Civil Rites: The Gay Marriage Controversy in Historical Perspective

This short essay, written for a volume that celebrates and reflects on Lawrence M. Friedman’s work in legal history and legal culture, explores the modern controversy about same-sex marriage through a historical lens. The legalization of same-sex marriage by five states, and the express condemnation of it by more than forty others, has reintroduced the age-old problem of non-uniform marriage laws and the complicated interactions that follow. This modern story - a challenge to traditional marriage, a divisive moral debate, and the emergence of strong oppositional forces that are stuck, at least temporarily, but perhaps indefinitely, in a kind of stalemate - is not an original one. American states have never been of one mind about the appropriate level of state control over domestic relations, and the federal government has, for the most part, steered clear. Though most conflicts involving state regulation of marriage and divorce had been resolved by the middle of the twentieth century, the battles were long, hard fought, and left an indelible imprint on family law history. In this essay, I argue that the same-sex marriage controversy re-invokes a long history of battles among states over regulation of marriage and divorce, and that lessons from these historical battles are still relevant. The lessons of history - about the legal structures produced in times of panic, the influence of social and economic pressures on law’s development, and the importance of the “separate histories of the law of the fifty states” - cannot be ignored. Nor should we lose sight of Friedman’s recurring observation that social forces, eventually, “shape the legal order.