The Marriage Revolution

By Nancy D. Polikoff, Beacon Press. Posted April 25, 2008.

The following is an excerpt from Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press, 2008).

The cultural changes that accompanied the social and political movements of the 1960s included a revolution in sexual mores. The birth control pill, introduced in 1960, for the first time provided women a reliable means of being sexually active and avoiding pregnancy. "Make love, not war" was a refrain for a generation that questioned the authority of its elders. A sexual double standard lingered for women and men, but this was decried by second-wave feminism. The groundbreaking studies of sexuality researchers William Masters and Virginia Johnson identified women's sources of sexual satisfaction, demonstrating, among other things, that women could achieve sexual fulfillment without men. As hostility to non-marital sex decreased, legal doctrine reflecting condemnation of such sex became less tenable.

Demand for divorce also increased. U.S. courts had granted divorces since the late eighteenth century, but only on specified grounds requiring that one party be at "fault." The idea behind fault-based divorce was that divorce should be the exception, not the rule, and should be available at the option of the "innocent" party only.

One spouse's fault not only gave the other grounds for divorce, it also to a large extent determined the consequences of divorce. Adultery was a ground for divorce everywhere. Although in the mid-twentieth century a "tender years presumption" meant that mothers of young children would be awarded custody if there was a divorce, this only held true if they were without fault. Sex outside marriage rendered a mother "unfit" and cost her not only her marriage but her children as well. A woman's fault also relieved her husband of any obligation to support her. Even though a divorced woman would keep property she owned in her own name or had purchased with her own money, the rigid gender roles assigned husbands and wives made it unlikely that she had such assets. With no access to property in her husbands name, no entitlement to spousal support or child custody if she committed marital fault, and limited options for economic self-sufficiency in a marketplace rampant with sex discrimination, the consequences of extramarital sex for a women were severe.

By the 1960s, social practice was out of step with divorce law. Cohabitation became more accepted and more common as "desertion" occurred, and without divorce there could be no remarriage. The divorce rate rose, in part due to liberal divorce laws in Nevada and in other countries, where the wealthy could travel to dissolve their unions. Many couples who wanted to end their marriages manufactured grounds -- such as physical cruelty or adultery -- to get divorced. This was particularly rampant in New York, where adultery remained the only grounds for divorce until 1966.

Legal Transformations Involving Marriage and Family: Women's Equality

The law reform strategy of liberal feminists achieved extraordinary success in a series of cases in the 1970s. The first Supreme Court case to strike down a distinction between men and women as unconstitutional arose out of an Idaho statute that presumed men more capable than women of administering the estate of a person who dies without a will. When a child named Richard Reed died, his mother and father, who were separated, each sought to administer his estate. The judge appointed Richard's father. The Idaho Supreme Court held that "nature itself" created the distinction between men and women and the legislature could conclude that in general men were better qualified than women to administer estates. When this case reached the U.S. Supreme Court in 1971, the Court ruled for the first time that a sex-based statute was "arbitrary" in a way that violated the equal protection clause. The Court required the judge to hold a hearing to determine who was better suited to administer the estate.

This case was not about "family law" narrowly defined as the obligations of a husband and wife toward one another. But the law at issue was the explicit product of the gendered view of men and women under the doctrine of coverture. Writing the brief for Sally Reed, future Supreme Court Justice Ruth Bader Ginsburg protested the "subordination of women" inherent in preferring men without regard to the ability of the applicants. Reed v. Reed, decided as the demands of second-wave feminism became audible across the country, signaled the beginning of the end of legalized, formal inequality between women and men. Notably, most of the cases in the decade following concerned either sex-based classifications in family law or notions of gender with their origins in the laws of coverture. For example, two years later, the Supreme Court declared unconstitutional a law that extended benefits to married male members of the armed forces, but gave those benefits to a married female service member only if she could prove that her husband depended on her for more than one-half of this support. The scheme dated back to the 1940s and 1950s and reflected the legal reality that a husband was obliged to support his wife and corresponding factual reality, as found by the trial court that heard the case, that husbands were typically breadwinners and wives typically dependent.

The government argued in favor of retaining the distinction between men and women because of "administrative convenience." It said that because most wives were dependent on their husbands, it was cheaper and easier to presume dependence and automatically award the benefits. But because few husbands were dependent on their wives, it was appropriate to require proof of the husband's dependence before spending government funds. The Supreme Court eliminated the sex discrimination by allowing all married service members additional benefits.

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