Back in the days when there was an identifiable counter-cultural movement in the United States, feminists, gay activists, and much of the left identified the institution of marriage as the foundation of conservative American culture and therefore something to oppose, not seek. But now, with more and more gays gaining official permission to marry, the left is celebrating a right that it used to compare with the right to be imprisoned.
Those who consider themselves to be the descendants of the counter-cultural left are hailing President Barack Obama's sudden embrace of gay marriage as a great victory not just for equality and civil rights but also for freedom. Yet historically, those who invented and promoted legal marriage did so with the explicit purpose of restraining the liberty of all of us. Were Emma Goldman, Allen Ginsberg, and the drag queens who threw bricks at the cops at the Stonewall Inn alive today, they might well say that Americans have all become "the Man."
The idea that the state should promote, sanction, and regulate monogamous relationships gained currency in the 16th century as a reaction to Europe's first sexual revolution. Public, group, and what we now call homosexual sex were commonplace, prostitution was rampant and generally unpunished, pornographic books and pamphlets were widely popular, and laws against adultery and divorce went unenforced. Martin Luther and other leaders of the Protestant Reformation seized upon marriage as a means though which to curb unchristian freedoms and bring about social order.
Luther recognized that "he who refuses to marry must fall into immorality," identified marriage as "the remedy against sin," and demanded that all of humanity seek the cure "in order that fornication and adultery may be avoided as well as pollutions and promiscuous lusts."
Until then, the Church alone had recognized and overseen marriages, but Luther and the reformers wanted a more powerful and "worldly" enforcer of God's laws. Marriage, they said, belonged under the purview of "temporal government," which "restrains the un-Christian and wicked so that—no thanks to them—they are obliged to keep still and to maintain an outward peace." Moved by these injunctions, governments across Protestant Europe seized control over marriage and instituted rules to enforce it.
On this side of the Atlantic, shortly after the ratification of the Constitution, the newly-formed states, acting in their own professed self-interest, enacted laws that made it more difficult to end marriages. Typical was the view of Georgia state legislators, who in 1802 responded to their inability to stop the "dissolution of contracts founded on the most binding and sacred obligations" by drafting a law regulating divorce. According to the lawmakers, the "dissolution [of a marriage] ought not to be dependent on private will, but should require legislative interference; inasmuch as the republic is deeply interested in the private business of its citizens."
Other state governments followed that lead. By the end of the 19th century it was nearly impossible in all the states to dissolve a marriage unless one upheld what one historian has called "ideal spousal behavior" and one's spouse was adulterous, sexually dysfunctional, or chronically absent. No longer could an unhappy wife or husband simply walk away from a marriage.
American lawmakers in the 19th century widely concurred with the legal scholar Joel Prentiss Bishop, considered to be the "foremost law writer of the age" and the author of the then preeminent legal treatise on marriage, who considered "too absurd to require a word of refutation . . . the idea that any government could, consistently with the general well-being, permit this institution to become merely a thing of bargain between men and women, and not regulate it." This question gained new urgency during the Civil War, when slaves, who had no legal right to marriage, were suddenly prospective citizens. A Union officer charged with educating the freedmen testified to Congress that
one great defect in the management of the negroes down there was, as I judged, the ignoring of the family relationship . . . My judgement is that one of the first things to be done with these people, to qualify them for citizenship, for self-protection and self-support, is to impress upon them the family obligations.
The Union government required that all newly freed slaves under its care in refugee camps "who have been living or desire to live together . . . be married in the proper manner."
After the war, administrators of the Freedmen's Bureau, who were charged with making the ex-slaves conform to American norms, were ordered to coerce their charges into marriage so as to bring them into civilization:
The past marriages of freedmen, although often formally solemnized, have not been so authenticated that misconduct can be legally punished, or inheritance rightly determined. It is most urgently and plainly needful that this out growth of a by gone system should now cease. A general re-marriage (for the sake of the record) of all persons married without license, or living together without marriage should be insisted upon by employers and urged by all who have any connection with, or knowledge of such persons. They should know that, if after ample facilities have been for some time afforded, they have not conformed to this necessity of social life, they will be prosecuted and punished.
The Bureau issued "Marriage Rules" to "aid the freedmen in properly appreciating and religiously observing the sacred obligations of the marriage state." The rules not only granted the right to marry to ex-slaves but also established high barriers to obtain a legal divorce.
Dissolving a marriage became slightly less onerous in the 20th century, thanks largely to the aforementioned counter-cultural left, but the institution's state-sanctioned moral apparatus continued to keep most of us from pursuing our individual desires. As of the most recent count [pdf], 48 percent of married couples are willing to pay lawyers bundles of cash to disentangle from relationships they no longer see as serving their interests. Even today, we pay dearly for that option, not just in legal fees but also from the stigma of having "failed" at what all good Americans are expected to do.
So let us say to our gay brothers and sisters fighting for the "freedom to marry," who once led the fight for freedom from marriage: be careful what you wish for—you'll probably get it.
Thaddeus Russell is the author of A Renegade History of the United States (Free Press).
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