Sex & Relationships

The Marriage Revolution

How the law changed to accommodate evolving sexual practices and gender roles.
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.

The 1975 the Supreme Court heard the case of Stephen Wiesenfeld, whose wife, Paula, had died in childbirth. Their child was entitled to receive social survivor's benefits as a result of Paula's death, but Stephen was not; a surviving mother could receive benefits after the father's death, but a surviving father could not receive benefits after the mother's death. This sex-based classification had been included in amendments to Social Security enacted in 1939 when it was a "generally accepted presumption that a man is responsible for the support of his wife and children." The Court found that the purpose of the benefit was to allow women to forgo paid employment and stay home with their children. By focusing on the interest in providing a child with a stay-at-home parent after the other parent died, the Supreme Court concluded that it was irrational, and therefore unconstitutional, to provide the benefit only to surviving mothers. In 1977 the Supreme Court found sex discrimination in another Social Security resolution, this one providing survivor's benefits to all elderly widows, but to elderly widowers only if they had been receiving more than one-half of their support from their wives.

Some Supreme Court cases decided in the decade after Reed lay within the realm of family law. In a Utah case, the law eliminated a parent's obligation to support his daughter at eighteen, and his son at twenty-one. The state supreme court upheld the law based on the belief that "the main's primary responsibility (is) to provide a home and its essentials for the family," and the extra education or training enabled by the requirement of parental support until twenty-one would facilitate that. The U.S. Supreme Court reversed. In 1979, the Court invalidated the sex-based classification in an alimony statute that denied husbands the opportunity to get alimony from their wives, and in 1981 in invalidated a Louisiana that made the husband "head and master" of the household and thus gave him the power to dispose of all community property without his wife's consent.

These cases made progress in achieving formal equality through elimination of sex-based classifications. Although the law today does allow some sex-based distinctions, it permits none of the distinctions once linked to the gendered nature of marriage. As a result of the Supreme Court decisions, all benefits and obligations once tied to the legally mandated dependency of women upon their husbands have been eliminated or expanded to include both spouses. Both have a right to request alimony; both have the right to manage community property; both are entitled to survivor's benefits under Social Security and worker's compensation laws.

Feminist efforts resulted in gender neutrality superimposed on a set of laws grounded in the gendered nature of marriage. The resulting regime singles out marriage for special treatment, but only as a byproduct of the remedy for ending gender inequality, not as a reasoned conclusion that marriage entitles people to special treatment that other relationships cannot claim. In other words, the special treatment accorded marriage in family law, social security, employee benefits, and other critical areas masks the original purpose of those areas of law.

Alimony is a good example. Alimony enforced a husband's obligation to provide lifelong support to his wife. He had to assume this obligation as marriage because she lost the ability to support herself. He could be relieved of his obligation only if she died or, in the rare circumstance of divorce, if she married another man who assumed responsibility for her support. Feminist success in achieving formal equality eliminated the gender component, and now, where appropriate, either a husband or wife may seek alimony, even though neither spouse loses the ability to support himself or herself when marrying and easy divorce means that whatever obligations spouses have toward one another are not inherently lifelong.

Formal equality for women made alimony gender-neutral, but did not detach it from marriage. Yet the justifications for alimony today are completely different from those of the earlier, gendered era. Contemporary justification for ongoing support after a relationship dissolves rests on the economic consequences of one person forgoing individual financial stability while making uncompensated contributions to a family. This may occur whether the couple is married or not married, and there is no principled basis for restricting support awards today only to husbands and wives.

Reprinted from Beyond (Straight and Gay) Marriage: Valuing All Families under the Law by Nancy D. Polikoff.

Copyright © 2008 by Nancy D. Polikoff. By permission of Beacon Press.