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Beware of governments granting the "right" to enter onerous lifelong contracts. Thaddeus Russell | May 16, 2012
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.