Wednesday, June 13, 2012

Matter of More Worth Pt. 1

Marriage is a matter of more worth
Than to be dealt in by attorneyship.
Henry VI Pt. 1 (V.5.55-56)

June is “traditionally” wedding season. So it seems like a fine time to use Shakespeare to muse about the concept of “traditional marriage.” After all, Shakespeare did get married; and the way that event came about can tell us something about this “tradition” in his day. He also used marriage as a literary trope in ways that tell us less about traditional marriage but a lot about marriage as a universal aspiration, infinitely varied in its specific manifestations, which can be a force for both profound good and misery.

Shakespeare’s Marriage: A Love Story?!

Hardly. Here are the scandalous details:
·         He was only 17 or 18 at the time, which means he’d not yet achieved legal majority and so needed Dad’s permission to go through with the deed.
·         His wife was 8 years older than he was.
·         She was already pregnant.
·         They were in such a rush that they had to short-circuit the then-mandated Church approach to getting hitched, which required reading some legal document to the congregation for at least 3 consecutive Sundays to see if anyone had a problem with the arrangement—such as knowledge that someone else had a prior legal claim to the property (aka the bride).
·         Short-circuiting the “normal” approach required that the couple get a special dispensation from a bishop willing to vouch for the marriage bond. That meant coming up with some serious cash. (Seems that such bonds were to hedge against the possibility of having to pay off other claimants should they show up and object, thereby saving the bishop from unseemly embarrassment after he’d stuck his neck out.)
·         The official records seeming to memorialize the Shakespeares’ marriage not only spelled his name two slightly different ways (no biggie) they royally screwed up the wife’s name. In one entry she was identified as “Annam Whateley” in another as “Anne Hathwey.” (She is now usually referred to as “Anne Hathaway.”)
·         At some point, not long after the birth of three kiddos (including twins), Will ditched sleepy Stratford-upon-Avon and took off for London on his own. He seems to have stayed away for a good 15 years or so.
·         Aside from the marriage and baptism records, the only other record that expressly refers to their marriage is Shakespeare’s mean-spirited last will and testament. In that document, as an afterthought, he leaves his wife “the second best bed” and nothing more.

I bet you’ll agree that these scant facts do not paint a portrait of nuptial bliss. But these details do tell us something about “traditional marriage” back in the day. Let’s compare then and now to see how much has changed:

·         Back then, for minors to get married, they needed Dad’s permission. Mom’s permission did not count because she had no legal authority. Today, states still have “age of consent” laws, which mostly set 18 as the cut off (but in liberal Alabama they’ll let you marry at 14 if the folks give their okay).
·         Back then, marrying an older woman was not illegal, but certainly raised eyebrows—unless of course she was worth a pretty penny. Today? Don’t think much has changed.
·         Back then, pregnancy was a reason to speed things along. Today, having children “out of wedlock” is still socially challenging in some quarters and economically challenging when it results in a single-parent household. But it is not hard to think of successful people who have had kids and stayed together to raise them despite the absence of a marriage license without having to wear a scarlet letter.
·         Back then, paying off a bishop could smooth the path to legitimacy. That is, money could buy you an end-run around “traditional” protocol.  Today, we don’t necessarily need to pay off a bishop. But marriage is still the only private contract that the State has to sanction to make it legally binding.  The terms, however, are not dictated by The Church (and I do mean “the” not “a”). In Shakespeare’s day, there was only one state-approved church at a time, and, arguably, The Church had more power than the State. Even so, a lot of people still want “a” (not “the”) church, temple, or mosque to give its blessing along with the State’s when they decide to get married; but many religious organizations will give the couples some flexibility in terms of picking texts, venue, timing, etc.
·         Back then, all property that a woman brought into a marriage or that she acquired during a marriage belonged to the husband as a matter of law. If the guy chose to write her out of the will, that was his prerogative. Today, the default rules vary from state to state but many embrace some kind of community property default rules. At the very least, women in recent years have been able to own property and are no longer defined as property themselves.

The take-away?

  • The objectives of “traditional [Elizabethan] marriage” were to shore up property for patriarchs, ensure legitimacy for offspring, and to get rid of daughters.
  • Contemporary marriage is easily distinguishable from “traditional marriage” in all sorts of ways.
  • Most of the ways that marriage has evolved should make us shout “Hooray.”
  • Then and now, a marriage contract will not be viewed as legal unless the State has blessed it.

Without the State’s blessing, those who merely consider themselves married in body, mind, and soul are not going to be able to lay claim to the panoply of legal rights, privileges, and obligations that the modern State affords to married couples. A couple who wants something beyond all of that squishy one-true-love-forever-and-always stuff is going to have to get the State to check the box first. But the kind of marriages that the State will approve and the way two people can go about solemnizing their new status has changed considerably.

Hmm, you say, if we just look back a few hundred years, we can see noteworthy change in this arena. So why couldn’t there be yet more change?

And that would be a good question. And because it is a good question—meaning, a legitimate question grounded in some understanding of history, facts, stuff like that—we should not be content when those resisting change declare that an institution should not change because “that is the way it has always been.”

These “We can’t change our approach to x because x has always been done this way” arguments often rest on two fallacies.

First, the argument usually relies on some very short-term notion of “always.” That is, their concept of “always” is like my 9-year-old daughter’s who often postulates that if something has happened two times in recent memory, then that is “always” the way it happens, e.g.: “We always have pasta for dinner.” And the corollary of that one is the thesis that something “never” happens because it is not happening at that particular moment, e.g.: “I never get to stay up late.”

Second, the argument-from-tradition presupposes, without analysis, that the imagined tradition is wholly desirable. Therefore, change is bad.

But with marriage, the tradition has already changed considerably since Elizabethan times. (And let’s not get started on Biblical times just yet.) Moreover, I do not see lots of people clamoring to go back, except, perhaps, those who want all civil law to be derived from Sharia law or some other religious doctrine.

You might say, Well, the “That’s the way it has always been done” argument does have some force in legal circles because the legal system is all about precedent.

That is true. Those charged with interpreting the law are supposed to be tethered by the principle of stare decisis—which is basically the legal version of the Law of Inertia. But even in the law, arguments based on precedents—even precedent that is squarely on point—can fail when the precedent reflects a view of a social institution that has not aged well. Precedents can be overturned. “Traditional” notions can be rejected. Even “traditional” notions about a tradition like marriage can be invalidated as a matter of law. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (unanimously overturning an 84-year-old precedent and finding Virginia's traditional ban on interracial marriage unconstitutional).

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