'Marriage as Punishment' by Melissa E. Murray in 100(2)
Columbia Law Review ( 2012) 101-168
comments that -
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used - and importantly, continues to be used - as state-imposed sexual discipline.
Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.
The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.
With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.
Murray concludes that -
In January 2010, Theodore Olson, one of the lawyers litigating Perry v. Schwarzenegger, outlined “The Conservative Case for Gay Marriage.” Speaking to social conservatives who have resisted efforts to expand civil marriage to LGBT individuals and those who are undecided about marriage equality, Olson argued that “same-sex unions promote the values conservatives prize,” including accountability, social stability, and economic partnership. For Olson, the allure of marriage equality is obvious: Marriage is a disciplinary institution and its expansion to include same-sex couples would necessarily include more people within the ambit of the state’s disciplinary reach.
Olson’s account of marriage’s disciplinary possibilities accords with marriage’s history. As this Article recounts, from the mid- nineteenth century to the mid-twentieth century, marriage played an integral role in the enforcement and administration of criminal seduction statutes. Recovering this history of marriage and seduction not only reveals the complicated relationship between criminal law and family law, it also makes clear that family law, through the institution of marriage, was, no less than criminal law, an important disciplinary force in the lives of men and women.
The history of criminal seduction offers useful lessons for the contemporary practice of marriage. Though the popular discourse of marriage focuses on the institution’s many salutary benefits, it elides more substantive discussion of its disciplinary content and punitive history. As this Article argues, marriage, like the criminal law, continues to be one of the technologies of discipline that is deployed by the state in the project of constructing and replicating a disciplined citizenry.
Recognizing and acknowledging marriage’s disciplinary qualities complicates the extant jurisprudence of rights that, most recently, has focused on the right to marry. As this Article has argued, marriage’s role as a technology of discipline requires us to reconsider the marriage right as more than simply a right of access, but rather a right of access to the disciplinary force of the state.
Reframing the right to marry and the institution of marriage along these lines would allow a more accurate depiction of marriage—one that is transparent and forthright about marriage’s disciplinary character. Greater transparency and accuracy in our discourses of marriage is important for those who seek marriage, and for those who would avoid it. Transparency not only helps illuminate what marriage is — it prompts us to think seriously about alternatives for those who would prefer to live their lives outside of the state’s disciplinary domains. Accordingly, this Article strives not only toward a more accurate understanding of marriage, but toward the possibility of sexual liberty untethered to marriage.
