage. Many men faced harsh ramifications for failing to fulfill these obligations ranging from court orders to jail sentences. Of course, there were limits to the breadwinner-homemaker political economy. Even at its peak, only some couples managed to live up to these roles. The family wage that enabled some wives to work from home eluded many in the working class. Not all men and women were punished for failing to fulfill these obligations. Nonetheless, for over a century, the roles of breadwinner and homemaker had not only defined what couples privately hoped to practice but had also shaped public policy. This particular system of gendered obligations was codified alongside the rise of separate spheres, justified higher wages for men, and eventually was enshrined in federal welfare programs from Social Security to Aid to Dependent Children.
Beginning in the 1960s, a feminist revival worked to dismantle this system. Feminists questioned and then assaulted the institution of marriage and the gendered roles within it. Different feminists advocated for different ideas ranging from the total destruction of the institution to more cosmetic changes. Liberal feminists had the greatest success at reforming the law, but even among them, two different concepts of equality rivaled one another. One was what I call expansionist—it sought to keep the protections that wives enjoyed by extending them to husbands as well. Wives could take care of their husbands just as husbands had traditionally taken care of wives. The other concept of equality was individualist—it sought to make wives' roles equal to husbands' financially and in law by compensating women for their household labor at the point of divorce, retirement, or widowhood. Neither spouse would have to take care of the other over time. Both visions of equality had some significant though mitigated effects on marriage law, which changed but without fully accounting for the vast gender difference that persisted within the home and in terms of jobs, income, and wealth.
Feminists' redefining of the marriage relationship led husbands to question their roles as well. Many husbands increasingly resented their support obligations when wives began rejecting their roles as homemakers. Most husbands were not well organized, but many nonetheless backed away from breadwinning obligations en masse in the 1970s. Other husbands, like Charles Metz, founded divorced men's groups that sued or lobbied to free men of these obligations. And though these organizations were not the most effectively organized of activist groups, their claims seemed to resonate with state legislatures and courts who limited men's support obligations.
Feminists and divorced husband groups' questioning of the marriage relationship also coincided with welfare, immigration, and gay marriage activists' rising demands that lawmakers treat their families equitably. While their specific goals and who they counted as a family varied, all three of these emerging social movements asked the government to provide the same legal recognition and financial support that "traditional" families received. This diverse array of advocates on the left also made use of the changing legal ground, new resources, and new strategies forged by the civil rights and feminist movements to make demands such as extending gender-neutral obligations to all families or decoupling benefits from family relationships entirely. The resources and strategies had their limits, however. While the feminist movement won a moderated victory in the form of greater legal equality between husbands and wives, these activists gained even less.
While feminists, divorced men's groups, welfare rights activists, gay liberationists, and immigration reformers attacked husbands' and wives' traditional obligations, breadwinning and homemaking also crumbled from within. A range of pressures weighed on the institution of marriage, but financial concerns prompted by deindustrialization were among the most anguishing ones. More husbands found it increasingly difficult to get jobs offering a family wage; financial distress also seemed to spur the growing number of women working outside the home. Though everyday Americans were not necessarily aware of the coming collapse of the postwar economic boom, they certainly understood their own inability to earn a family wage. Even as a diverse array of activists challenged the old marriage regime, many husbands and wives were already necessarily reorganizing their own marriages, "on the ground," on an individual basis across the United States.
The federal structure of the American legal and political system profoundly shaped the outcomes of the marriage revolution. In particular, the strand of liberal feminism that advocated for an expansionist approach to equality had significant success at the federal level. The Supreme Court and Congress preserved wives' rights by making them gender-neutral. But the protection of gender-neutral breadwinner and homemaker obligations on the federal level had more destructive effects on women on welfare, their partners, immigrant spouses, and gay and lesbian couples.
Individualist feminists won a more moderated victory on the state level than expansionist feminists had at the federal level. Many state legislatures passed laws that gave modest financial compensation to some wives for their household labor, but they also scaled back men's breadwinning obligations. Together these two changes helped produce what legal scholar Mary Anne Case has termed a "thin" definition of marriage—legally, husbands and wives owed each other few duties. Ultimately the ideas circulating at the state level had a larger impact on husbands' and wives' lives than did the Supreme Court or Congress, both of which ignored or did not notice the state-level disintegration of marital duty. The federal government had the power to influence state marriage law, just as it did in other state programs through block grants and other means. In other words, the federal government's striking failure to recognize the changes occurring at the state level was not inevitable.
Understanding the changes to breadwinning and homemaking policies and the varied effects of those changes on differently situated people sheds light on a number of trends in postwar U.S. history. First, feminists were not the only actors affecting marriage law—a revolt by male breadwinners also had momentous effects on state law. Therefore even gender-neutral law left gendered inequalities in the family in place. This story also brings into sharper focus one of the key developments in the late twentieth century history of gender, the feminization of poverty. Under the new marriage law regime, most white women and most women of color increasingly faced similar fates. Policies premised on the breadwinner-homemaker division of labor had long sought to protect white women from the vagaries of the market, but most women of color had been left out of this bargain from the beginning. By the mid-1990s, very few women retained these protections, and even middle-class white women found themselves solely responsible for the household as many women of color had long been.
Furthermore, this story also helps to explain the New Right's rise to power. The fracturing of the breadwinner-homemaker household in law first allowed conservatives to displace some anger about the economic downturn onto feminists. Conservatives then made simultaneous moral and economic claims against the aspirations not only of feminists, but also of welfare rights activists, immigrants, and gay men and lesbians.
Finally this story also helps to explain how liberal reforms coexisted with the persistence of inequality for the poor, people of color, and the LGBTQ community. Stripping marriage of its thick gender obligations benefited only the most privileged. For example, poor women did not receive the compensation for their household labor that wealthier divorced women did; poor men could not as easily escape their breadwinning responsibilities as middle-class men could. Gay men and lesbians did not win the legal right to form a household until decades after marriage lost most of its gendered properties.
In the nineteenth century Americans struck a bargain that marriage and family would provide a social safety net, and we have continued to rely on this idea of family even as other countries have transferred that care over to the state. Increasingly now, marriage does not provide this in practice or in law. The greatest burdens for providing care for the vulnerable have fallen on women, the poor, and other disadvantaged Americans. This disjuncture between the social safety net we still think marriage provides and the vast gaps in marriage's coverage is the unfinished revolution.
* * *
The book unfolds in two parts. The first section recounts how lawmakers removed gender from marriage law. It begins by detailing challenges to the institution of marriage from liberal feminists and radical marriage dissenters in the 1960s and '70s. Despite disagreements between feminist reformers and marriage dissenters, the expansionist vision of legal equality nonetheless transformed marriage law at the federal level. It then deals with divorce law at the state level and the implementation of individualist legal equality. Liberal feminists and men's rights activists successfully pushed legislators to dismantle both a wife's right to perpetual support and a husband's right to his wife's household and sexual labor.
The book's second section explains why the extraordinary achievements of this revolution in marriage were nonetheless circumscribed. Feminists' success in stripping gender distinctions out of marriage legally and culturally at first seemed to open up new political possibilities for the ordering of family life, but others worked with equal vigor to limit the scope of social change. Fears that feminism would lead to the decline of the middle-class family defeated the Equal Rights Amendment. Despite fierce organizing by welfare rights activists, state and federal governments tried to compel women on welfare into financial dependence on their sexual partners through substitute father laws. The Immigration and Naturalization Service and Congress became opposed to a citizen's right to extend his or her citizenship to a spouse and employed several strategies to prevent spouses from becoming dependent on the state. On the other hand, legislators and bureaucrats punitively enforced an extreme model of individual responsibility onto gay couples. In the midst of increasingly audible voices against gay marriage, courts deliberately broke up homosexual households through housing, welfare, and child custody policies.
The book concludes with an extended meditation on the pivotal year of 1996, when the impulses embedded in 1970s debates over welfare, immigration, and gay marriage policy all came to fruition in the form of powerful rewritings of federal policy. The Clinton administration's welfare reform in the 1990s once again allowed states to relentlessly impose "thick" breadwinning obligations on men in order to avoid granting welfare payments to families with dependent children. The INS also began enforcing citizens' financial responsibility for their former spouses and barred the poor from marrying noncitizens. And, in the same year, Congress passed the Defense of Marriage Act to prevent same-sex couples from taking advantage of any federal household benefits whatsoever. Some of this policymaking intersected in Congress; for example, a large percentage of the savings achieved by welfare reform came from purging permanent residents—some of them immigrant spouses—from the welfare rolls. Other legislation did not intersect explicitly but still reflected a cohesive, if twisted, underlying logic. Like the reforms of the 1960s and 1970s, those of the 1990s heightened distinctions based on class. Marriage for the poor imposed obligations; marriage for the privileged protected individual property rights. Thus were gender, family, and economics rewritten in late twentieth-century America.