Publication Date

July 1, 2013

Perspectives Section




Most Americans saw the US Supreme Court’s decision in Windsor, which overturned the Defense of Marriage Act (DOMA), solely in terms of questions about the legalities of same-sex marriage. To be sure, Windsor is a landmark case for gay marriage. But a broader historical perspective suggests that Windsor is about much more. Both the decision and the discussion surrounding it capture a broader legal and cultural transformation in the meaning of marriage for all Americans. In the 19th century, the legal institution of marriage took away the rights of women who entered into it. Now, in the 21st century, it is possible to talk about marriage as an affirmation of rights. More than that, marriage is now about the dignity, freedom, and equality of women as well as men, be they gay or straight.

In the 19th century, jurisdiction over marriage belonged to the states. While the court’s decision in Windsorupheld the states’ authority, any similarity to the past ends there. In the 19th century, marriage imposed legal rules with which most Americans would now take issue. In fact, it is hard to imagine many 21st-century Americans-gay or straight-fighting for the right to enter into a 19th-century marriage. Marriage then performed an act of alchemy, turning individual men and women into husbands and wives, legal statuses with particular, and particularly rigid, meanings. The transformation of individuals’ legal identities also had broader social effects, institutionalizing inequalities between men and women. Crucial in this regard was the doctrine of coverture, which consolidated a couple’s legal identities and made the husband the legal representative of the two. In so doing, coverture stripped the wife of the rights she could exercise as a single woman and left her subject to her husband’s authority. When she assumed the legal status of wife, she ceased to be a legally recognized individual, a situation that led to characterizations of coverture as a kind of legal death for wives. In the nineteenth century, coverture was so much a part of the fabric of marriage that it was impossible to separate the two either in legal or cultural conceptions of marriage. Getting married triggered both the legal rules and all the related cultural expectations.

To be sure, the rules of coverture changed over time. But, as recent scholarship suggests, they took on particularly rigid forms in the first decades of the 19th century. Husbands acquired both obligations and rights. As husbands, men were to provide economically for their wives and to represent their wives’ interests in law and other public matters. Those obligations then augmented husbands’ claims to civil and political rights. In the logic of early 19th-century law, a husband required those rights to fulfill his legally prescribed role.

For wives, marriage meant the assumption of obligations and the surrender of most of their rights. Wives lost the right to enter into contracts, to initiate legal proceedings, or to own property. They also acquired the legal obligation to obey their husbands. Husbands answered primarily to the authority of local, state, and federal governments; the primary authority in a wife’s life was her husband. As such, wives accessed law and government only through their husbands. The implications are perhaps best represented in the legal latitude allowed husbands in the physical “discipline” of their wives. It is no wonder that women’s rights advocates in the 19th century sought to separate marriage from coverture.

The laws of coverture were possible because of a larger cultural milieu in which women and men were not equal, within marriage or outside it. At the same time, however, many Americans in the 19th century considered marriage emblematic of the best in human relationships: a partnership born of love, maintained with care, and representative of the support and companionship that people hoped would carry them through life. Those positive conceptions of marriage might seem at odds with the rules of coverture to people today. Not so in the 19th century. At that time, equality-in the ways we imagine it today-was not thought necessary to a successful, loving partnership between a husband and a wife. Indeed, the tight fit between legal and cultural conceptions of marriage explains why it was so difficult to dismantle coverture. The affirmation of wives’ legal rights was essential in that outcome. But so were social, economic, cultural, and political changes that made it possible to see men and women as equal individuals, even in marriage, rather than unequal husbands and wives.

Windsor suggests how far we have traveled. The decision casts marriage as a partnership between two individuals. Noticeably absent is the kind of structural inequality that once defined marriage, in which one person occupied the role of husband (a legal individual with full civil and political rights as well as legal authority over a wife) and the other person occupied the role of wife (who surrendered rights and accepted a position of legal subordination). That is why the rhetoric of gay marriage proponents and of the decision inWindsor can link marriage so directly to rights: marriage is no longer an institution that produces inequality. It can be between two men, two women, or a man and woman, because those people are entering into a relationship of equality. Indeed, gay marriage accentuates and hastens those changes by further severing marriage from the inequalities of the past, inequalities tied to notions of marriage as a legal union that turned men into husbands and women into wives.

That said, the past is still with us. DOMA was meant to restrict gay marriage. Yet the text of DOMA also links those restrictions to a view of marriage that looks back to the 19th century-a view that locked men and women into an unequal legal relationship. Marriage, according to DOMA, is “a legal union between one man and one woman as husband and wife.” A broader historical perspective suggests that what DOMA supports is as important as what it rejects. More to the point, DOMA and its proponents reject far more than gay marriage. At issue are the changes in the roles of husband and wife that have released men and women from the rigid expectations of the 19th century. That situation may also help explain the emotion and commitment of those who oppose gay marriage. For them, it’s not just about gay couples; it’s also about the extent to which their own identities are owed to 19th-century notions of husbands and wives.

-Laura Edwards is professor of history at Duke University, and was one of many historians who signed onto the historians’ amicus brief on marriage submitted to the Supreme Court.

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