A Selective History of Marriage in the United States

— Jill Shenker

THIS TIMELINE OFFERS some context for the current historical moment, looking at the development of marriage with specific attention to race, class, gender, immigration and sexuality. This timeline was compiled for COLAGE.

1691: Virginia enacts a law stating that if a white person (bond or free) marries a person of color (Negro, mulatto, or Indian), the couple will be banished from the colony. Banishment means almost certain death in the woods.

1724: Article VIII of the Louisiana Black Code forbids marriages between slaves without the consent of the slave master.

1769: American colonies based their laws on the English common law, which said, “By marriage, the husband and wife are one person in the law. The very being and legal existence of the woman is suspended during the marriage, or at least is incorporated into that of her husband under whose wing and protection she performs everything.”

1787: U.S. Constitution signed.

1839: The first state (Mississippi) grants women the right to hold property in their own name, with their husbands’ permission. By 1900 all states had legislation granting women some control over their property and earnings.

1855: In Missouri v. Celia, a Slave, a Black woman is declared to be property without a right to defend herself against a master’s act of rape.

1865: The Mississippi Black Code prohibits Blacks from marrying whites, punishable by life imprisonment.

1875: Page Law ends the arrival of Chinese women immigrants based on the fear that Asian immigrants would either begin to form families in the United States, or that “those who didn’t have the protection of a man might become a prostitute.”

1917: The Immigration Act of 1917 bans all Asian immigration and bans “Psychopaths, Inferiors, and ‘people with abnormal sexual instincts.” Under this law lesbian and gay immigrants were officially excluded from coming to the United States until 1990.

1918: New York v. Sanger allows doctors to advise their married patients about birth control for health purposes. It wasn’t until 1965 that all state laws prohibiting the prescription or use of contraceptives by married couples were overturned.

1920: “Ladies Agreement” ends the arrival of Japanese and Korean picture brides. European women are also affected — they were banned from entry if they could not show that either a man or a job was available.

1924: Immigration Act of 1924 establishes quotas that even more heavily favor Northern and Western European immigrants. Immigration from Asia is banned, including wives and children of Chinese Americans.

1948: In Perez v. Sharp, California Supreme Court becomes first state high court to declare a ban on interracial marriage unconstitutional. In 1967 the U.S. Supreme Court, in Loving v. Virginia, overturns all state bans on interracial marriage, declaring that the “freedom to marry” belongs to all Americans.

1965: Immigration Act eliminates race, creed and nationality quotas as basis for admission to the United States. The act stressed family reunification and awarded 3/4 of immigration slots to relatives. “Family” is based on strictly heterosexual and nuclear ties. Law explicitly bans lesbians and gays as “sexual deviates.”

1969: California adopts the nation’s first “no fault” divorce law, allowing divorce by mutual consent.

Early 1970s: Development of the current religious right movement.

1973: First battered women’s shelter opens.

1980: INS announces new policy on homosexuality: If an immigrant admitted that s/he was homosexual to an INS inspector, s/he is excluded. If a homosexual person denied that s/he was homosexual, but was later found out, s/he could be deported for perjury.

1981: Kirchberg v. Feenstra overturns state laws designating a husband “head and master” with unilateral control of property owned jointly with his wife.

1990-96: A series of articles are published in LGBT and mainstream journals advocating for marriage of same-sex couples to become a national priority in LGBT organizing. The authors of these articles were gay conservative white men who saw marriage as a way to make the LGBT community more “respectable.”

1990: Congress repeals ban on gay and lesbian immigration by removing homosexuality as a reason to disqualify foreigners from immigrating, or even visiting the United States.
1993: All fifty states have revised laws to include marital rape.

1993: Hawaii Supreme Court rules that prohibiting same-sex couples from marrying may violate Hawaii Constitution’s ban on sex discrimination, and can only be upheld if prohibition is justified by a compelling reason — in 1996 no compelling reason is found. In 1998, before the HI Supreme Court can issue a final ruling, the voters amend the state Constitution to allow state legislature to restrict marriage to men and women only. Hawaii couples’ lawsuit comes to an end.

1994: Gays and lesbians qualify as a particular social group for purposes of U.S. asylum law.

1996: The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) is the first federal law to explicitly promote marriage and encourage the formation of two-parent [heterosexual] families.

1996: Defense of Marriage Act (DOMA) (a) defines marriage under federal law as exclusively heterosexual (between one man and one woman); and (b) declares that states are not required to recognize same sex marriages performed in other states.

1998: Arizona passes Covenant Marriage legislation, under which heterosexual couples promise to stay married for life and renounce their legal right to a no-fault divorce. Florida becomes the first state to mandate high school seniors to take a marriage and relationship skills course before graduation through the Florida Marriage Preparation and Preservation Act.

1998: In May, Alaska trial court rules that choosing a marital partner is a fundamental right and can’t be interfered with by the State absent a compelling reason. In November of that same year, voters amend Alaska Constitution to require that all marriages be between a man and a woman, effectively ending Alaska couples’ lawsuit.

1999: Vermont Supreme Court rules that same-sex couples are entitled, under the Vermont Constitution, to all of the protections and benefits provided through marriage. In 2000, Vermont legislature passes and Vermont Governor signs a law creating civil unions for same-sex couples, giving these couples all the rights and benefits of marriage under Vermont law but not marriage licenses.

2000: Arizona passes a Marriage Initiative that allocates $1 million Temporary Assistance for Needy Families (TANF — welfare) for marriage skills courses provided by community-based organizations (often churches).

March 2000: Oklahoma Governor announces a $10 million plan to encourage marriage and reduce divorce. Other states continue to follow this example and in 2004 Congress will vote on whether or not to include “marriage promotion programs” in welfare reform nationally.

2001: Gay and lesbian couples from Massachusetts file state court lawsuit seeking the right to marry. On November 18, 2003 in Goodridge v. Department of Public Health, the Massachusetts Supreme Court holds that barring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. Marriage licenses first issued to same-sex couples in MA on May 17, 2004.

April 2001: Last chance for persons who entered the United States without being inspected by an INS officer, who have ever been unlawfully employed or who failed to always maintain lawful status in the United States, to apply for an adjustment of their status. Since 2001 these people must leave for 3-10 years to be eligible to get permanent residency or U.S. citizenship even if they have a spouse or close relative who is a permanent resident or citizen.

June 26, 2002: Seven New Jersey lesbian and gay couples sue in New Jersey state court and demand their constitutional right to marry.

2003: In Lawrence v. Texas, the U.S. Supreme Court strikes down last remaining anti-gay sodomy laws in Texas and other states.

2003-2004: The Federal Marriage Amendment (FMA) is proposed and defeated in Congress. The FMA would have denied marriage rights to same-sex couples by adding the following two sentences to the U.S. Constitution: “Marriage in the United States shall consist only of the union of a man and a woman.” “Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Similar amendments have been added to, and proposed for, state constitutions around the country.

Sources:

  1. Beyond Gay Marriage, 1999, Michael Warner; Challenging White Supremacy Workshops timeline of “Racism and the Rise of the Right”
  2. “Civil Rights: A Chronology,” http://virtual.clemson.edu/groups/womenstudies/ws301/cvlrttab.htm;
  3. Lambda Legal Defense and Education Fund: http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1067;
  4. National Black Justice Coalition, “Timeline on Blacks and Marriage Equality:” www.nbjcoalition.org;
  5. National Network for Immigration and Refugee Rights, BRIDGE (Building a Race and Immigration Dialogue in the Global Era) Curriculum: www.nnirr.org;
  6. Timeline of Legal History of Women in the United States, http://www.legacy98.org/timeline.html

ATC 112, September-October 2004