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Not Just Roommates

The University of Chicago Press

Chapter One

In 1972, Michelle Marvin, an actress and cabaret singer living with but not legally married to the Hollywood actor Lee Marvin, brought a lawsuit when their six-year relationship ended. She sought alimony and half of the income Lee Marvin had earned while the couple were together. In 1975, the California Supreme Court in Marvin v. Marvin affirmed that a nonmarried cohabitor such as Michelle Marvin had the right to enter into a legal contract with her partner; previously courts had held that because cohabitation was somewhat akin to prostitution, there could be no right to contract for what were essentially sexual services. It is often claimed that the California Supreme Court decision in Marvin v. Marvin represents a milestone of the sexual revolution and surely a key one in terms of the social acceptance of cohabitation.

That's the myth of Marvin. The Marvin decision made palimony front-page news and established the right of cohabitors to make contracts in many states. However, most cohabitors did not enter into legal contracts, verbal promises proved hard to enforce, and few cohabitors sued for palimony because these suits were lengthy, costly, and hard to win. Despite the favorable ruling of the California Supreme Court, Michelle Marvin never received a penny in proceeds from legal victory. In a few states considerably more conservative than California, the Marvin decision led to rulings that contracts between cohabitors were invalid in that state. A legal victory for cohabitors adopted in most states, but not all, a contractual approach to living together fashioned by the courts turned out to be largely unworkable—that's the reality of Marvin.

On the whole, cohabitation has become a normative experience in American society. In fact, the majority of American women have cohabited at some point in their lives, and couples who do not live together before their wedding day are now the deviants. Census figures on cohabitation suggest that there may have been about 230,000 couples cohabiting in 1960. In 2010, the US Census Bureau estimated that there were 8 million cohabiting households, of which about 516,000 were same-sex couples; in addition, more than 3 million children were being raised by parents who were partnered rather than legally married. These figures show a thirty-five-fold increase in the rate of cohabitation in the space of a half century, an astounding upward climb probably unparalleled in demographic history. The spectacular growth in cohabitation and nonmarital childbearing are the least cyclical developments in family change in the last fifty years: divorce plateaued in the 1980s, the number of abortions has dropped in recent years—the growth of cohabitation and bearing children out of wedlock have proven unstoppable.

The very nature of courtship and marriage has been altered by this trend. By the 1990s, most engaged couples lived together before walking down the aisle. Between 1965 and 1975, only 9 percent of first unions began with cohabitation; between 1990 and 1995, the figure was 54 percent. By the 1990s, cohabitation had emerged as a family form for giving birth to and raising children. Indeed, many American children are now growing up with a cohabiting parent and the parent's partner. Two demographers estimated that as of 2008 almost half of all children in the United States at the time could be expected to spend some time in a cohabiting family. one can say that American attitudes followed behavior—and vice versa. The percentage of Americans who thought that living together outside of marriage was morally wrong declined from 86 percent in 1977 to 41 percent in 2001 and fell even more dramatically, to 27 percent, by 2007. The attitudes of high school seniors turned positive much earlier, reflecting the vanguard role of youth in the sexual revolution. The percentage of high school seniors who believed that living together prior to marriage is a good idea increased from 36 percent in 1975 to 70 percent in 2008. Girls were always more conservative in their attitudes than boys, but the gender gap between male and female high school seniors was closing, largely because young women were adopting a much more favorable view of cohabitation prior to marriage.

Because of these changes in attitudes, one would expect that any sanctions against living together would long ago have been consigned to the dustbin of America's puritan past. However, cohabitation has not become completely approved of. occasionally, a reporter stumbles across a law still on the books criminalizing cohabitation, fornication, or adultery, but quickly adds that the law is never enforced. But in fact, discrimination against cohabitors still exists, and couples continue to be punished for living together, despite the prevalence, even ubiquity, of these relationships. Here are seven examples for the years 2005 through 2010, when most people assume cohabitation had become completely accepted.

· A Catholic high school in Appleton, Wisconsin, dismissed a teacher because he had too much to drink and stayed overnight at his girlfriend's apartment in Green Bay.

· A trial court judge denied visitation to a divorced father in Michigan because he had a live-in girlfriend.

· The state parole board added three months to the sentence of a prisoner in West Virginia because he told them he planned to live with his girlfriend after he got out of prison.

· A mother on public aid in San Diego was convicted for welfare fraud for failing to report her abusive live-in boyfriend's income, even though he was not giving her any of his money.

· A north Carolina sheriff told a cohabiting dispatcher that she had to get married or lose her job.

· A California man was denied a job with a sheriff 's department when they found out he was living with another man.

· A couple who had been together for thirteen years and who bought a house in suburban Missouri were denied an occupancy permit to live in town because they were cohabiting.

Not a single example on this list comes from new York City, San Francisco, or Cambridge, Massachusetts, which is why living in college towns and gentrifying neighborhoods gives a false impression that tolerance for and acceptance of couples living together is universal. Although cohabitation has become commonplace and open in the United States, overt acts of discrimination against cohabitors—by employers, judges, parole boards, landlords, and localities—are still occurring, especially in more conservative regions of the country. Protection of the rights of cohabitors is largely related to geography: knowing the map of anticohabitation sentiment and politics pinpoints the hot spots in an ongoing culture war. Protection of the rights of cohabitors is also related to poverty: poor people on welfare do not have the same rights to privacy as self-supporting couples. And while poverty and geography affect the way cohabitors are treated, so does government policy; policies at all levels of government promote legal unions through a system of marital privilege in which cohabiting couples receive fewer employee and government entitlements as well as having fewer rights, such as the right to sue third parties when their partner is harmed or injured or the right not to testify against one's partner in a criminal proceeding.

The purpose of this book is to outline the features of American history, especially recent history, that explain why American law and policy have failed to accept the reality of cohabitation. This is the history of a cultural lag, a failure of beliefs, laws, and policy to keep up with changing reality and of a lack of interest or concern about that lag. This book argues that this lag is a product of the salience of marriage promotion as a traditional feature of American politics, which was revitalized with the emergence of the new Right in the late 1970s (what I refer to as the backlash against the sexual revolution or the culture wars). Cohabitation itself was unimportant enough in the culture wars that it was rarely a primary target of the clashing sides. Instead, it often became a target because it was related to other issues that were more emotionally charged. The existence of this culture war is important in understanding why, despite the growth of more open and accepting attitudes toward cohabitation, a kind of "coercive moralism" characterizes many aspects of American law and social policy toward cohabitation.

My undergraduate students are extremely interested in denial of the right of gay couples to legally marry; they have no interest whatsoever in denial of the right not to have to marry. A few lawyers, judges, and members of singles organizations believe family law must change to take into account the large number of cohabiting families because they have seen so many instances of vulnerable women and children harmed when they were denied their right to sue or were deemed ineligible for certain benefits. Some social scientists are concerned about cohabitation because so many children are being raised in what is deemed a fragile family form; cohabiting couples are more likely to break up than married couples, and cohabitation is often of shorter duration than marriage, bringing instability to the lives of children and increasing the risk of poor outcomes since some of the children of cohabiting couples will find it difficult to deal with so many changes while they are growing up.

I had no reform agenda in mind when I began my research. I was mainly interested in the ways the American family has changed since and because of the 1960s, and cohabitation seemed to be the least explored in a set of divisive new social trends, including divorce, the growth of single-parent families, and the rise of out-of-wedlock childbearing. It is only as a result of my research that I have concluded that cohabitors are indeed second-class citizens in the United States, even though most of them would shrug their shoulders at the idea. Marriage reflects and reinforces the notion of the state creating distinct classes of citizens, only some of whom receive special benefits. I include within the domain of sexual citizenship property and privacy rights and equal justice under the law; the right to political representation; the right to share in economic welfare and security; the right not to have to marry; and the right to recognition of a family form other than legal marriage. Thus, the history of cohabitation as "sexual citizenship" shows the way that policies in regard to and the punishment of sexuality have been used in creating the favored status of marriage in the United States. I agree that cohabitation can have negative consequences for some couples themselves but especially for children, because having many adults coming and going in children's lives during the early years of life increases the risk of psychological and behavioral problems in childhood and adolescence. A cohabitating partnership is usually not a stable home for a child, and all things being equal, stability is best for children. My response is not to deny that is so, but instead to make the following points. The first is that promoting marriage among cohabiting parents does not necessarily help the children. A recent review of the social science literature concludes, "encouraging marriage among at-risk populations may not translate into improved child outcomes." With that caution in mind, I take the advice of the demographer Larry Bumpass when he advocates family "policy toward the amelioration of negative consequences, rather than toward attempts to reverse the tide."

Cohabitation exists within the shadow of legal marriage; because legal marriage is the preferred state, families and the government seeks to promote it—even, I would say, coerce it. This book traces how the state, churches, and society did not simply pressure couples to get married but punished them for not doing so. Interracial or same-sex couples were not allowed to marry, but those in which the woman was pregnant were often pushed into exchanging vows. often the man could leave town to escape going to the altar, or an uninformed family might not force the matter. But marriage promotion is a very long-standing American tradition, which begins with the belief that legal unions provide a kind of secure foundation for government and society and that sexual activity and childbearing should occur only within them. The further assumption is that there is a general moral consensus, which must be upheld by the law. These views are very old, defining features of the American character and American history, present even in the American colonies. After the Revolution, politicians, jurists, and ordinary Americans regarded stable marriage as the foundation for the new republic. They believed that the success of the nation depended on a particular form of marriage—monogamous, Christian, heterosexual, and intraracial. The historian Nancy Cott writes, "observance of Christian-model monogamy was made to stand for customary boundaries in society, morality, and civilization; the nation's public backing of conventional marriage became a synecdoche for everything of value in the American way of life." The rhetoric about marriage as the foundation of the nation appears as a leitmotif in the American symphony, with only slight changes in the notes. The Supreme Court enunciated this view in Victorian language in Maynard v. Hill (1887). The Court opined that "marriage is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." In the Personal Responsibility and Welfare opportunity Reconciliation Act of 1996, popularly known as welfare reform, success rather than progress was the watchword, but the means of achieving the goal was the same. The preamble to the act stated that "marriage is the foundation of a successful society" and that "marriage is the essential institution of a successful society which promotes the interests of children."

Marriage promotion is more than a rhetorical flourish in court decisions and legislative preambles; it is ideology translated into policies that have real negative effects on cohabiting couples, their obligations, and, more important, their rights. Specifically, marriage promotion consists of four elements having to do with sanctions against cohabitation: (1) the punishment of cohabitation, including discrimination, such as in housing and jobs; (2) forcing couples living together to legally marry; (3) surveillance of cohabitors, including denial of the right to privacy; and (4) providing benefits to legally married couples that are denied to cohabitors. These elements of marriage promotion are not simply relics of an ancient past but persistent features of American law and policy up to the present day.

The punishment of cohabitation was not ancillary but central to the promotion of marriage. Punishment was first of all criminal; throughout colonial history, cohabitation was a crime; in most American states, cohabitation remained a crime, punished by a prison term and/or a fine. Cohabitation is still a criminal offense in five American states, although it appears that the last arrest for cohabitation was in 2003 (in north Carolina). Widely flouted, the criminal laws against cohabitation were also used to legitimate discrimination against cohabitors, including discrimination in housing and employment. In fact, many Americans did not want cohabitors as tenants, neighbors, schoolteachers for their children, probation and police officers, or Miss America contestants. The rationale for both the criminal punishment of cohabitation and for discrimination against cohabitors was that it was immoral (and the state had an interest in promoting morality) and that it constituted a threat to the sacred institution of marriage and therefore a threat to society. The sense of fear and threat is based on the belief that legal marriage is a relatively fragile institution, constantly under assault by people who are tempted to sin. Government, expected to embed the widely shared religious and moral principles in law and policy, was entirely justified in seeking to deter sin and uphold the institution of marriage.

Ferreting out couples who were engaged in a secret and hidden practice or who were pretending to be legally married is a second type of marriage promotion, which I call "surveillance." Cohabitors were not entitled to a right of privacy because it was believed that they were engaged in immorality that threatened marriage and public decency. They did not have to exhibit their nonconformity openly for their living situation to be brought to the attention of the authorities; many were quite discreet. Cohabiting women were ineligible for widows' pensions, from Revolutionary War pensions to Social Security survivor's benefits. Government agents fielded complaints from the public, talked to a woman's neighbors, and inspected her home to find out whether she had a man residing with her. If they found a live-in lover, she was declared ineligible for public aid. Because cohabitation was a crime, the police staked out the premises of those believed to be engaging in it. Both the police and inspectors for welfare agencies have pursued warrantless searches of the homes of cohabitors merely because a couple was living together. The evidence in this book will show that cohabitors have always had lesser rights to privacy than the general population. overall, cohabiting women of color on welfare probably have had the most circumscribed right to privacy, but the examples in this book reveal stakeouts and intrusions in the homes of cohabiting police officers and school employees as well.

(Continues...)

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Excerpted from Not Just Roommates by ELIZABETH H. PLECK Copyright © 2012 by The University of Chicago. Excerpted by permission of The University of Chicago Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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