Straight (16 page)

The creation of civil marriage contracts was part of a long, slow pattern of increasing state involvement in marriage. For many centuries, weddings could be astonishingly informal and sometimes arbitrary affairs that might or might not be formally witnessed, officiated,
or written down. Even a promise of marriage or an act of sexual intercourse could be considered a binding marriage agreement. This had predictably chaotic consequences. Fraudulent, bigamous, or otherwise problematic “secret marriages” were common. Yet it was not until the Counterreformation, in 1566, that the Catholic Church instituted a policy that all marriages had to be announced in advance (the reading of banns) and conducted by a priest in the presence of witnesses, theoretically creating at least two points at which objections to a marriage could be raised. French theologian John Calvin wanted to take things a step further, proposing that all marriages be recorded by civil authorities, not merely religious ones. It was an idea whose time would come.

In 1753, England's Parliament declared its formal interest in controlling marriages in the form of what was known as Lord Hardwicke's Marriage Act. The Marriage Act required that for a marriage to be valid under English law, it had to be performed in an official ceremony by the clergy of a religion recognized by the state. All other marriages were considered invalid, and any children born from an invalid marriage were considered illegitimate. (Famously, a historical loophole meant that the Marriage Act did not apply in Scotland, which quickly became a travel destination for eloping English. Las Vegas's wedding-chapel Elvis impersonators have nothing on the blacksmiths of Gretna Green.) The state had officially started to take over the regulation of marriage—France would follow in 1792—and with it, marriage began to become a civil agreement, bound by civil law. What this meant for women was that the door had been opened, if only a crack at first, to the possibility that the law could be used to make marriage better. Before long, two areas of legal activism, divorce law and property rights, emerged as the linchpins not just of marriage reform but of a fundamental revision of the role of women in society.

Legal reforms involving marriage were eternally controversial and never uniform. Divorce proceedings became a civil matter in England as early as 1857, but double standards (both there and in other countries, including the United States) made divorce a much simpler matter for men than women until well into the twentieth century. No-fault divorce did not become a legal reality in most of the West until the late twentieth century.[
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] Before that, those who wished to divorce
a spouse had not only to allege fault but to produce proof, and women's reputations, as ever, were much more susceptible to damage than men's. Even women who desperately wanted to be rid of their marriages struggled to avoid being dragged through the mud of a lawsuit and the social disapproval that was attached to divorce. It took many years before women were able, more or less, to freely take advantage of what was technically accessible.

The problem was, of course, not entirely social. Just as marriage was and still is, divorce was, and remains, an economic issue. Even today, women who divorce are likely to find their standard of living declines, while that of divorced men goes up. This cuts even deeper because women generally retain responsibility for any children. In an era before it was possible for many women to own property or hold down paying jobs, what good would a divorce do a woman if her husband's rights to marital property meant that she would have to leave it with the clothes on her back and little prospect of more? The establishment of women's property rights that let women control their earnings and inheritances, own or rent property, make wills and trusts, and otherwise take responsibility for their own financial existence went hand in hand with divorce law in altering the way marriage worked. In the United States, states began to give wives the right to control their own property as early as 1839—uncharacteristically, the first to make this progressive move was Mississippi—but it took the rest of the century and then some for the same privilege to be extended to all American women. Some states, seeking to retain some aspects of the legal jointure provided by coverture, developed community-property laws instead. England's Married Women's Property Acts, in 1870 and 1882, firmly established married women's rights over all types of property. By giving women the legal ability to earn wages; write independent wills; inherit, keep, buy, and sell property by themselves, and so on, these laws gave married women meaningful legal personhood.

This was not universally seen as a good thing. The female free agent had always been viewed with suspicion, and on that front little had changed. Women's access to property was often qualified with trusts and other encumbrances. It was not until 1975 that it was finally made illegal in the United States for a married woman to be required
to get her husband's written permission to take out a loan or open a line of credit. Perhaps the most telling legal example of society's deep ambivalence toward egalitarian male-female relationships, though, were “head and master” laws. In some American states, wives were given the ability to control their own money and property by one set of laws, while at the same time those laws were superseded and undermined by a second set of laws that gave their husbands complete legal authority over household decisions and jointly owned property. Husbands could, and sometimes did, make unilateral decisions about major property issues, such as the sale of a family home, without wives' knowledge or consent. Only in 1981 did the Supreme Court—in a ruling on a sordid case in which Louisianan Joan Feenstra's husband, Harold, awaiting trial on charges of having sexually molested their daughter, mortgaged the family home (for which Joan had paid) without Joan's knowledge or consent in order to pay his lawyer—finally determine that such laws were unconstitutional violations of the Equal Protection Clause of the Fourteenth Amendment.[
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For all the flaws and continued bias in the legal system, though, the emergence of women as full legal beings who participate in marriage on an equal contractual basis with men changed the tone of heterosexuality. When “heterosexual” was coined in the mid-nineteenth century, women were still at a marked disadvantage to men in marriage and in society in general. They might have had more say about whom they would or wouldn't marry, and their feelings about their marriages and their husbands might have been more influential, but a woman's identity and her agency were still ordinarily subsumed by that of her father or her husband. Legal personhood changed this, making both expectations and experiences of heterosexuality more egalitarian, a dynamic in which both partners' desires and responses were crucial to the success of the enterprise.

Heterosexuality also changed in response to the increasing numbers of women entering paid labor and higher education. Women had always worked, and had always contributed in material, economic ways to the welfare of their households and families. But as more women went into industrial-age wage-labor jobs, at a time when their earnings were increasingly determined to be their own to control, the marital power picture dramatically changed. Women earned
less than men (a state of affairs that still pertains on the whole), but their economic contribution to the household was no longer viewed so much as something to which a husband was automatically entitled. Women's greater flexibility with regard to earned income also made it slightly less difficult for women to go it alone, not an insignificant thing in terms of helping to lessen the stigma of divorce.

Women's increasing access to education further leveled the sexist playing field. Men, feeling threatened on their own turf and unsettled by what seemed like a wild upsetting of sexual roles, launched a vocal backlash. “The one thing men do not like is the man-woman,” Montagu Burrows, the Chichele Professor of Modern History at Oxford, wrote in 1869. “For the young ladies who cannot obtain ‘a higher education' through their parents, brothers, friends, and books at home, or by means of Lectures in cities, let a refuge be provided with the training governesses; but for heaven's sake, do not let us establish the ‘University-woman' as the modern type.”[
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] Educated women were commonly spoken of as “degenerate” and “unsexed,” their bodies described as hairy and masculine with small, unwomanly breasts. The selfish bluestocking's refusal to content herself with domesticity and children, and her unseemly insistence on cramming learning into a smaller, softer brain that wasn't made for such things, made her an enemy of the God-fearing, normal family.

Behind this hyperbolic fear of the educated woman was a grain of marriage-resisting reality. As larger numbers of women entered colleges in the second half of the 1800s, there was a noticeable dip in the numbers who married. “From the 1870s to the 1920s,” writes Carroll Smith-Rosenberg, “between 40 and 60% of women college graduates did not marry, at a time when only 10% of all American women did not.”[
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] The reasons college women were so much less likely to marry, however, are not entirely clear. Some men surely balked at the idea of marrying an educated woman. But some of the resistance originated with the women themselves, and surely the fact that women generally had to forgo marriage in order to put their hard-won educations to professional use had something to do with it.

For those college women who did marry, getting an education meant that they typically married later than they would have otherwise. But college women were not the only ones postponing (or refusing)
marriage. As the labor market grew, and more women moved in to fill at least the lower-paying ranks of industrial workers, average ages of marriage rose to almost the levels they are at today: women marrying for the first time in their late twenties, and men a few years later.

We are, of course, used to all these things now. But if you, like most people who will read this book, have never lived in a culture where these things are not considered standard, it can be difficult to imagine just how massive the impact of women's legal personhood, economic autonomy, and education really was. Steven Seidman documents that between 1880 and 1920, the female workforce in America increased by 50 percent. By the post–World War II boom, the demand for workers had grown so much—at the same time that the age of marriage dropped—that laws and employer policies changed en masse to permit more married women to work. Over the course of the 1950s, there was a 400 percent increase in the number of mothers in the workforce.

Today, working women, whether single or married, parenting or not, are the norm, not the exception. As of 2008, according to the US Department of Labor, women accounted for 46.5 percent of the labor force.[
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] This is on par with the 46.7 percent of the global labor force that is made up of women, according to the United Nations.[
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] The business of the world, quite literally, could not continue without women workers, and this has also changed the faces of both marriage and heterosexuality. The more women have been able to afford to back up their demands for better marriages—legally, economically, and socially—the more egalitarian and less mandatory marriage has become, and the more heterosexuality has had to accommodate women's demands in addition to men's.

Autonomy is the key to all of it. In a way that simply was not true for the Victorians, who invented the concept of the heterosexual, we care deeply about agency and, in particular, about women's ability to speak for themselves. It's not enough, for most of us, to say that “obviously” God or Nature intended for men and women to have relationships. We require that the men and women
want
to be in those relationships, and that they have the option not to be in them if they so choose. There is a huge difference between perceiving sexual attractions
and acts as automatic or inevitable, and perceiving them as volitional acts and rational choices. It is now rare, in the West, for people to view different-sex relationships as inevitable or as a matter of duty. Autonomy of the individual has taken our relationships, as historian Stephanie Coontz puts it, from “public institution with private consequences” to “private agreement with public consequences.”

Heterosexuality today is for the most part understood as being a matter of individual subjectivities and preferences among peers. Men and women do not tend to consider one another automatically as superiors and inferiors, and neither men nor women are statutorily entitled to hold power over one another or obligated to submit. We tend today to view the objects of our desire as being only superficially different from ourselves. Sexism, racism, and other prejudices surely linger, but we also profoundly believe in the legacy of Enlightenment egalitarianism: that when push comes to shove, we are all of a single human kind. Without this nonhierarchical vision of humanity, in which every person is his or her own master, a heterosexuality that rests in the fulfillment of mutual personal desires could never have come to be.

TO BREED OR NOT TO BREED?

For a very long time, babies were egalitarian marriage's Waterloo. For most of human history, babies have been an inevitable part of sexual activity between men and women, and the most fundamental purpose of marriage. The profound importance of children to marriage shows itself in the infertility miracles of the Bible, all the stories of Abraham and Sarah, Isaac and Rebecca, Hannah, and others that revolve around miraculous reversals of barrenness. It is also evident in the Roman legal codes, which permitted barren couples to adopt so they could avoid dying without heirs, and in the fact that in the medieval era, impotence and nonconsummation of marriage were two of the very few grounds on which the Catholic Church would annul a marriage. The “goods of marriage” in both Catholicism and Protestantism, as we have seen, included the generation of children.

Having babies remained an essential aspect of marriage, and one of the main issues in any male/female sexual relationship, until late in the twentieth century. It should come as no surprise that our Victorian
ancestors who pioneered the concept of the heterosexual tended to think not just of women's sexual desire but of femaleness itself as manifestations of an irrepressible natural desire to bear children. As gynecologist W. Balls-Headley wrote in 1894, the “sex instinct” was the “
raison d'être
of woman's form, the expression of the cause of her existence as a woman; it is the evidence of . . . the instinctive necessity that the female reproductive cell must meet the male fecundating cell; the object is the propagation of the race.”[
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] Even plainspoken sexologist reformers like Havelock Ellis waxed rhapsodic about “the mystery of pregnancy,” a realm of human experience “where our highest intelligence can only lead us to adoration.”[
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] Pregnancy was, for most couples, the inevitable result of routine sexual intercourse and, as such, the inevitable result of marriage. Even radicals like Bertrand Russell believed in a sort of default link between marriage and children, arguing in his 1929
Marriage and Morals
that “children, rather than sexual intercourse, are the true purpose of marriage.”[
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