Reconstructing Law and Marriage

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The Good Society, Volume 11, Number 3, 2002, pp. 57-67 (Review) 3XEOLVKHGE\3HQQ6WDWH8QLYHUVLW\3UHVV DOI: 10.1353/gso.2003.0002

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P U B L I C V O W S B Y N A N C Y F. C O T T

Reconstructing Law and Marriage Peggy Cooper Davis and Carol Gilligan Feminists have long known that patriarchy begins and lives union as the willing subordination of individuals and states to at home in hierarchies consisting of male “household heads” and principles and political structures of their own choosing. And subordinate women and children. And feminists have long known this willing subordination was regularly likened to the subordithat these domestic hierarchies are enforced by law as well as nation of a wife to her chosen mate. The idea of choice was by custom. Nancy Cott’s wonderful book gives us new clarity important to the success of the marriage metaphor. The suborabout how—and how very pervasively—that enforcement is dination of women in marriage was justified both by the peraccomplished. ceived capacities of women and men and by the fact that marital In many respects, Cott’s achievement lies in the subtlety of status is freely chosen. Women, knowing their rightful place, her analysis. The conspicuous, and now undone, laws that unembound themselves to provident providers. Similarly, citizens, barrassedly defined coverture are background. Cott describes understanding a need for collective governance, sacrificed their legal regimes in which women were represented politically and will to provident laws. socially, and controlled physically and economically, by heads But the marital unit was more than symbol. It was the basic of household, but she does so en route to explaining the more unit of the state, embodying virtues of loyalty and order that were lasting impact of less explicit reinforcements of male family mirrored in local unions of citizens and in the union of the states. headship. With the eye of a disciplined cultural critic, Cott uncovThe character of the nation was determined by the manners of its ers the hierarchical structure of a host of legal schemes: Of social people, and manners were learned in the home.8 Moreover, it was in the family that virtues of mutual concern were fostered to balwelfare systems, starting with the Freedmen’s Bureau and continuing through contemporary “Personal Responsibility” legisance the individualism that was valorized in political and economic sectors.9 The mutually derivative characters of nation and lation, that favored, and encouraged, families in which a male family were taken as national character. spouse was the only breadwinner.1 Of requirements that the wages of women They were then given the appeal of the Cott describes legal regimes in which exclusive as family forms were racialand children be paid to their husband or 2 women were represented politically and father. Of social welfare laws that ized and the United States was seen as socially, and controlled physically and Christian, monogamous, European, and directly supported women only when (therefore) superior. And they were prothey were “legitimately” unmarried as economically, by heads of household, 3 a result of widowhood or desertion. Of tected, or so it was thought, by resort to but she does so en route to explaining immigration laws that granted admislaws that went beyond establishing and the more lasting impact of less explicit sion to the United States or citizenship reinforcements of male family headship. supporting marriage to policing it— on the basis of paternity or wifehood, determining its form, its durability, and withdrew citizenship from women who its obligations. So complete was the conmarried foreign nationals, and disproportionately excluded ceptual amalgamation of nation and family that government propwomen.4 Of tax laws designed, albeit sometimes unsuccessfully, aganda of the 1940’s proclaimed that World War II was “about love and gettin’ hitched, and havin’ a home and some kids, and to subsidize marriage.5 Of legal campaigns to enforce the sup6 breathin’ fresh air out in the suburbs.”10 port obligations of (usually poor) men. Of laws prohibiting governments from hiring more than one member of a family.7 In more recent years, Cott sees a slow but distinct pattern of Cott deepens her analysis of the pervasiveness—and the effecdisestablishment—of government withdrawing from the enforcetiveness—of laws enforcing male family headship by connectment and policing of hierarchical, monogamous marriage as the state comes to seem more secure, variety in forms of affiliation ing those laws to an evolving national ideology in which marriage is both a metaphor and a foundation for the democratic state. and affection seems more banal, and the technological state finds Metaphorical uses of marriage spoke to the character of the it at least as simple to track and control individuals as to track state as well as to the duties of citizens. Paternal metaphors that and control families. As a concomitant, she sees changes in the were used to describe both the subject’s relation to a monarch law. Whereas earlier reforms of laws enforcing gender hierarchy and the colonies’ relation to the colonizing state were rejected were often designed to achieve other ends (as when married in the revolutionary era in favor of a characterization of national women’s property was protected from her husband’s creditors,

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Copyright © 2002 The Pennsylvania State University, University Park, PA

BOOKS IN REVIEW but only as a means to protect traditional families in times of in ways that provide cues to their own subjective states. This is economic crisis), or against established opposition, Cott reads to say that babies are wired for relational behavior and able in the Supreme Court’s privacy jurisprudence as an affirmative the first months of life to begin the human work of learning to 11 move to unseat hierarchical marriage as a pillar of the state. communicate and negotiate mutual needs. It is also to say that Our contribution to this well-deserved celebration of Cott’s they are wired for love—for the happy relational state of being work comes in two parts. We first discuss the extent to which mutually accommodating and mutually accommodated. psychological forces both reinforce and resist the laws, customs, Gilligan’s studies of adolescent girls, of women making deciand ideologies that Cott so carefully reveals. We offer this dissions to abort or continue a pregnancy, of pre-school boys and cussion in an analysis of two measures—one social, the other their fathers, and of couples in therapy revealed a vibrant awarelegal—that Cott cites in her rich account of the enforcement of ness of the excitement of relationship. In her interviews, Gilligan traditional marriage. We then discuss the extent to which resistwas able to tap an often suppressed attraction to the logic of recance has played a part in whittling away at patriarchal practices iprocity. And in close readings of classical and contemporary litand customs. We highlight these traditions of resistance and claim erature and of histories of political and social movements, them as national traditions. Having done Gilligan found echos of the same affinso, we return to Cott’s analysis of the ity for relationship. Supreme Court’s privacy jurisprudence. The logic of patriarchy involves idealizaAt the same time, Gilligan’s work tion rather than genuine relationship. We argue that the Court’s understandexposed a competing logic that denies The maternal figure is not seen as a ing of privacy is less rich, less justified reciprocity and love in favor of hierarsubject with wants, needs, limitations, by national history and tradition, and chy and isolation. It was inordinately and an independent will, but as an less useful in the struggle against gendifficult for many women and girls, idealized, ever willing and all der subordination than an understandfunctioning in their everyday lives powerful provider. ing of liberty and citizenship that rather than in the resonant environment resonates with national traditions of of Gilligan’s interviews, to insist on the feminist and antislavery resistance. reciprocity of genuine relationship. These traditions of resistance succeeded in transforming the text, Instead, too many women and girls felt obliged to subordinate and should inform the meaning, of the United States Constitution. their own needs and desires to the needs or preferences of others in eternally frustrating attempts to live up to the image of The Psychology of Love and the Psychology of what psychoanalyst Jessica Benjamin—embellishing on Virginia Male Family Headship Woolf—has called the “omnicompetent angel of the house [or office, or friendship].” On the other hand, in her studies of male Gilligan’s work has always called attention to the relational pre-schoolers, fathers, and male partners in therapy, Gilligan, character of human psychology, and her recent work speaks like Freud, found a tendency toward a radical psychological displainly of a psychology of love. Infant research supports sociation from the mother and the relational logic she had come Gilligan’s emphasis on the psychological importance of relato represent. These flights from relationship are grounded in what tionship and love, for it establishes that the marvel of intersubwe call the logic of patriarchy. jectivity—the ability to connect with other minds and to revel The logic of patriarchy involves idealization rather than genin the connection—is basic to the human condition and apparuine relationship. The maternal figure is not seen as a subject ent even in the first months of life.12 Earlier theorists emphawith wants, needs, limitations, and an independent will, but as sized the rudimentary state of babies’ ability to differentiate self an idealized, ever willing and all powerful provider. On this view, and other. They posited an initial state in which the baby feels mother and child are left in an emotional isolation. When needs that s/he is all—the belly that hungers, the voice that cries and are met, the child has an illusion of mastery, but no sense of the the breast that appears in response—as well as an intermediate personhood of the provider. When needs are not met, the child state in which infants recognize the separateness of caregivers experiences an uncomprehending rage. Both the maternal figbut fantasize caregivers as omnicompetent and subject to the ure and the child miss the give and take of intersubjective combabies’ will. We now know that the healthy baby rapidly learns munication and reciprocity.13 to use the gift of intersubjectivity—to accept the separateness Imagine these concepts at play in a culture in which women and humanity of others and to negotiate conflicts of will and are subordinate and those who provide basic care for infants and need. This is possible because babies are intellectually equipped children are overwhelmingly female. Boys will receive a cultural from the start to read cues concerning another’s (initially a message, inherent in strict gender role definitions and strengthmother’s or another caregiver’s) subjective state, and to respond ened by the social devaluation of women, that a positive mas-

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P U B L I C V O W S B Y N A N C Y F. C O T T balance their recently discovered competence and independculine identity requires abdication of all qualities that are thought ence against the needs of their returning men.14 of as feminine. This means that intersubjectivity, which is likely to have been first enjoyed in a mother’s care, will be stunted. To care for another in the context of a reciprocal and mutuGirls, as members of the socially devalued group, will be prone ally respectful relationship is satisfying, healthy, and natural. to the narcissistic belief that they are worthy, not for what they And there are times in any relationship when the needs of one think, do or dream, but because they fill the idealized maternal partner make caregiving asymmetrical. But Cott’s reading of role and are therefore valued by a male provider who becomes, post-War propaganda speaks not of relational concern, but of a ironically, an idealized provider in his own right (albeit of a somecall to role and rule rather than to engagement and choice. A call what different sort). Girls and women will therefore be pulled to isolation. to forego genuine engagement and to defer selflessly to the Working with semiotic tools, Gilligan has found that extractwishes and wills of others. And, alas, boys and men will be prone ing from a subject’s speech the verbs linked with the pronoun to deny the full humanity of women, accepting them instead— “I” reveals worlds about the subject’s sense of self.15 She calls and idealizing them—as omnicompetent and deferential angels. the resultant analysis an “I Poem.” All of this creates the irony of an isoCott’s summary of post-War propalating symbiosis that is tragic for its sup. . . there are times in any relationship ganda yields a similarly revealing pression of relationship and love. when the needs of one partner make “Command Poem”: The symbiotic patterns that we have Be sensitive. caregiving asymmetrical. But Cott’s described create the psychological conAdjust. reading of post-War propaganda speaks ditions for heterosexual male headship, Make the partner feel secure. not of relational concern, but of a call for they feed, and seem to naturalize, Tolerate. to role and rule rather than to engagethe expectation that men will turn to the Refrain from questioning. ment and choice. A call to isolation. “public” sphere and a dominating isoRefrain from . . . nagging. lation, that women will serve as selfless, Be self-abnegating. nurturing angels of the home, and that This is to lock one’s self in what Gilligan describes as the both will follow the rules associated with their roles rather than 16 It is to forego denial of relationship for the sake of relationships. explore together, and reconcile, their particular wants and needs. the engaged intersubjectivity of which human beings are so speLayer onto these tendencies and patterns, arguably more cially capable. It is to deny one’s own interests and desires. To prevalent in the 1940’s than they were at the time of Gilligan’s accept the vain struggle to satisfy another’s fantasies of selfless, or Benjamin’s research, Cott’s documentation of the social mesomnicompetent care. To enable or revive a child turned tyrant sages directed at men and women at the end of World War II, by its denial of a caregiver’s humanity. and we see how the state invests in and perpetuates the psyFifty years later, Cott finds in the law a similarly telling call chology of male headship and inhibits the impetus to resist hierto selfless marital duty. In the 1993 case of Borelli v. Brusseau17 archy and isolation. The circumstances of war had created a a California appellate court was asked to decide the enforcepropitious social climate for resistance to male headship, for ability of a gravely incapacitated man’s promise of compensawomen had tested the waters of the marketplace and begun to tion for a wife’s willingness, against the advice of his doctors, experience economic independence. Men, on the other hand, had to see to his care at home rather than in a nursing facility. The been pushed to violence and suffered extraordinary trauma and compensation was to have come in the form of a bequest. When loss. The war had been touted as a battle to preserve the haven the husband died without making the promised bequest (instead that the suburban home was imagined to be. The instinct of the leaving the bulk of his assets to his daughter), Hildegard Borelli, polity was to demand that women regress from the role of comthe disappointed widow, sued the estate through Grace Brusseau, petent market participant and embrace ever more ardently the daughter of the deceased and executor of the estate. role of selfless and omnicompetent caregiver, mothering their Grace Brusseau appeared to have precedent on her side. Estate husbands and lovers—and the nation—back to a healthy hierarof Sonnicksen and Brooks v. Brooks, cases decided in 1939 and chy. Cott describes the message of self-sacrifice in this way: 1941, respectively,18 had both held that an agreement to compensate a wife for providing nursing care to her husband was [V]eterans both needed and desired feminine women who would be sensitive and adjust their interests and desires to without consideration and void as against public policy. those of their men. Wives and girlfriends were counseled to Sonnicksen and Brooks had both involved female nurses who make the veteran feel secure, tolerate his outbursts, refrain married their male patients. The Sonnicksen saga began when from questioning his decisions and from nagging. They were Martha Sonnicksen (then Martha Sullivan) entered a contract to asked to be self-abnegating for the time being and warned to

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BOOKS IN REVIEW live with and care for one of her patients and forsake any other the court was able to rule that Hildegard Borelli’s sickbed care professional opportunities in exchange for room, board, a weekly of her husband could not be compensated because it was an entisum of money, and an interest in certain of his property. Nurse tlement of marriage “as the legislature had defined it.”21 As we and patient later married; later still, they parted. When the patient shall see, however, the Borelli court was not able to make a perdied, his estate succeeded in recovering payments made to the suasive case for the existence in California of a mutual and gennurse after the marriage by persuading the courts that the nurse der-neutral obligation of direct care. could not be compensated for services rendered while she was It was uncontroverted that California law formally imposed his wife. These services were, in the view of the appellate court on spouses a gender neutral duty of financial support. The Borelli that approved a judgment for the patient’s estate, uncompensatcourt was able to cite to enforceable statutes to that effect.22 A able, for “[w]hen the parties. . .became husband and wife, one mutual obligation of physical caregiving was less easily estabof the implied terms of the contract of marriage was that [the lished. An intermediate appellate court had said, in dictum and wife] would perform without compensation the services covered in gender-neutral terminology, that a legal obligation to provide by . . . [the parties’] written agreephysical care to a disabled spouse might 19 ment.” Bessie Marie Brooks had been serve as a justification for denying a . . . we can speculate that the court hired by her paraplegic patient to live in government subsidy for care performed was disinclined to overturn precedent his home and care for him for the sum by a spouse. But the case itself did not in order to favor a plaintiff whose story of $80 per month. She later threatened decide that there was such a duty, and evoked a “gold-digging” script. The to leave unless the patient married her. its holding—in a case brought by discourt was, however, sensitive to He did so, but still later she left abled male patients and their caregivBorelli’s claim that Sonnicksen and nonetheless. He then sued her for ing wives—was that if subsidies are Brooks rather self-evidently relied on monies paid for care she rendered provided for the spouse-caregivers of a discredited and unconstitutional between the time of their marriage and people with some disabilities, they may gender distinction. the time of her departure. He was vicnot be denied to the spouse-caregivers torious, for the court, relying on of people with different but equally 23 Sonnicksen, took the view that “a married woman cannot conserious disabilities. tract with her husband with respect to domestic services which The Borelli court referenced cases in which both men and are incidental to her marital status, since such contracts are women had recovered for consortium or loss of services of a against public policy.” The reason for the rule was drawn from spouse. California courts had overturned an older rule that only a New York case: “Whatever services a wife renders in her home men could recover for loss of consortium, but this was done in for her husband . . . are rendered on her husband’s account in the a case in which a woman was denied compensation for nursing discharge of a duty which she owes him or his family, or in the services to her spouse but given compensation for having been discharge of a duty which he owes to the members of his housetransformed, as a result of her husband’s physical limitations 20 hold.” “from a happy wife into a lonely nurse.” Moreover, none of the More than fifty years after Brooks, the court considering loss of consortium or loss of services cases cited by the Borelli Hildegard Borelli’s claim was obligated by the principle of stare court established a right to particular benefits or services within decisis to follow the earlier cases unless they could be meana marriage. They simply affirmed the right of a widowed spouse ingfully distinguished or there were strong reasons to modify or to recover for the loss of benefits that a deceased or injured partreject the principles for which they stood. The court was relucner did provide before the death or injury the defendant was said tant to overturn the reasoning of Sonnicksen and Brooks, at least to have caused. Indeed, the notion of an entitlement to services in part because they stood as protections against fraud (both is belied in these cases by the fact that the plaintiffs were not against a family’s or estate’s creditors and against a decedent’s permitted to rely directly on the fact of marriage to recover for family and unrelated beneficiaries of the estate). Moreover, we loss of services, but were required to prove the beneficial concan speculate that the court was disinclined to overturn preceditions of the particular marriage that was ended or compromised dent in order to favor a plaintiff whose story evoked a “gold-digby the defendant’s alleged wrongdoing.24 ging” script. The court was, however, sensitive to Borelli’s claim The Borelli court’s difficulty in documenting a duty of physthat Sonnicksen and Brooks rather self-evidently relied on a disical care—gender-neutral or not—stems in part from the fact credited and unconstitutional gender distinction. that the law provides no occasion for directly enforcing such a The court met Borelli’s claim of gender discrimination by duty and would surely refrain from doing so. Women do not nurse declaring that California law had changed, and that marital oblitheir husbands on pain of fine or imprisonment. Courts do not gations of care had become gender neutral. With this claim met, order spouses to provide direct physical care to each other.

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P U B L I C V O W S B Y N A N C Y F. C O T T Official enforcement of the norm of physical caregiving is always dists and policy-makers had sought to quell was embraced by indirect, as when the loss of a spouse-caregiver is compensated, this justice as a force that would upset the hierarchy of tradior a subsidy is denied to a spouse-caregiver, or a contract for tional marriage, thereby permitting bargaining between equals caregiving by a spouse is deemed unenforceable. The entitleover the terms and conditions of marital partnership. The justice ment to physical care can only be realized, then, if a spouse is described how the change the War had wrought in women’s stawilling, or forced by unofficial means, to honor it. tus would play out with respect to domestic caregiving. In the If we consider the relationship between the Borelli court’s justice’s view, married people did owe to their spouses a duty of norm of symmetrical caregiving and actual practices, we find care, but the means of carrying out that duty were not prescribed. evidence that adherence to the norm is decidedly asymmetrical. One might hire a care-giver, depend on family and friends, or The Borelli decision was set down in a culture in which social provide care oneself. The justice speculated that the Sonnicksen and psychological forces strongly reinforced women’s sense of and Brooks courts referred to a wife’s duty of personal care priduty to provide care, reinforced men’s sense of entitlement to marily because they ruled at a time when most women had no care, and only weakly reinforced men’s sense of duty to provide means of providing care other than direct service. But, said the direct care. These forces, taken together justice, women’s marketplace activity with the ambiguity and indirectness of during and after the War had changed The dissenting justice in Borelli shared the law’s call to duty, make it unsurofficial views of marriage as it had with the majority justices a commitment prising that reported California cases enlarged women’s real and imagined to a norm of equality within marriage, involving a duty of physical care almost options. Positing a link between ecobut reasoned that the norm would be invariably feature women as caregivers. nomic independence and a woman’s realized, not as a result of state enforceAlthough Borelli announced a genderability to assert her own interests and ment of gender-neutral marriage terms, neutral norm that obligates a spouse to desires, the justice observed that just but as a result of an equalization of provide physical care, a comprehensive after the Brooks case was decided, economic power within marriages. review of reported California cases “Rosie the Riveter became not only a uncovered only one involving a man war jingle but a salute to hundreds of who provided direct physical care to a thousands of women working on the spouse or other family member: Nelson v. United Technologies, war effort outside the home.” As a result, it became unremarka case brought by a male firefighter who had missed work over able that both husbands and wives would have “alternative metha ten day period during which he cared for his injured wife and ods” of meeting a “duty of care to an ill spouse.” To contend, the two year old son (because visiting nurse services were not availjustice argued, that a spouse choosing to provide direct care gave able) and sued to protest having been fired when his employer nothing more than the law required would be to concede “that discovered that he had served for a few hours during that period if Mrs. Clinton becomes ill, [then] President Clinton must drop as a volunteer firefighter.25 Empirical studies of caregiving yield everything and personally care for her.” Times had changed, the similar, but somewhat less extreme results. More than seventy justice argued, and so must the law.27 percent of those who provide informal care to the elderly are We do not embrace entirely the dissenting justice’s analysis. women. Women are more likely than men to change their patFirst, the argument that Sonnicksen and Brooks were grounded terns of paid work in order to accommodate caregiving to the in a belief that women did not work for pay is belied by the fact elderly. Moreover, men who count themselves as caregivers are that both involved women who earned their livings and supported more likely “to perform discretionary, infrequent tasks such as their children as professional nurses. Moreover, even when law household repairs or financial management, while women are and custom cast women as helpmates rather than as economic more likely to do more intimate bodily care and meal preparaagents, the law might have—and in our view should have—given tion that requires them to be permanently on call.”26 We might women a voice in deciding whether a family with means to do say, then, that the gender-neutral regime of marriage laws that so would use its assets to provide professional care to family the Borelli court described was barely discernable in legal precemembers. So, we would not agree that the Sonnicksen and Brooks dents and only weakly reflected in practice. courts decided as they did for want of social models of incomeThe dissenting justice in Borelli shared with the majority jusearning women. Their decisions reflect not only an assumption tices a commitment to a norm of equality within marriage, but that women would not be economically self-sufficient, but at reasoned that the norm would be realized, not as a result of state least two additional assumptions: 1) that family resources would enforcement of gender-neutral marriage terms, but as a result of be controlled by a male head of house, and 2) that women’s (and an equalization of economic power within marriages. The surge children’s) labor would be controlled by a male head of house. of women’s marketplace activity that some post-War propaganOn this view, the means of carrying out a duty of spousal care


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BOOKS IN REVIEW could be chosen by men, not only because they were breadwinize norms of gender equity or individual liberty, but by more ners, but also because they were superordinate. And the provimundane concerns. Just as laws giving married women control sion of a wife’s services was never rightfully chosen (except in over their property were, in Cott’s description, passed to protect the distant sense that she once chose to marry), but always assets of the family unit against creditors rather than to promote required or forgiven. women’s independence, laws increasing the grounds for divorce Although the Borelli dissent did not fully expose the hierarwere passed, not to give people affiliational freedom, but to put chical structure of marriage as defined in Sonnicksen and Brooks, a stop to fraudulent claims in divorce actions. it may have challenged that structure more profoundly than did Cott’s work has the value of revealing the pervasiveness of the Borelli majority with its elusive but gender-neutral norm of the legal and social systems that control marriage, but it should reciprocal care. The majority justices had tried to address the not cause us to lose sight of traditions of resistance to those sysinequity of a one-sided and apparently limitless marital duty of tems. These traditions are significant aspects of our national hiscare by creating two apparently limitless duties of care. The distory. More important, these traditions are directly linked to the senting justice saw in the circumstances of war an opportunity reconstruction of the United States Constitution, and therefore for popular resistance to hierarchy. This to enforceable visions of liberty, equaljustice imagined a world transformed ity, and human rights. The law’s command, albeit indirectly by women’s wartime service in the In Neglected Stories, Cooper Davis enforced, was subservience to an ideal workforce so that women were not only described two contexts in which marof marriage rather than a genuinely wage-earners but also (and to some riage terms were contested in the intersubjective working out of the extent as a result) subjects competent United States: First, throughout the terms of a particular union in particuand free to negotiate the terms of their slaveholding years the fact that enslaved lar—and grave—circumstances. Here, marriages. Daring to imagine a world in people could not enter a legally sancas in the post-War call to women to which there is no selfless and omnitioned marriage fueled protests against resume their traditional roles, competent provider, the dissenting justhe institution of slavery and generated relationship was sacrificed in favor tice argued that the couple should have a critique of the status and importance of replication of relationships been entitled “to come to a working of marriage in civil society.28 Second, arrangement of marital responsibilities.” in the Nineteenth Century women and according to a state sanctioned model. Hildegard and Michael Borelli were men protested the terms of legally sancnot expected by the Borelli majority to tioned marriage and defied the law to come to their own terms about what it meant to him to be in their enter relationships upon more equalitarian terms of their own home, what it meant for her to have and to care for him there, choosing.29 As we shall show, in both contexts, human rights and how the couple might fairly manage competing and comprinciples were both developed and enacted in the lives of mon needs in a time of medical crisis. Hildegard Borelli was activists. We see these protest movements as an Africansimply required to provide the care that Michael Borelli craved. American-feminist coalition within which there developed a The law’s command, albeit indirectly enforced, was subservience human rights ideology that stood against racial and gender hierto an ideal of marriage rather than a genuinely intersubjective archy and informed an antislavery vision of marriage. And we working out of the terms of a particular union in particular— see them as manifestations of the psychology of love. and grave—circumstances. Here, as in the post-War call to Antislavery Resistance women to resume their traditional roles, relationship was sacrificed in favor of replication of relationships according to a state The antislavery position with respect to marriage was closely sanctioned model. related to the antislavery position with respect to the intellectual

Traditions of Resistance Cott’s focus is on state enforcement of particular models of marriage. Her account of marriage in the United States refers to, but does not highlight, traditions of resistance to state enforcement of hierarchical marriage. Indeed, Cott brings new attention to the extent to which marriage reforms that gave couples more freedom to choose the terms of their relationship or gave women more independence were motivated, not by forces seeking to real-

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and moral character of the human subject. Those who experienced slavery, or observed it with empathy for the enslaved, knew the outrage a rational and morally conscious being feels at constraints upon self-definition. They observed that, in the words of a contributor to the Anglo-African Magazine, “the mind . . . is useless to the slave, or if of service to him, this thinking apparatus is not his own, it belongs to his owner. . . . Where liberty is, the head or mental part is presented to view.”30 They understood the position described by former slave Lunsford Lane when he wrote that it

P U B L I C V O W S B Y N A N C Y F. C O T T was intolerable “[t]o know . . . that I was never to consult my own enslaved families—joining what W.E.B. DuBois rightly described will, but was, while I lived, to be entirely under the control of as a massive strike of the slave system—deserted plantations, another.”31 They therefore appreciated the sentiments of Oney farms, and other work sites in the Confederacy to join the Union Judge, a personal slave to Martha Washington who escaped one forces.36 Opposition was enacted after Emancipation as formerly evening as the first family was having dinner, when she said that enslaved people formed families in order that they might claim one hour of freedom was worth all the danger and poverty of life their rightful status as human and civic subjects and, in the words 32 as a fugitive. And they understood Samuel Ward’s argument that of an African-American Union soldier, “be established as a peothe process of resisting and escaping slavery “fitted . . . [one] the ple.”37 And it was enacted in the antislavery demand that the more highly to appreciate, . . . more fully to enjoy, and more wisely reconstructed Constitution fully enforce universal freedom by to use. . .liberty.”33 They drew from their experiences and obserprotecting rights of marriage and “the security of home.”38 vations of slavery a conviction that the human capacity to make The significance of African-Americans’ lived opposition to life-defining choices, and the human drive to do so, were such that slavery’s denial of marriage rights is not erased by official efforts every person has an inalienable entitlement to construct a life on to police family formation among the formerly enslaved. Cott chosen terms, so long as s/he does not rightfully points out that the United act in ways that cause harm to others. States government used the Freedmen’s Official insistence on male headship Antislavery thinkers and activists saw Bureau in the post-Emancipation period was in tension with the egalitarian, that choices about whether and whom to govern the marriage practices of human rights norms that fueled both to marry and how to conduct oneself emancipated people. As Cott reports, white and black opposition to slavery. within marriage rank high among the Bureau officials reflected the racializaThe concept of male headship was also life-defining choices that a human being tion of marriage norms by presuming a in tension with traditions of activism makes. To deny those choices to any need and a right to instruct newly freed and resistance that were at least as person was therefore considered a viopeople in proper sexual and marriage vibrant among black women as lation of basic human rights. As early practices, and they enforced male headamong white women. as 1744, enslaved people protested their ship by providing that the wages of condition with the complaint that newly freed women and children would although they were rational beings with be paid to their husband or father.39 The the right and duty to construct a moral life, they were constrained Black Codes of the former Confederate states extended racialized even from making and keeping the vows of marriage and holdefforts to govern African-American marriage practices in that they ing to the obligations of parenthood.34 White antislavery advoattempted to mandate the continuation of slavery’s social status cates argued similarly, insisting that fundamental prerogatives quo. The Codes of Mississippi, for example, required that freedlike the right to marry were inalienable because their denial frusmen marry whomever they were living with upon Emancipation trated the exercise of conscience and rational will.35 and support the issue of what had in many cases been compulsory The critique of slavery’s denial of family rights had a social cohabitation.40 as well as a personal dimension. Denying legally sanctioned marBut official efforts to police the family practices of emanciriage to rational and morally conscious beings did more than pated people did not fix the meaning of African-Americans’ faminhibit their affiliational choices and their ability to define their ily commitments. Official insistence on male headship was in intimate lives. It cut them off from a body politic of which, as tension with the egalitarian, human rights norms that fueled both Cott has so richly shown, family was a basic unit. Inability to white and black opposition to slavery. The concept of male headmarry, to nurture and socialize children, to pool family labor for ship was also in tension with traditions of activism and resistmutual benefit, or to use the family as a site for the perpetuaance that were at least as vibrant among black women as among tion and development of values was central to the civil death of white women. Finally, the concept of male headship was in tenthe enslaved. The denial of family went beyond making it diffision with the economic facts of black life. African-American cult for the enslaved to control their private lives to deny the women were socially and psychologically affected—and the lived slave’s place as a political and social actor. terms of African-American marriage were affected—by the ecoOpposition to these aspects of slavery was enacted in the lives nomic position of black women. For African-American women of enslaved people who formed and maintained families despite in the United States, economic dependence was never as stark the absence of legal sanction, and, if necessary, against the will as it was for white women. Able-bodied African-American of masters and in defiance of laws that would have kept the famwomen were fully employed, albeit without compensation, in ily’s members apart. It was enacted during the Civil War as slavery, and their labor continued to be needed, and sought, after


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BOOKS IN REVIEW Emancipation. In 1900, 26 percent of married black women in the United States were employed, compared with only 3.2 percent of married white women.41 To be sure, African-American marriage practices were—and are—affected by official and unofficial majority norms. To be sure, African-American men and women often strived for the once forbidden and still elusive goal of establishing stay-at-home female and bread-winning male marriages. But the impetus to form officially recognized families in order to be “established as a people” was more than a wish to conform or to taste forbidden fruit. It was also a will to construct—as individuals, as families, and as a distinct subculture— family relations that were freely chosen. And it often mixed with a determination to resist conspicuously racialized and patriarchal norms that the majority culture endeavored, officially and unofficially, The antislavery to enforce.42

Feminist Resistance

and Blackwell enacted their feminist and antislavery beliefs in one of the most famous “Antislavery Weddings”—ceremonies at which bride and groom announced and sought public acceptance of their commitment to each other while denouncing and refusing to be bound by patriarchal laws. These ceremonies made vivid the ideological connection between opposition to slavery and opposition to patriarchy. The protest read at the StoneBlackwell ceremony began as follows:

While acknowledging our mutual affection by publicly assuming the relationship of husband and wife, yet in justice to ourselves and a great principle, we deem it a duty to declare that this act on our part implies no sanction of, nor promise of voluntary obedience to such of the present laws of marriage, as refuse to recognize the wife as an independent, belief that rational, rational being, while they confer upon morally conscious beings are entitled to the husband an injurious and unnatua measure of liberty in shaping their ral superiority, investing him with legal intimate lives and an equal role in the powers which no honorable man would exercise, and which no man body politic had telling implications should possess.44 for the status of women and the

The mid-Nineteenth Century feminist critique of marriage applied the human rights principles of antislavery legitimacy of prevailing marriage thought to the family. The antislavery Here, as in protests against slavery, laws and customs. belief that rational, morally conscious recognition of each person as “an indebeings are entitled to a measure of libpendent, rational being” necessarily carerty in shaping their intimate lives and an equal role in the body ried with it a duty to relate to each person on terms that afforded politic had telling implications for the status of women and the an appropriately generous measure of agency and choice. legitimacy of prevailing marriage laws and customs. Henry As it happened, the marriage of Stone and Blackwell fell short Blackwell, antislavery activist and women’s rights advocate wrote of the ideals professed at their wedding. Blackwell at times in the 1850s that no person should yield—to a master or to a insisted upon powers and prerogatives that no honorable man government—a sovereignty that precludes autonomous moral should exercise, and at times Stone’s fears about the incompatfunctioning or inhibits life’s central affiliative choices. He thereibility of marriage and activism were realized.45 Other abolifore equated the slave system, under which life partnerships were tionist marriages were of mixed success: The marriage of subject to the will and economic interests of masters, and patriAngelina Grimke and Theodore Weld seems to have pulled archal marriage laws, under which life partnerships were conGrimke away from the activism of her earlier years, despite strained to take traditional, but morally unacceptable forms. In Weld’s support of her work and his attention to domestic responan oft repeated act of resistance to the isolation and moral consibility.46 Abbey Kelley and Stephen Foster are thought to have straint of hierarchy, he argued that people should defy both chathad a successful and egalitarian marriage, finding “individualtel slavery and the slavery of traditional marriage: ity through affection.”47 This mixed record, unsurprising given the radical break the couples had made from the norms of their Give me a free man—he can never be made a slave. Give me culture and time, did not, however, lead to abandonment of the a free woman—she never can be made one either. . . . The abolitionist human rights ideal of equality. As historian Chris great evil I think, in our institutions lies here that they so crush Dixon concludes in her thorough study of antislavery marriages, the spirit out of people that they do not make themselves on the whole, “abolitionists derived pleasure and satisfaction free. . . . The first step from slavery is to seek freedom for 43 from their family lives” even as they challenged ideology and ourselves . . . the next is to seek it for others & for all. transformed discourse with respect to gender and human rights.48 Blackwell wrote these words in a letter to Lucy Stone, one in The Implications for Legal Thought a series designed to persuade her to marry him despite her aversion to marriage as practiced and legally prescribed in the United Cooper Davis has established a direct connection between States in the Nineteenth Century. He was successful, and Stone antislavery’s human rights tenets and the definitions of liberty

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P U B L I C V O W S B Y N A N C Y F. C O T T and citizenship that the Reconstruction Congress wrote into the respect to an independent right to marriage or marriage choice Fourteenth Amendment. She has argued that family rights consisted of two sentences, one announcing the conclusion that jurisprudence is impoverished as a result of its neglect of the the right existed, and the other saying only that “freedom to marry Fourteenth Amendment’s grounding in anti-hierarchical, human has long been recognized as one of the vital personal rights essenrights traditions of antislavery and Reconstruction. 49 More tial to the orderly pursuit of happiness by free men.”52 Roe v. recently, Reva Siegel has developed a similar claim with respect Wade established a right of abortion choice in language that was to the Nineteenth Amendment, arguing that the traditions of femonly slightly more elaborate and no more informative as to why inist resistance that produced enfranchisement for women comthe sparse terms of the Fourteenth Amendment protected the pel interpretations of the Nineteenth Amendment—and of the right. Eisenstadt v. Baird was very nearly incoherent in its extenFourteenth Amendment read in light of the Nineteenth—that prosion of the home-based rights established in Griswold to all vide robust protection of women’s rights to equal personhood unmarried people on grounds of equal protection.53 None of these 50 and full citizenship. As Cooper Davis and Siegel both argue— cases, and none of the subsequent cases clarifying and qualifyand as cyclical shifts in political power would predict—even ing the rights established in them, mentions the antislavery when political victories of women and human rights traditions that caused human rights advocates are enshrined members of Congress to believe that the in the text of the Constitution, judicial citizenship conferred by the Fourteenth And as Cott usefully points out, the interpretation is likely, over time, to negAmendment had to encompass rights of Court took an important step toward lect the rationales and principles of the disestablishment of the terms and status home and family. And none referenced victors. The result is niggardly interthe Reconstruction Congress’s extenof marriage when, in 1971, it held that pretation that eviscerates hard won consive discussion of the centrality of these the right of contraceptive choice must stitutional measures. The remedy is to rights. be recognized regardless of marital assure that feminist and human rights Because they have rested on such status. But, like women’s property traditions are not neglected. slender jurisprudential reeds, rights of laws that were enacted to protect the As Cott observes, justices of the choice with respect to contraception, assets of a household against its Supreme Court have recognized a marriage and abortion are at unnecescreditors, these decisions were made Fourteenth Amendment right to a meassary risk of being inappropriately limfor the wrong reasons. ure of independence in decision making ited or overturned. If the human rights about marriage and sexuality. The right principles of antislavery and feminist to choose whether to use contraception, struggle were made salient as the Court to marry, to choose a marriage partner without regard to race, addressed difficult questions of human agency and intimate affiland to choose whether to continue or abort a pregnancy have all iation, the Court might support with the experience of history and been given constitutional status.51 And as Cott usefully points the weight of war-won commitment to universal citizenship and out, the Court took an important step toward disestablishment civil rights, the emerging but fragile understanding, expressed of the terms and status of marriage when, in 1971, it held that when, in Planned Parenthood v. Casey it affirmed the core holdthe right of contraceptive choice must be recognized regardless ing of Roe v. Wade: “Our precedents have respected the private of marital status. But, like women’s property laws that were realm of family life which the state cannot enter. These matters, enacted to protect the assets of a household against its creditors, involving the most intimate and personal choices a person may these decisions were made for the wrong reasons. make in a lifetime, choices central to personal dignity and autonThe majority opinion in Griswold v. Connecticut grounded omy, are central to the liberty protected by the Fourteenth the Fourteenth Amendment right of contraceptive use in notions Amendment.” of physical privacy found in “emanations” from the preConcluding Thoughts Fourteenth Amendment rights to protection against unreasonable searches and against the quartering of soldiers in one’s home. Women in families must every day make decisions against a The right to marry was first recognized in Loving v. Virginia, the background expectation that they will yield their will and forego case that also established the right to marry across racial lines. their interests in service—or in servitude—to a gendered norm In an extended and well-reasoned argument, the Loving court of perfect nurturance. A jurisprudence of equality does not easannounced that anti-miscegenation laws were white supremacist ily get at this problem. Espousing equality between the married in design and therefore violated the equal protection clause of and the unmarried elides the problem entirely. Espousing a norm the Fourteenth Amendment. But the Court’s language with of equal and total care denies the gendered context that will make


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BOOKS IN REVIEW its realization asymmetrical. More basically, it fails to address the impossibility and unreasonableness of the normative command. The human rights vision of antislavery feminists begins to address the problem. It does so by explaining why human beings are entitled, within reasonable constraints, to decide the terms of their relationships and negotiate particular relational responses, rather than succumb to the dictates and expectations of a hierarchical order. There is, as Cott so brilliantly shows, liberating value in understanding the layers of law and custom that subtly support patriarchy. But there is also liberating value in keeping in sight—and keeping alive—the generative traditions of antislavery and feminist resistance. Peggy Cooper Davis is John S.R. Shad Professor of Lawyering and Ethics at New York University School of Law. Carol Gilligan is University Professor at New York University School of Law.

Endnotes 1. Nancy F. Cott, Public Vows (Cambridge: Harvard UP, 2000) 158, 15, 222. 2. Cott 92–93. 3. Cott 176. 4. Cott 133–43.. 5. Cott 191–193. 6. Cott 169. 7. Cott 173. 8. Cott 18. 9. Cott 21. 10. Cott 187, quoting Elaine Tyler May, “Rosie the Riveter Gets Married,” Erenberg and Hirsch, eds., War, 137. 11. Cott 197–99. 12. For examples of this infant research, see L. Murray and C. Trevarthen, “Emotional Regulation of Interactions Between Twomonth-olds and Their Mothers,” T.M. Fields and N.A. Fox, eds., Social Perception in Infants (Norwood: Ablex Publishing, 1985); L. Murray and C. Trevarthen, “The Infant’s Role in Mother-Infant Communication,” 13 Journal of Child Language 15–29 (1986); E.Z. Tronick, “Emotions and Emotional Communication in Infants,” 44 American Psychologist 112–19 (1989); E.Z. Tronick and A. Gianino, “Interactive Mismatch and Rapair Challenges in the Coping Infant: Zero to Three,” Bulletin of the Center for Clinical Infant Programs 1–6 (1986). 13. For a rich description of this phase and its relationship to dominance and subordination, see Jessica Benjamin, Bonds of Love: Psychoanalysis, Feminism, and the Problem of Domination (New York: Pantheon Books, 1988). 14. Cott 190, citing Susan M. Hartmann, “Prescriptions for Penelope: Literature on Women’s Obligations to Returning World War II Veterans,” Women’s Studies, 5 (1978), 223–239. 15. Gilligan is not alone in using techniques of this kind to uncover psychological, rhetorical or social themes in a written or

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spoken text. See, for example, Anthony Amsterdam and Jerome Bruner’s analysis of noun and verb choices in landmark Supreme Court opinions, Minding the Law (Cambridge: Harvard UP, 2000) 150–152, 293–305; Cooper Davis’s analysis of rhetorical framings and displays of affiliation in the arguments of counsel in Brown v. Board of Education, “Performing Interpretation,” Austin Sarat, ed., Race, Law, & Culture: Reflections on Brown v. Board of Education (New York: Oxford UP 1997) 1, 34–42; and Anthony Amsterdam and Randy Hertz’s analysis of the rhetorical microstructure of legal argumentation, “An Analysis of Closing Arguments to a Jury,” XXXVII New York Law School Law Review (1992) 55, 83–110. 16. Carol Gilligan, In A Different Voice (1982; Cambridge: Harvard UP, 1993) 81. 17. Borelli v. Brusseau, 12 Cal. App., 4th 647, 16 Cal. Rptr. 2d 16 (1993). 18. Brooks v. Brooks, 48 Cal. App., 2d 347, 119 P.2d 970 (1941); Sonnicksen v. Sonnicksen, 23 Cal. App. 2d 475, 73 P.2d 643 (1937). 19. Sonnicksen 479, 644. 20. Brooks 350, citing Coleman v. Burr, 193 N.Y. 17, 25 (1883). 21. Borelli, 655,20. 22. Borelli, 651,18. 23. Vincent v. State of California, 22 Cal. App. 3d 566, 572. 24. Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 409 (1974), 115 Cal. Rptr. 765, 783 (holding that a wife could recover for consortium as long as she could prove the impairments or losses suffered as the result of a negligent or intentional injury); Krouse v. Graham 19 Cal. 3d 59, 70, 137 Cal. Rptr. 863, 868 (1977) (holding that a husband could collect damages for consortium after the wrongful death of his wife so long as the circumstances justified such recovery). 25. Nelson v. United Technology, 74 Cal. App. 4th 597, 88 Cal. Rptr. 2d 239 (1999). 26. Deborah Stone, Reframing Home Health-Care Policy (2000) 7. 27. Borelli, 660, 27. 28. Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values (New York: Hill and Wang, 1997) 30–34. 29. Davis 42–49. 30. Davis 136, quoting Ethiop, “African-American Picture Gallery,” Anglo-African Magazine 13 (1859): 56–57. 31. Davis 136, quoting Lunsford Lane, Narrative of Lunsford Lane (J.G. Torrey: Boston, 1842) 8, reprinted in Five Slave Narratives, A Compendium (New York: Arno Press, 1968). 32. Gersa, Evelyn “Ona Judge Staines: A Thirst for Complete Freedom and Her Escape from President Washington,” Seacoast NH Black History, 1997, http://www.seacoastnh.com/blackhistory/ona.html (Gerson, 2000). 33. Davis 135, citing Samuel Ringgold Ward, Autobiography of a Fugitive Negro (1855; New York: Arno Press, 1968) 15–17. 34. Davis 109. 35. Davis 38, 110, 136. 36. Davis 35. 37. Davis 36, citing James A. McPherson, The Negro’s Civil War (1991) 167. 38. Davis 39. 39. Cott 85–87.

P U B L I C V O W S B Y N A N C Y F. C O T T 40. Davis 114, citing Congressional Globe, 39th Cong., 1st Sess 1160 (1866) (quoting letter from Lieutenant Stewart Eldridge to Major General Howard, November 28, 1865). 41. Evelyn Nakano Glenn, “Cleaning Up/Kept Down: A Historical Perspective on Racial Inequality in Women’s Work,” 43 Stanford Law Review 1333 (1991), citing Victor G. Nee & Brett Debary Nee, Longtime Californ’: A Documentary Study of an American Chinatown (Stanford: Stanford University Press, 1972); Evelyn Nakano Glenn, “Split Household, Small Producer and Dual Wage Earner: An Analysis of Chinese-American Family Strategies,” 45 Journal of Marriage and Family 35 (1983). See also, Barbara A.P. Jones, “Black Women and Labor Force Participation: An Analysis of Sluggish Growth Rates,” Margaret C. Simms & Julianne Malveaux, eds., Slipping Through the Cracks: The Status of Black Women (1986; New Jersey: Transaction Books, 1994) (reporting that black female earnings have traditionally made significant contributions to the incomes of both husband-wife and female headed families, that black women at all socioeconomic levels have more positive attitudes toward labor market activity than do white women, but that employment rates of and opportunities for black women are declining relative to those of white women). 42. Davis 45. 43. Davis 48. 44. For accounts of the Stone-Blackwell marriage, see, Andrea Moore Kerr, Lucy Stone: Speaking Out for Equality (New

Brunswick: Rutgers UP, 1992) 89; Chris Dixon, Perfecting the Family: Anti-Slavery Marriages in Nineteenth-Century America (Amherst: University of Michigan Press, 1997) 93. 45. See, Gerda Lerner, The Grimke Sisters from South Carolina: Pioneers for Women’s Rights and Abolition (1967; Oxford: Oxford UP, 1998) 190–234; Dixon, at 92–96. 46. Dixon at 106–111, 211. 47. Dixon at 237. 48. Davis, passim; “Contested Images of Family Values: The Role of the State,” 107 Harvard Law Review 1348 (1994); “Neglected Stories and the Lawfulness of Roe. v. Wade,” 28 Harvard Civil Rights Civil Liberties Law Review 299 (1993); “Neglected Stories and Progressive Constitutionalism,” IV Widener Law Symposium Journal 101 (1999). 49. Reva B. Siegel, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” 115 Harvard Law Review 948 (2002). 50. Griswold v. Connecticut, 381 U.S. 479 (1965); Loving v. Virginia, 388 U.S. 1 (1967); Roe v. Wade, 410 U.S. 113 (1973). 51. Loving v. Commonwealth of Virginia, 388 U.S.1 (1967) 12, 87 S.Ct. 1817, 1824. 52. Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972), 92 S.Ct. 1029. 53. For a more complete analysis of these cases, see Davis 75–77, 181–91.


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