The Search for Marital Order: Civic Membership and the Politics of Marriage in the Progressive Era

The Miscegenation/Same-Sex Marriage Analogy: What Can We Learn from Legal History?

“…Research on the history of marriage has shown it to be a means of managing gender relations, racial relations, and citizenship. Work by Cott (2000), Stanley (1998), and Yamin (2005) situates marriage as an institution that has transformed significantly over time, but that has not developed smoothly from a patriarchal status relation to a liberative and egalitarian means for the state to recognize amative ties and preserve private space. Rather, it works as a public ordering device.…”

“…As Cott (2000) and Stanley (1998) note, the codification of contemporary marriage dates back to the late nineteenth and early twentieth centuries, when formal regulation spread to manage, support, and encourage traditional monogamy. These regulations corresponded with Progressive Era agendas of assimilating immigrants and applying scientific management to social problems, which in the context of marriage linked to increasing racial limits, the initiation of testing for sexually transmitted diseases, measures to encourage reproduction among the fit, and discouraged it among those whom policy makers preferred to exclude from the national polity (Cott 2000; Stanley 1998; Yamin 2005). Laws barring interracial marriage placed racial subordination at the center of a white supremacist state, while the laws that would later spark litigation over same-sex marriage assumed, rather than actively and criminally imposed, heterosexuality.…”

“…The court did not question the relationship between marriage and stable commitment or between committed relationships and child welfare. The institutionalized assumption of heterosexuality and the historically embedded use of marriage as a tool to produce and discipline appropriate heterosexual relationships had already done this analytical work (see, e.g., Yamin 2005).…”

“…While she discussed Loving (382–83), her analysis resembled Perez more in its investigation of the social, historical, and emotional significance of marriage, questioning the message sent by the limitation of marriage to opposite-sex couples. Her analysis considered marriage institutionally, taking its broader significance seriously and addressing why it has become a cultural battleground as well as a marker of citizenship (see, e.g., Yamin 2005).…”

“…Their arguments situate marriage as a crucial public institution serving the state by generating an ideal location for child bearing and raising. They also construct marriage as a gender-norming and disciplinary institution that channels and valorizes monogamous, heterosexual, child-producing relationships (see, e.g., Yamin 2005; Cott 2000).…”