HISTORICAL ACCOUNT 1
WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity. For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married. In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce. Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match. The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry. By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce. In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners. Taking Marriage Private (by Stephanie Coontz, professor of history at Evergreen State College and author of Marriage, a History: How Love Conquered Marriage.)

But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.

In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare. Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.

HISTORICAL ACCOUNT 2
Many on the religious right claim that marriage was a “divine institution” all along and that the state took control of marriage from the church. This is utterly false. Marriage was neither connected to the church or to the state for much of human history. A marriage basically amounted to two individuals announcing their marriage to friends and family and setting up house. There may have been a “wedding feast” as depicted in the New Testament but there was no church ceremony. Early Christian churches had nothing to do with marriage. They did not perform marriages. The first attempt by the Christian sect to take control of marriage was in 1545 when the Council of Trent announced that marriages would no longer be recognized as valid unless a priest performed them with two witnesses present. Prior to that a marriage was considered valid if two individuals merely pledged themselves to one another, regardless if anyone else knew about the matter. Martin Luther went further than Calvin and said marriage was “of the earthly kingdom” and “subject to the prince, not to the Pope.” It was the misnamed “Reformations” who brought in state control of marriage. Protestant leaders invited the state to take control of marriage. John Calvin’s “Marriage Ordinance of Geneva” required a state permit and church consecration before a marriage was recognized. This was in 1545 as well. The state did not take over marriage. First, marriage was entirely private without interference of either church or state. Catholicism started to exert control over marriage in 1545 and then the Protestant Reformations demanded that the state take ultimate control over marriage. Of course, they assumed the state would be under their control at the time. Certainly when Calvin pushed his detailed regulations of marriage onto the law books in Geneva he was, for all intents and purposes, the ruler of that poor city.