The Once and Future Marriage

In the mid-twentieth century, America’s marriage regime was legally restructured from a public to a private institution. Whereas at the American Founding marriage was itself a facet of public life with important domestic components—public marriage—it was re-oriented toward self-fulfillment with the provision of downstream social benefits: private marriage. Over the span of several decades, no-fault divorce was adopted by governors across the nation on the grounds that the state held no meaningful interest in judging between aggrieved parties in troubled marriages. In several rulings, the United States Supreme Court established the “right to privacy,” a novel legal doctrine that constitutionally protected all sexual activity between competent, willing partners from state oversight and punishment. Marriage was, in short order, de-regulated and privatized. This, as we shall see, has profound implications for the prospects of a robust family policy in America today.

Many scholars have addressed the legal nature of marriage during the founding era, but none more comprehensively than Nancy F. Cott in Public Vows: A History of Marriage and the Nation (2000). “[T]he founders had a political theory of marriage,” Cott says. That theory was republican in nature. Marriage was a medium of social unity cleaving disparate citizens together till death did them part. As opposed to the sharp opposition between public and private life we find today, to the Founders, the marital state was where liberty, self-government, and public-mindedness would be most fulsomely practiced. This marital unit resulted, naturally, in the begetting of children (i.e., future citizens), and the domestic family was where they were elevated in virtuosity and attained the good character upon which the young republic depended. 

As marriage was ordered toward public life, the citizenry had a fundamental interest in its success. Vows were made to the broader public, and their fulfillment was secured by it. This is why, even today, marriage vows are public vows administered and recorded by a representative of the state—as opposed to, say, missives passed between lovers, or a promise made in private conversation. The common formula, “By the power vested in me by the State of New York,” fits the private marriage regime so poorly because it was originally cut for an entirely different body politic. But this was more than a matter of theory. Public marriage was undergirded by the force of law. According to Cott,

From the founding of the United States to the present day, assumptions about the importance of marriage and its appropriate form have been deeply implanted in public policy… Political authorities expected monogamy on a Christian model to prevail—and it did, not only because of widespread Christian faith and foregoing social practice, but also because of positive and punitive laws and government policy choices.

Laws against divorce, contraceptives, abortion, sodomy, polygamy, etc., were designed to protect the public nature of marriage and sex. Punishment of these acts not only preserved the Christian character of the citizenry, by defending marital unity and fostering fertility, they also guaranteed that family life was oriented outward. 

This regime broadly held across the Christian West. In the lands where the Reformation took hold, change was afoot, but less than one might think. What Catholicism had crafted, the Reformation received, with one key exception. Claiming scriptural warrant, figures like Martin Luther introduced adultery as a basis for divorce. This fault-based divorce was, from a theological perspective, doubtlessly significant. But it left public marriage structurally intact, extending the work of the judge to new terrain. Adultery, in short, had to be proven. In the following centuries, with the maturation of the nation state, this system was preserved, though public marriage was disentangled from ecclesial authorities and placed under the ambit of national legislatures and state bureaucracies.

This is the broader context for the marital system in British America and, later, the Founding era. There was, however, a characteristically American challenge to the status quo. The argument inscribed in the Declaration of Independence that a people must at times break away from an abusive tyrant quite evidently held important implications for marital dissolubility. Just as the colonies divorced from the crown, certificates of divorce should be granted to ill-used spouses “suffering from tyranny,” it was argued. And, across the states, it was. 

Still, tyranny had to be proved. In the decades that followed, fault was extended to a growing list of wrongs depending on the territory or state (e.g., cruelty, desertion, bigamy, impotence, commission of a felony, and habitual drunkenness). Divorce, nonetheless, remained rare, the proceedings long, and the height of proof hard to climb. Even into the 1950s, Cott remarks, “Divorce remained an adversarial process, in which one partner had to prove that the other failed to meet the terms set by the state.” Exceptions, as mentioned, were made; but the public interest stood firmly against widespread divorce, because marriage was the basic substance of the public itself.

The forces behind the installation of private marriage were many. But it’s also true that the Republican Party was critically involved. Ronald Reagan in 1969, when governor of California, signed the nation’s first no-fault divorce bill. Chief Justice Earl Warren (Republican) presided over a 7-2 reversal of a Connecticut Supreme Court decision in Griswold v. Connecticut (1965), making contraceptives legal, arguing that they are protected by a “zone of privacy.” The deciding opinion in Roe v. Wade (1973) was drafted by Justice Harry Blackmun and was concurred with by Chief Justice Warren E. Burger, both Republicans and Nixon appointees. The Republican Party, in sum, was essential to the formation of private marriage, the arrival of which shook the very pillars of American life by re-orienting marriage away from the public good and toward individual interest.  

[I]n the years ahead, as conservatives pursue family policy, they should begin the long fight to resurrect public marriage, the only form of marriage that orders the lives of the betrothed toward the common good.

The implications for family policy are fundamental. Put simply, the policy objective of strengthening marriage within a legal structure designed to diminish its stature is incoherent. Many conservatives pushing for family policy were dismayed in January 2022, for instance, when Republican Senator Ron Johnson of Wisconsin said, “People decide to have families and become parents, that’s something they need to consider when they make that choice,” adding, “I’ve never really felt it was society’s responsibility to take care of other people’s children.” But his sentiments logically extend from the legal nature of marriage in America today.

Under the regime of public marriage, there is no such conceptual difficulty. When the federal government under the New Deal took an active role in securing the material welfare of American citizens, it was assumed that married husbands (especially, husband-fathers) deserved precedence. The aim was to reach women and children through the portal of the husband. This gave expenditures a limiting target while strengthening marriage as an outcome. As Cott explains,

Working men’s welfare was at the…heart of New Deal domestic policies…. Attempts in federal agency after federal agency to shore up the nation’s individuals and families during the economic crisis addressed the husband-father as the principal wage-earner and citizen…. The vast majority of New Deal-instigated benefits went to men as individuals who were or would be husbands, fathers, and providers for families, and to women, if at all, as wives or widows.

Marital unity was rewarded in social security, too. A 1939 amendment boosted a man’s retirement by 50 percent if at the age of 65 he still lived with his wife. Cott explains the effect: “a married man who worked right beside a single man for the same number of years, and paid the same amount in, got 50 percent more out of the system.” More than just family policy, the New Deal gave America full-blown marriage policy. Seen in this light, the New Deal looks more like a renewed expression of the Founding’s theory of marriage, rather than the Founding’s betrayal.

But the New Deal was not the final expression of public marriage in public policy. From 1944 to 1948, a series of laws were passed, one building upon the other, to create what Allan Carlson has called “a powerfully pro-family tax code.” As Carlson recounts in Fractured Generations: Crafting a Family Policy for Twenty-First-Century America (2005), in 1944 Congress passed a law creating a uniform $500 per capita tax exemption, and then limited it only to household members related by “blood, marriage, or adoption.” This was designed, obviously, to favor married households, but it was also crafted with an eye to stimulating fertility. According to a 1944 Ways and Means Committee report, by placing no cap on the total that a given household could claim, the Act imposed a “lesser burden on the taxpayers with a large family and a greater burden on taxpayers with a smaller family.” 

This pro-family tax code was developed further in 1948 when a Republican Congress pushed through additional tax reforms over a veto by President Harry Truman that raised the per capita exemption to $600. “This meant,” says Carlson, “that a married couple with three children, earning the median national income of $3,000, would be relieved of any income tax by this provision alone.” But Congress pushed still further by introducing income splitting into the American tax code, which gave married couples the right to file jointly by summing their total income and halving it, with each spouse taxed on only the halved amount. The result was major savings for families. Marital stability increased. Divorce declined. The marriage rate reached a historic high—and fertility soared. Carlson cautiously suggests that the Baby Boom itself might have been one of the tax code’s principal effects, albeit in conjunction with other government programs. “Policy, it appeared, had been translated into family strength,” he says.

Elite America soon began to fret over its own good work and, as mentioned, support for public marriage unraveled. Numerous prominent Americans demanded that the federal government shift resources away from marriages and toward the poorest. Kennedy’s 1963 tax cut declined to increase the value of the personal exemption (and introduced a major marriage penalty into the tax code); and was re-structured to benefit the poorest Americans. 

Paul Ehrlich’s The Population Bomb (1968), a Malthusian, anti-natalist tract, well captured the feeling of President Nixon’s Commission on Population Growth and the American Future (1970), chaired by John D. Rockefeller III (Republican). In 1972, the Commission issued its report, calling for government to “neutralize…those legal, social and institutional pressures that have been mainly pro-natalist in character.” Nixon himself was strongly critical of the Commission’s findings. The Commission’s claim, nonetheless, that “no substantial benefits will result from further growth of the nation’s population,”—and that, “the gradual stabilization of our population through voluntary means [i.e., abortion and contraception] would contribute significantly to the nation’s ability to solve its problems”—cast the dye for future American policy. Roe was decided less than a year later.

Under this new settlement, family policy is structurally unable to support marriage directly. Family policy can either be designed to bring relief to the poor or to marriages indirectly through the vehicle of children (see the Child Tax Credit)—or both, but never to the family as a whole through the medium of marriage. Strengthening marriage is effectively absent as an object of public policy despite the recommendations of several venerable public policy outfits. There have been laudable attempts, of course—such as Missouri Republican Senator Josh Hawley’s Parent’s Tax Credit, which proposes to award married parents with a fully refundable credit of $12,000 (as opposed to $6,000 for single parents). 

Congress should prioritize the reintroduction of a marriage friendly tax code. It would bring relief to families and help stimulate a renewed marriage culture in America. And in the years ahead, as conservatives pursue family policy, they should begin the long fight to resurrect public marriage, the only form of marriage that orders the lives of the betrothed toward the common good. Rescinding no-fault divorce is the obvious place to start, because divorce is a state issue. It goes without saying that this would be met with ferocious resistance. Success, however, would have the long-term effect of strengthening the institution and increasing marriage rates. Strength and stability are attractive, after all. As for family policy, if what we truly want is marriage policy, then this is the road we must take.

Michael Toscano is executive director of the Institute for Family Studies.

Editor’s Note: This article appeared first at The American Conservative and has been republished here with permission. It is part of the American System series edited by David A. Cowan, which applies lessons from the history of political economy to the problems of today and is supported by the Common Good Economics Grant Program. The American System is published on The American Conservative website and has a dedicated Substack page here. You can follow them on Twitter at @TheAmSystem for the latest updates.