When did the US begin making laws about marriage?
February 7, 2012 4:23 PM   Subscribe

When did the US Government (State/Federal) begin making laws, and or giving benefits to married couples?

Hello Hive Mind. A friend and I are looking for when the US Government started identifying marriage as a thing. We've found that laws were being passed in the 1800s, about no interracial, or no bigamy or woman can't do anything unless married, etc.

But we'd like to know A) When the first legislation in the US that related to marriage was passed (i.e. you can't do this, or you can do this, or you get this as a result.)

And, B) When the first legislation in the US was passed that gave benefits to married couples (There are apparently over 1000 benefits that a married couple gets from the federal government.)

Thanks.
posted by SteveFlamingo to Law & Government (15 answers total)
 
Do you want to include things we inherited from the common law (and in Louisiana, civil law) system?
posted by SMPA at 4:24 PM on February 7, 2012


Neither of us have any education in law history. But, yes, I think we should include it.
posted by SteveFlamingo at 4:27 PM on February 7, 2012


Oh, also, do you want to distinguish between federal and state laws? Because federal laws in general were pretty darned scarce before the 20th century.
posted by SMPA at 4:27 PM on February 7, 2012


For starters, the Virginia Code of 1819 included a whole section on "Marriages," intended to "reduce into one, the several acts, to regulate the solemnization of marriages; prohibiting such as are incestuous, or otherwise unlawful; to prevent forcible and stolen marriages; and for the punishment of the crime of bigamy."
posted by jedicus at 4:30 PM on February 7, 2012


Neither of us have any education in law history. But, yes, I think we should include it.

Well then. So you know, most U.S. states incorporate the English common law up to some point, typically either the fourth year of the reign of James I (i.e. 1607, the year of the founding of Jamestown) or the revolution. See, e.g., N.Y. Const. § 14 (adopting the common law as it existed in New York up to April 20th, 1775); 5 Ill. Comp. Stat. 50/1 (using 1607 as the cut-off); Mo. Rev. Stat. § 1.010 (also using 1607).
posted by jedicus at 4:34 PM on February 7, 2012


Okay, first of all, you need to read the Wikipedia article about common law marriages. Britain's first civil law regarding marriage looks to be from 1753. You also want to look at the history of the treatment of married couples under tax law, from the CBO (it's about halfway down the page.)

State laws started popping up pretty early - usually this kind of thing was about miscegenation, incest, secrecy, bigamy/polygamy, clarification of property rights/inheritance stuff, and so on.

Remember that we had many thousands of years of religious rules, and at least six hundred years of canon law from the Roman Catholic church, by the time we got around to writing this stuff up in state code books.
posted by SMPA at 4:35 PM on February 7, 2012


Marriage became a thing in the US as soon as the US became a thing. The US inherited much of the English common law, including laws governing marriage. As you can see from the posts above, the English common law was adopted in much of (all of?) the colonies before the Declaration of Independence had even been written.
posted by Sticherbeast at 4:40 PM on February 7, 2012


The 1802 Laws of the State of New York also contain numerous provisions related to marriage, dower, and divorce. Basically, the colonies already had laws related to marriage, so such laws existed in the states from the get-go, even apart from the common law.
posted by jedicus at 4:43 PM on February 7, 2012


You may want to consider also that for a very long time, women had a completely whack legal position - it was pretty darned (legally) advantageous to be a widow in many situations, but you were effectively physical property if your husband was still alive. The "benefits" of marriage accrued largely to one partner, basically. This varies by time period and jurisdiction, and was mostly fixed by the 1920s (at least in the law books.)

But for example, in the late 19th century, local laws generally forbade married women from being employed as teachers - single women and all men were OK (as long as they met an often exasperatingly strict list of other requirements, mostly pertaining to character and moral behavior.) I suspect the first "no married women" laws showed up in the 1840s, but it's surprisingly difficult for a casual search to turn up - I mostly think the 1840s because of the history of school systems in America.

It does not help that every article about female teachers who abuse their students apparently requires the term "married" to be repeated as often as possible. Grr.
posted by SMPA at 4:45 PM on February 7, 2012


Neither of us have any education in law history

I recommend A History of American Law. It's comprehensive but aimed at the layperson.
posted by jedicus at 4:45 PM on February 7, 2012


Thanks, you've definitely given us the right info. Now we're tumbling down the wiki-hole in the direction of income tax and marriage. Thanks for the help.
posted by SteveFlamingo at 4:56 PM on February 7, 2012


When the first legislation in the US was passed that gave benefits to married couples (There are apparently over 1000 benefits that a married couple gets from the federal government.)

Umm... what? I think you need to clarify exactly what it is you're looking for.

If you mean benefits for government employees extending to spouses of government employees, that's been going on just about as long as employers started habitually offering benefits packages on top of normal salary, which is to say the 1940s. But that really only affects government employees, not married couples as such.

If you mean tax advantages to being married, those who have suggested you look into the development of income taxation are on the right track.

If you mean cash money given to married couples but not to single people, just because they're married... I don't think that's ever been true. It certainly isn't now.

But, more generally speaking, you need to narrow down on what you mean by "law". There are four kinds of law in the American legal system: constitutions, statutes, regulations, and case law. There are state and federal versions of all of these. Where they conflict, the federal versions control. Constitutions are just that: constitutional documents. Statutes are laws passed by legislatures. Regulations are rules promulgated by administrative agencies, like the DEA, FDA, FCC, EPA, etc. Case law is the body of decisions handed down by appellate courts. All of these are "laws," but they work in different ways. But it turns out that, other than constitutions, which don't change all that much and serve as foundational documents more than anything else, it's possible to have a particular issue settled by any of the other three.

Turns out that a huge chunk of the American legal system was controlled almost entirely by case law until about the 1950s. Administrative law didn't even really exist until then, and the codification movement, i.e. the effort to make statutes out of the common law, really only started to get traction in the early twentieth century, and picked up steam around the 1950s. So marriage, as such, was significantly a creature of common law for most of American history. Even those few statutes that touched on it really only served to modify or codify the common law, and they still left significant chunks of doctrine uncodified.
posted by valkyryn at 5:52 PM on February 7, 2012 [1 favorite]


SteveFlamingo: (There are apparently over 1000 benefits that a married couple gets from the federal government.)

valkyryn: Umm... what? I think you need to clarify exactly what it is you're looking for.

If you mean benefits for government employees extending to spouses of government employees… If you mean tax advantages to being married… If you mean cash money given to married couples but not to single people, just because they're married...


"Over 1000 benefits" refers to a list compiled by the General Accounting Office of rights and benefits related to civil marriage. According to Lambda Legal and MarriageEquality.org,
The list includes thirteen categories of rights and benefits, including:
  • Social Security and Related Programs, Housing, and Food Stamps
  • Veterans' Benefits
  • Taxation
  • Federal Civilian and Military Service Benefits
  • Employment Benefits and Related Laws
  • Immigration, Naturalization, and Aliens
  • Trade, Commerce, and Intellectual Property
  • Financial Disclosure and Conflict of Interest
The full list, last updated in 2004, is available as a PDF from the GAO's website.
posted by Lexica at 6:43 PM on February 7, 2012


"Remember that we had many thousands of years of religious rules, and at least six hundred years of canon law from the Roman Catholic church, by the time we got around to writing this stuff up in state code books."

If "we" is the U.S., not so much with the Catholic canon law, given that our common law (which governed marriage generally) was inherited from England, which separated from Rome over the period of 1534 - 1559. (Roanoke was settle 1585 and Jamestown 1607. Their charters were not created under Catholic canon law.) It wasn't until the Council of Trent (1545–1563) that marriages had to be witnessed by a priest in the Catholic Church -- prior to that they were performed according to "local custom" -- and this law was therefore NEVER applied in much of Europe that had already become Protestant and was not widely observed in the colonies generally. Starting in 1753 marriages in England and Wales required Church of England priest for everyone but Jews and Quakers.

I'm not sure what "many thousands of years of religious rules" means, given that religions typically weren't terribly organized prior to 900 unless they were smallish state organs (thus rendering it arguably an issue of national law); in Europe, especially given that (except for the very wealthy where land and taxes were at stake), Christianity managed to functionally ignore marriage for almost 1000 years, and in many places in many parts of the world marriages, being primarily economic arrangements, were governed by law and social custom rather than religion per se (although religion could be wrapped up in law and social custom). Marriage was considered one of the lesser sacraments and developed late; it was generally done according to local custom until the Council of Trent. Prior to then weddings done at a church building were typically performed on the church porch, not in the building -- it wasn't holy enough to be IN the building. (Here's another fascinating tidbit for you -- Protestants in North America got married at home until really quite recently; Mary Lincoln apparently threatened to go marry Abe Lincoln at the church, which only low and loose women who had no social standing/family or whose family disapproved of the match did, in order to get her family to bless the wedding and allow her to have it at home as was proper.) The whole "church wedding" thing is really quite a new idea.

Anyway, yes, most of the ideas about marriage are inherited from the English common law, which ultimately comes from customs, and much of which is eventually codified, generally when someone thinks someone needs protecting.

Family law is one of the areas, in the U.S., that is traditionally governed by the states and not the federal government. (There are federal laws, of course, but most things you want to know about family law are a 50-state smorgasboard type of thing, not a neatly unified federal law type of thing.) You will also want to look into property law, since a lot of marriage's benefits come from shared ownership of property -- at least, the part where the husband owns everything and the wife gets to use it. Many U.S. states didn't pass Married Women's Property Acts until 1900ish. Because married couples are traditionally an economic unit, they traditionally shared financial risks and rewards; an interesting recent development is that with the new laws insisting that individual income be considered for credit cards (to prevent college students from getting huge limits on the back of parental income when they have none themselves), stay-at-home parents have been denied credit cards because they have no income -- traditionally, spousal income was considered as a unit.

Another benefit (I guess?) that I don't see mentioned above is that prior to the development of DNA testing, a husband was considered the father of anything that came out of his wife's uterus while they were married -- even if he didn't want to be, or even if the wife (or an outside male) didn't want him to be. That remains the presumption in U.S. law and it can be quite difficult to rebut.
posted by Eyebrows McGee at 5:48 AM on February 8, 2012 [2 favorites]


You might also want to google "legal rights of marriage" and "legal duties/obligations of marriage" -- I know "benefits" is the language of the political movement for marriage equality, but the legal language will more often focus on rights and duties than benefits. (And many of them did not have laws passed per se -- they just "are," from custom immemorial, although they almost certainly have case law about them. They are generally considered natural rights the law PROTECTS rather than legal rights the law CREATES.)
posted by Eyebrows McGee at 5:53 AM on February 8, 2012 [1 favorite]


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