Until Choice Do Us Part: Marriage Reform in the Progressive Era

Until Choice Do Us Part: Marriage Reform in the Progressive Era

by Clare Virginia Eby
Until Choice Do Us Part: Marriage Reform in the Progressive Era

Until Choice Do Us Part: Marriage Reform in the Progressive Era

by Clare Virginia Eby

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Overview

For centuries, people have been thinking and writing—and fiercely debating—about the meaning of marriage. Just a hundred years ago, Progressive era reformers embraced marriage not as a time-honored repository for conservative values, but as a tool for social change.

In Until Choice Do Us Part, Clare Virginia Eby offers a new account of marriage as it appeared in fiction, journalism, legal decisions, scholarly work, and private correspondence at the turn into the twentieth century. She begins with reformers like sexologist Havelock Ellis, anthropologist Elsie Clews Parsons, and feminist Charlotte Perkins Gilman, who argued that spouses should be “class equals” joined by private affection, not public sanction.  Then Eby guides us through the stories of three literary couples—Upton and Meta Fuller Sinclair, Theodore and Sara White Dreiser, and Neith Boyce and Hutchins Hapgood—who sought to reform marriage in their lives and in their writings, with mixed results. With this focus on the intimate side of married life, Eby views a historical moment that changed the nature of American marriage—and that continues to shape marital norms today.


Product Details

ISBN-13: 9780226085975
Publisher: University of Chicago Press
Publication date: 12/22/2022
Sold by: Barnes & Noble
Format: eBook
Pages: 365
File size: 6 MB

About the Author

Clare Virginia Eby is professor of English at the University of Connecticut. She is the author of Dreiser and Veblen, Saboteurs of the Status Quo and an editor of The Cambridge History of the American Novel.

Read an Excerpt

Until Choice Do Us Part

Marriage Reform in the Progressive Era


By CLARE VIRGINIA EBY

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2014 The University of Chicago
All rights reserved.
ISBN: 978-0-226-08566-1



CHAPTER 1

A Telescoped History of Marriage and the Progressive Era Debate


The United States has a distinct and complex history of marriage. But the story must begin centuries before Columbus, with the church, which has cast a long shadow on all Western conceptions of matrimony. St. Paul provides a useful starting point, for his distrust of sexuality imprinted a legacy of deep ambivalence. On one hand, Paul thought celibacy a more exalted state than matrimony; on the other, that it was better to marry than to "burn," for Hell was the destiny for those having sex out of wedlock. From the start, then, Christianity identified marriage as a compromise with humanity's lower nature. Paul also believed (perhaps begrudgingly) that marriage, if entered into, should be permanent. That view became church doctrine in AD 314, when the Council of Arles proclaimed the indissolubility of marriage. The twelfth century, when the church endorsed the doctrine of marriage as a sacrament, marks another milestone. The church's authority extended further when the 1563 Council of Trent placed marriage completely under religious (rather than civil) jurisdiction.

According to most accounts, modern conceptions of marriage begin with the Reformation. Luther declared marriage a "temporal, worldly thing" which "does not concern the church." Protestants denied the sacramental nature of marriage, while still seeing it as divinely sanctioned. According to family historian Lawrence Stone, the notion of "holy matrimony" embraced by Protestant reformers elevated marriage from the necessary evil it had seemed to St. Paul to a positive good. This redefinition also laid the groundwork for rethinking marriage's worldly purpose: a union was more likely to be "holy" if harmonious—and harmony more likely if spouses were compatible. For that reason, according to Stone, the Reformation shifted the view of marriage from serving family "interest" (e.g., advancing economic and social power), as it had for centuries, toward fulfilling individual needs for companionship.

From the beginning, the American colonies emphasized the civil over the ecclesiastical foundation of marriage, a fact that may be surprising given how much religion dominates current discussions of marriage. The legal foundation of marriage in the United States, rooted in English common law, has its own intricate history. That history has had, from the start, negative consequences for women.

Sir William Blackstone established the legal ground for the subordination of wives, a doctrine that generations of reformers, among them the progressives, would challenge. His Commentaries on the Laws of England (1766), which became foundational legal doctrine in the United States, synthesized the common law that had evolved over the centuries while extending its authority by aligning it with natural law. The key concept here is coverture, which means that, when married, spouses become "one person in law." Blackwood identifies that "one person" as neither androgynous nor sexless; rather, "the very being or legal existence of the woman is suspended during the marriage, or is at least incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything." The wife's legal identity is covered over by her husband's. Coverture underwrites what historian Hendrik Hartog calls the "legal fiction" of marital unity, "a set of imaginary 'facts' created to achieve a legal result." While a feme sole (or single woman) had, at least theoretically, legal autonomy, a feme covert had none: she lost any personal property to her husband, had almost no agency in the matter of contracts or wills, and could neither sue nor be sued. Marital unity provides the basis for the still-familiar provision that spouses cannot testify against each other in legal proceedings. And since the law reads the identity of each marital unit as male, the result was, in the words of Norma Basch, "legal invisibility" for the wife.

The Reformation weakened coverture and marital unity by encouraging wives to seek salvation independent of their husbands. Common law, however, proved resilient, surviving the Middle Ages, the emergence of capitalism, the more companionate nuclear family of the eighteenth century, and fl ourishing after transplantation onto US soil. The conclusion of History of Woman Suffrage (1888–1922), edited by Susan B. Anthony and Elizabeth Cady Stanton, that the common law was always "unjust to women" is borne out in the case of marriage.

Two US legal writers, Tapping Reeve in The Law of Baron and Femme (1816) and James Kent in Commentaries on American Law (1826 and 1830), reinforced Blackstone's conclusions. The result, explains Basch, was that state laws upheld marital unity (and thus also women's subordination within marriage) in a manner both "more subtle" than in English common law and "more ominous."

At first glance the antebellum wave of married women's property laws makes it seem as if marital unity were losing hold. In 1839, Mississippi became the first state to pass a statute allowing married women to own property; by the end of the Civil War, twenty-nine states had similar provisions. (England would not enact its first Married Women's Property Act until 1870.) These theoretical improvements, however, did not translate into much practical consequence: de facto coverture persisted long after the beginnings of its de jure dismantling. One reason for that persistence, Nancy F. Cott explains, is that judicial interpretation can vitiate the letter of a law—and judges continued to uphold common law principles favoring husbands, in effect nullifying married women's property rights. Another reason, according to Linda K. Kerber, is the tenacity of supposedly "common sense" views about husbands' sexual rights—as reflected, for instance, in the absence of any legal definition of marital rape until the 1970s. Kerber declares that coverture, "as a living legal principle, died" only in 1992, when the Supreme Court decided in Planned Parenthood v. Casey that husbands do not have power over their wives' bodies.

A controversy over whether marriage constitutes a legal contract or status has considerable ramifications for the story of progressive marital reform. The law differentiates between status (a permanent condition) and contract (a voluntary agreement that can be broken). In 1861, Henry Sumner Maine explained the consequences for family law: if family were understood to be a status, then the unit would assume primacy over its members. But if the family were a contract, the individual would prevail. Positing the family as a legal contract, then, renders it a less powerful, even less coercive, institution. Maine believed the long view of legal history demonstrated just such a shift away from the family and toward the individual. Cott clarifies an important consequence of this legal distinction: if marriage is a status, then it is a "public institution"; if a contract, marriage is a "private arrangement." Wanting to have it both ways, the United States has evolved the distinct view, according to Cott, of understanding marriage as both "a private relationship" and "a public value"—both of which remain "enshrined in legal doctrine."

While the history of marriage in the United States follows patterns established in Europe, particularly England, from the outset signs of national distinctness are evident. Blackstone defined marriage as a curious amalgam of contract and status, with status ultimately prevailing. But the American colonists, drawing from Calvinism, Anglicanism, and English ecclesiastical law, tipped the balance toward contract, a view that intensified after the American Revolution. Women's rights advocates seized on the distinction; Elizabeth Cady Stanton was among those finding "the grossest absurdities and contradictions" in calling marriage a contract while limiting spouses' right to terminate their contract by divorcing. By 1910 a former supreme court justice voiced an increasingly common position when he asserted the legal equivalence of marriage and commercial partnerships since both are contracts. Because a commercial arrangement could be terminated by mutual agreement, marriage could not, in his view, be "indissoluble."

So-called "common law" marriage, initially an extralegal arrangement, also plays an important role in marital reform. Defined as cohabitation leading to the presumption of an enduring relationship—but without any legal seal of approval—common law marriage was widespread in the United States by the early nineteenth century. In the last quarter of that century, however, common law marriage entered legal doctrine. In Commentaries on American Law, James Kent provided the rationale, asserting "the consent of the parties is all that is required." As Michael Grossberg summarizes the significance of the legal recognition of common law marriage, courts were shifting to value "practice over form." Positing marriage as an experiential and personal relationship rather than a formal, official one will become, as I will show in the next chapter, central to progressive marital reform.

A peculiarity of US marriage law derives from the "full faith and credit" doctrine, which obliges each state to accept the laws and provisions of the others. In 1776 the states assumed jurisdiction over matrimonial and divorce law, which lay the groundwork for what would evolve into chaotic inconsistencies. States established contradictory laws—for instance, regarding the age of consent and rules restricting marriageability (such as restrictions due to race or degrees of consanguinity). As a result, a couple might meet legal requirements for marriage in, say, Indiana but not in South Carolina. One landmark Progressive era case, Haddock v. Haddock (1906), provides a glimpse of the resulting confusions. In 1881 a man divorced his wife in Connecticut on the ground that she had deserted him. But eighteen years later, the wife petitioned the New York court for a divorce of her own. She claimed the earlier divorce was invalid since their residence as a married couple had been New York, not Connecticut. The New York court ruled in favor of Harriet Haddock, in effect nullifying the Connecticut decision. More to the point, New York granted Mrs. Haddock alimony—which Connecticut had not. The New York decision was subsequently upheld by the Supreme Court. Such messy situations illustrate why Basch concludes that US marital law is "an incoherent amalgam of inconsistent moral precepts based on competing ideological foundations."

Marriage assumed a distinct cast in the United States also because of nineteenth-century experiments by communitarian utopian movements. Shakers and Rappites favored celibacy, but other utopians put sexual activity at the center of reform projects that challenged existing marital mores. Robert Owen's New Harmony colonists, for instance, rejected the notion of pledging oneself to another for life; they believed that when love fades, spouses should part. Owen's Fourth of July "Declaration of Mental Independence" (1826) renounced, in addition to private property and established religion, "marriage founded on individual property"—that is, a man's ownership of his wife. While that anti-proprietary ideal would have a huge bearing on other reform movements, including in the Progressive era, Owen also helped import another utopian movement into the United States. Owen urged French novelist and politician Etienne Cabet, founder of the Icarian movement, to purchase land in Texas. The Icarians, who saw celibacy as unnatural and declared marriage obligatory, believed all marriages would become happy once society embraced true equality and fraternity. Robert Owen's marital experiments were continued by his son Robert Dale Owen, author of the widely read birth control text Moral Physiology (1830). The younger Owen considered coverture and marital unity "barbarous relics of a feudal, despotic system" and repudiated all legal powers over his own wife.

Led by John Humphrey Noyes, the Oneidan experiment lasted thirty years, longer than most utopian movements. Oneidans practiced what they called "complex marriage," whereby each member was understood as married to every other community member of the opposite sex. Believing that monogamy bred many evils (such as encouraging adultery and prohibiting people from communing with kindred souls to whom they happened not to be married), Oneidans saw their own "pantagamous" marriage as superior. Their attitudes are notable also for the emphasis placed on women's sexual satisfaction and birth control. Believing that men could climax without ejaculating, Oneidans encouraged what they called male continence to reduce unwanted pregnancies.

Andrew Jackson Davis placed marital reform at the center of an important mid-century religious movement, Harmonialism, which later evolved into Spiritualism. Drawing from the Fourierist idea of "passional attraction," Davis encouraged followers to seek their "spiritual affinities." Believing that each person had one true mate—whether encountered in this world or the next—Harmonialists affirmed a sort of super-monogamy. Davis was also a Perfectionist, which, translated into marital beliefs, meant that while marriage ties were holy, divorce remained necessary until society progressed to the higher, harmonial stage. At that point, unions between spiritual affinities would last into the next world. Davis saw divorces, therefore, as "good steps to better things" and sanctioned sexual experimentation in the interim.

Roderick Phillips concludes that the lasting impact of these intriguing marital experimenters was minimal. Not surprisingly, they provoked more opposition than support. The utopians in fact never sought to change society at large, intending their marital reforms only for the elect. Yet many of their ideas resurface in forms that would prove more widely acceptable during the Progressive era.

Due to their nonconformity with prevailing marital norms, these various dissenters were branded "free lovers" by their opponents. As a term, "free love" was a call to arms, but as a practice it was nebulous. Historian Ann Braude explains that free love is difficult to define precisely because the term was usually invoked as an insult. But two broad tenets can be discerned: on the ground of their commitment to women's emancipation, mid-century free lovers rejected marriage based on coverture; they also held individual sovereignty as the highest principle.

The free love controversy raged most famously in two series of New York Tribune articles. The first debate began with Henry James (Senior)'s review of a free love text in November 1852. Since James considered only unions based on love to be valid, he concurred that marriage would be improved by allowing unhappy couples to divorce. This mild position was enough to persuade Tribune editor Horace Greeley that James himself practiced free love. In articles that ran through February 1853, Greeley defended marriage from what he saw as attacks by James as well as by anarchist-abolitionist Stephen Pearl Andrews. The latter (who unlike James was in fact a free lover) took a more radical position, denying the state any jurisdiction over matrimony whatsoever. In 1860 Greeley repeated the performance in a series of debates with Robert Dale Owen, whom he accused of promoting free love in Indiana. Owen fired back that New York was the real den of free love (due to its stringent laws permitting divorce only when adultery could be proven which, according to Owen, thereby encouraged infidelity). The flamboyant Victoria Woodhull—publisher, stockbroker, and 1870 presidential candidate—was one of the most visible free love advocates. She campaigned for the abolition of marriage because under coverture, wives were treated as property. In an 1872 essay outing the affair of popular minister Henry Ward Beecher with one of his parishioners, Woodhull (who objected not to the affair but to the secrecy surrounding it) claimed she was "conducting a social revolution on the marriage question." Often married themselves, the vast majority of nineteenth-century free lovers were misty idealists rather than lustful decadents: they believed mistaken ideas of marriage corrupted true love.

The Church of Latter Day Saints (better known as the Mormons) provided the most significant nineteenth-century challenge to US marital norms. In 1843 founder Joseph Smith claimed to have received a revelation from God sanctioning polygyny, a practice the church initially limited to its leaders. Nine years later Brigham Young made polygyny official doctrine for all the faithful. A centerpiece of Mormonism became "celestial marriage"; while believers saw monogamous earthly marriage as contracted only for "time" (the duration of mortal life), polygynous celestial marriages were understood as contracted for "time and eternity." The national controversy over Mormonism spawned sensational novels and tracts such as the piquantly titled Polygamy or, the Mysteries and Crimes of Mormonism, Being a Full and Authentic History of this Strange Sect From its Origin to the Present Time With a Thrilling Account of the Inner Life and Teachings of the Mormons and an Exposé of the Secret Rites and Ceremonies of the Deluded Followers of Brigham Young (1904). Dedicated "to the Women of America, Whose Sympathies are ever active in behalf of their Suffering and Oppressed Sisters," this tract features vaguely salacious illustrations, one of them depicting an anthropomorphic "Mormon Octopus enslaving the Women of Utah"
(Continues...)


Excerpted from Until Choice Do Us Part by CLARE VIRGINIA EBY. Copyright © 2014 The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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Table of Contents

List of Illustrations Preface Acknowledgments Introduction Chapter One: A Telescoped History of Marriage and the Progressive Era Debate Chapter Two: The Architects of the Progressive Marital Ideal Chapter Three: Sex, Lies, and Media: Upton and Meta Fuller Sinclair’s Marital Experiment Chapter Four: Theodore Dreiser on Monogamy, Varietism, and “This Matter of Marriage, Now” Chapter Five: Organic Marriage in the Life Writings of Neith Boyce and Hutchins Hapgood Epilogue Notes Index
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