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Marriage. The Institution. Marriage varies over time, across cultures and religions. We learn much about origins and purposes of contemporary marriage from the symbols and ceremonies of weddings…. The bride wears a white wedding gown. The bride carries flowers. Father gives bride away.
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Marriage The Institution
We learn much about origins and purposes of contemporary marriage from the symbols and ceremonies of weddings…
The couple vows to “love, honor, cherish”…and the woman vows to “obey”
The couple exchange rings, though sometimes only the bride wears a ring, and usually only the bride wears an engagement ring
Thus ... marriage, as an institution of the state, is about • property exchange • legitimate sex • and the offspring of that sexual relationship – legitimate heirs, property
Ancient • marriage as union between man and a woman for purpose of insuring man that woman's children were his children --legitimate heirs • to give her status of wife (vs. lower status of concubine) • made wife the property of husband • double standard of adultery
Patriarchal family provided structural model • man’s absolute authority over children - power of life and death over children - power to commit infanticide - give daughters in marriage or consecrate them to the temple • could pledge his wife, concubines, children as pawns for his debt • Patria potestas
2 basic assumptions 1) male kin have right of disposal over their female relatives 2) man’s wife and children are part of his property to be disposed of as such
Conditions of women from law codes • patrilineal descent • inheritance rights of sons • male dominance in property and sexual relations, military, political, and religious bureaucracies
Women restricted much more than men Of 282 law in Code of Hammurabi, 73 on marriage and sexuality Legal Regulation of Sexual Behavior
Marriage Laws Many laws surrounded exchange of gift or money which sealed marriage • betrothal gift • bridal gift • dowry –after marriage consummated • passes from mother to son - her financial maintenance after death - in case of divorce or if she did not bear sons , dowry is returned to her father or brothers
Husband’s legal obligation to support wife free to commit adultery with harlots and slave women Wife’s legal obligation perform her economic role virginity a condition for marriage, and any marriage arrangement could be cancelled if she was found not to be a virgin owed absolute fidelity to her husband Institutionalization of double standard
Laws of AdulteryCode of Hammurabi • Adultery only possible by wife • Violation of husband’s property rights • Punishment drowning for both wife and adulterer • unless husband decides to let them live • Must be decided by court - increase in state authority over sexuality
Hebrew Men complete sexual freedom within and outside of marriage free sexual use of concubines and slave women polygamy widespread Hebrew Women virginity expected of bride wife owed husband absolute fidelity Hebrew Marriage Laws
Hebrew Law • Adultery only possible by wife • Offenders brought to court and put to death • Mode of punishment - public execution by stoning
Divorce Law • Divorce easily obtained by husband - merely had to make public declaration • Difficult if not impossible for wife – completely denied in Hebrew law
Canon Law • only sex that was not sin - uncontracepted sex in marriage • for Christians, one place for licit sex was marriage • only procreative sex was licit
English Common Law • marriage was contract based on voluntary private agreement by man and woman to become husband and wife • marriage viewed as basis of family unit and vital to preservation of morals and civilization • husband had duty to provide safe house, pay for necessities; live in house • wife had duty of maintaining home, living in home, having sexual relations with husband, rearing couple's children
Vestiges in US Court Opinions • marriage always between man, woman, and state • "the most important relation in life" • "having more to do with the morals and civilization of a people than any other institution" Walton v. Walton
Law of Coverture • "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs every thing; ...and her condition during her marriage is called coverture."
Under coverture wife could not… • own property - all wages, any inherited wealth, became the husband's • make contracts • write wills • sue or be sued in court - including initiating divorce • refuse sexual relations with her husband - legal rape excluded husbands • obtain custody of children in case of divorce • be responsible for her actions • husband had responsibility for her conduct -- duty to reprimand her, even physically
Physical chastisement of wiveslegally sanctioned • State-inflicted chastisement - public floggings, tearing out of breasts, cutting out of nose, ears • Husband-inflicted “man may scourge his wife, pluck her hair, may bruise and destroy her ears”
Married Women’s Property Act • gave increased rights to married women to control their own property • gained right to sue for divorce, as well as to custody of children
Legal Restrictions on Marriage • One living husband or wife a time • Age • Non-consanguinity • Good mental capacity • Being of opposite sex
Feminists questioned why gays wanted to be part of this patriarchal institution
Want social recognition of partnership • Want legal recognition – rights, privileges, restraints • Want spiritual blessing and community
Rights and Privileges of Marriage • inheritance of portion of estate of spouse who dies intestate • preference in being appointed as personal representative of spouse who dies • right to bring lawsuit for wrongful death of spouse • right to bring an action for loss of consortium • right to workers' compensation survivor benefits • right to spousal benefits guaranteed to public employees • opportunity to be covered as spouse under group insurance policies • right to claim evidentiary privilege for marital communications • homestead rights and protections • presumption of joint ownership of property and concommitant of survivorship • hospital visitation and other rights incident to medical treatment of family member • right to Social Security benefits • survivor's benefits for spouses of veterans • immigration privileges • tax privileges • credit access • rights in relation to children - children considered "legitimate" • privileged access to reproductive technologies - both to aid and curtail • preferred clients of adoption services • gain access to, taking care of, signing consent forms for spouses in bureaucratic institutions like hospitals, treatment centers, nursing homes, prisons • right to receive and obligation to provide spousal support, maintenance,and property division in event of separation or divorce
So state is making clear the legal definition of marriage • Defense of Marriage Act (1996) • defines marriage as "only a legal union between one man and one woman as husband and wife" • no state required to give effect to public act of another State respecting relationship between persons of same sex that is treated as marriage
