Justice Sandra Day O’Connor wrote in Troxel v. Granville , 530 U.S. 57 (2000), that “[t]he demographic changes of the past century make it difficult to speak of an average American family.” Id. at 63. If this is an accurate statement about the current state of affairs, was it once possible to speak of an average American family? If so, why and how has the family changed over time?
The Early American Family
At our nation’s founding, with the exception of blacks who were legally prohibited from marrying in most of the South, a family consisting of a husband, a wife, and their biological children was the dominant family structure. The vast majority of people who legally could marry did so, and most stayed married until the death of their spouse. Divorce was extremely rare. As Professor Lawrence M. Friedman describes in A History of American Law , divorce was available in the South only through a special act of a state legislature. While some northern states shifted more quickly to a system that permitted judges to grant divorces, in all states divorce was only available on fault-based grounds and could only be granted to the innocent spouse.
This dominant family structure played a crucial role in the creation and replication of the social and cultural roles for men and women. Marriage was limited to heterosexual couples, and men and women took on very different roles. Wives lost their legal identity upon marriage. As William Blackstone wrote in his Commentaries on the Law of England , at common law, “[b]y marriage the husband and wife [we]re one person in law: that is, the very being or legal existence of the woman [wa]s suspended during the marriage, or at least [wa]s incorporated and consolidated into that of the husband.” The wife’s “condition” during marriage was referred to as coverture. Under the doctrine of coverture, married women could not own property, could not enter into contracts, and could neither sue nor be sued in their own names. Wives had a duty to serve and be obedient to their husbands. The legal role of women in marriage reinforced the notion that women generally were dependent upon and subordinate to men and that their appropriate roles were as caretakers in the private sphere of the home.
By contrast, husbands were the managers of and the providers for the family. “The corollary of the wife’s obedience was the husband’s authority.” Hendrik Hartog, Man and Wife in America: A History 150 (2002). The husband—the only party in the union who maintained control over the earnings (of either party)—had a duty to provide his wife with the necessities of life. In “exchange,” the husband had a right to his wife’s “services,” including the right to engage in sex with her, whether she consented or not. At common law, the concept of marital rape was a legal impossibility. As the Louisiana Supreme Court explained: “The husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract.” State v. Haines , 25 So. 372, 372 ( La. 1899). Similarly, because the husband was responsible for his wife’s behavior toward others, he had a right to subject his wife to “chastisement” for disobedience as long as he did not inflict permanent injuries. If another man “alienated” his wife’s affections, the husband could sue that man in tort. The theory was that the other man had trespassed on or taken his property. These rules, roles, rights, and obligations during marriage were largely fixed and rigid. Generally speaking, courts refused to enforce agreements that altered the responsibilities during marriage.
Family law also regulated the boundaries between the races. Before the Civil War, throughout most of the South, blacks were not permitted to marry. Slaves lacked the legal capacity to consent. Moreover, slaves had no right to control their households—where they lived, or with whom they lived. Female slaves belonged to their white masters, not to their husbands. Even when slaves formed family units, white masters could sell and thus separate any member of the family. Thus, marriage laws served to reinforce the distinction between the races by reaffirming the premise that slaves had no rights. Even after emancipation, many states retained, and some even strengthened, their miscegenation laws, which prohibited marriage between blacks and whites. In other words, even after blacks throughout the country gained the right to marry, marriage laws continued to reinforce the distinction between and separation of the races.
The law also channeled people into marriage by other means. Until the mid-twentieth century, marriage was the only place in which one could legally have sex. State laws generally criminalized sex outside of marriage (fornication), living together outside marriage (cohabitation), and having children outside of marriage (bastardy). Moreover, children born outside of marriage were subjected to harsh legal disabilities. At common law, a nonmarital child was considered filius nullius —the child of no one. Neither parent had an obligation to support a nonmarital child, and the child had no right to inherit through either parent. The mother of a nonmarital child generally was required to support the child, but the “majority of the courts. . . held that without legislation on the subject, the father of a [nonmarital] child [could] not be required to provide for its support.” G. v. F.O.P. , 466 S.W.2d 41, 41–42 (Tex. Civ. App. 1971), rev’d , Gomez v. Perez , 409 U.S. 535 (1973). Similarly, while most states permitted a nonmarital child to inherit through his or her mother, they did not permit the child to inherit through his or her father unless the child had been “legitimated.” Some states prohibited intestate inheritance through nonmarital fathers in all situations.
The law also affirmatively channeled people into marriage through the doctrine of common-law marriage, which most states recognized by the end of the nineteenth century. Under this doctrine, even relationships that did not comply with the institution’s formal requirements were treated as legal marriages if they looked sufficiently like a marriage.
Gradual Changes to the Marital Relationship
The nineteenth century brought about a number of important developments. Starting in the first half of the century, states gradually began to extend more rights to married women through the Married Women’s Property Acts. Early versions of these acts enabled women to inherit property free of their husbands’ debts and to maintain ownership and control over their separate estates. States were slower, however, to protect married women’s rights to ownership and control over their own wages earned in the labor market. Nancy Cott, Public Vows: A History of Marriage and the Nation 168 (2002). By the early twentieth century, almost all states permitted a married woman to own property, to sue and be sued, to enter into contracts, and to control the disposition of her property upon her death.
Despite the formal expansion of the rights of married women, many vestiges of coverture persisted. For example, even well into the twentieth century, it was generally understood that a woman’s household labor belonged to her husband. Id.; see also Reva B. Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor , 1850–1880 , 103 Yale L.J. 1073 (1994). Married women’s domicile continued to be defined by their husband’s domicile, and even today most women take their husband’s surnames. In addition, despite the formal elimination of the husband’s right to chastise his wife, until the latter half of the twentieth century husbands rarely faced legal repercussions for such conduct, and marital rape largely remained unpunishable. Even today, many states treat rape by a spouse differently than rape by a stranger, imposing more stringent procedural requirements and/or treating it as a less serious offense.
An Increasing Diversity in Family Structure
While the nineteenth century brought about some changes in the rights and obligations within a marriage, a family consisting of two adults in their first marriage and their biological children continued to be the overwhelmingly dominant family structure well into the twentieth century. Amy L. Wax, Engines of Inequality: Class, Race, and Family Structure , 41 Fam. L.Q. 567 (2007). This began to change in the 1960s, when the rate of cohabiting couples began to increase dramatically. In 1960, fewer than half a million different-sex couples cohabited. According to the U.S. Census Bureau, this number increased almost 1,000 percent to 4.9 million by 2000. Also changing dramatically was the number of households headed by an unmarried person. According to the 2005 American Community Survey, 50.3 percent—a majority—were headed by an unmarried person.
Several forces contributed to these trends. Starting with Griswold v. Connecticut , 381 U.S. 479 (1965), striking down a Connecticut statute criminalizing the use of contraceptives by married couples, the Supreme Court extended constitutional protections for various forms of reproductive freedoms. These decisions also led to the repeal and overturning of statutes criminalizing sex outside of marriage. Coinciding with these legal developments were medical advances related to contraception, including the advent of the birth control pill, which became available in 1960. The right to engage in sex outside of marriage and women’s ability to have greater control over contraception and reproduction made nonmarital relationships more attractive.
As the number of cohabiting couples increased, so did the number of children born outside of marriage. In 1960, about 5 percent of children were born to unmarried mothers. According to the National Center for Health Statistics (NCHS), by 2007 39.7 percent of all children were born to unmarried women.
While cohabitation rates have increased across all demographic groups, they have been greatest for African Americans, Latinos, and lower income people of all races and ethnicities. Likewise, the percentage of children born outside of marriage is higher for children of certain races. According to a 2008 NCHS report, in 2005 69.3 percent of children born to black women were nonmarital and 48 percent of children born to Latina women were nonmarital. These single parent families tend to be poor. “Among individuals in families with an unmarried head and children present (five-sixths of whom are female unmarried heads), the poverty rate [is] 40.3 percent.” Hilary Hoynes et al., Poverty in America: Trends and Explanations , 20 J. Econ. Persp. 47, 49 (2006).
As the number of nonmarital children grew, the Supreme Court gradually chipped away at many of the legal disabilities that historically were imposed on these children in cases such as Levy v. Louisiana , 391 U.S. 68 (1968), and Weber v. Aetna Casualty & Surety Co. , 406 U.S. 164 (1972). Following the Court’s lead, state legislatures began revising their statutes to extend protections to nonmarital children. All fifty states now extend the rights and responsibilities of parenthood on both the mothers and fathers of nonmarital children, and nonmarital children are entitled to inherit through both of their parents. Despite these advancements, nonmarital children continue to be treated differently from marital children. For example, it continues to be more difficult for nonmarital children to claim U.S. citizenship through their fathers. Nguyen v. I.N.S. , 533 U.S. 53 (2001).
Another development that fueled the rise of cohabiting couples was the increase in divorce rates. Save the decade or two after World War II, divorce rates increased through much of the twentieth century. This large and growing class of divorced persons was more likely to cohabit prior to or in lieu of marrying again.
What divorce meant and how it was obtained also changed. During most of our history, divorces were granted only upon a showing of fault by an innocent spouse. In 1969, California became the first state to adopt “no fault” divorce, permitting parties to end their marriage simply upon a showing of “irreconcilable differences.” Within sixteen years, every other state had followed California’s lead to some degree. While this shift did not have a dramatic impact on divorce rates, it did impact social and cultural understandings of marriage and divorce.
Progress with Same-Sex and Unmarried Couples
The end of the twentieth century also brought about dramatic developments related to lesbian and gay families. Starting in the 1980s, some private and public entities began to extend affirmative rights to same-sex couples. For example, in 1982 the Village Voice became the first employer to extend domestic partner health insurance benefits to the same-sex partners of its employees. Gradually some municipalities followed suit. In 1997, Hawaii became the first state to establish a statewide alternative legal status for same-sex couples when it passed its reciprocal beneficiary statute. In 2000, Vermont broke ground when it established civil unions. Couples in a civil union are extended all of the state-conferred rights and responsibilities of marriage; however, civil union spouses continue to be denied all of the 1,138 federal rights and responsibilities of marriage. Letter from Dayna K. Shah, Associate General Counsel, Government Accounting Office, to Senator Bill Frist, GAO-04-353R (Jan. 24, 2004), www.gao.gov/new.items/d04353r.pdf. (And, in fact, as a result of the federal Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419, same-sex couples who are validly married in their home states also are denied all of these 1,138 federal rights and responsibilities.)
Further, in Lawrence v. Texas , 539 U.S. 538 (2003), the Supreme Court struck down the remaining statutes prohibiting sodomy, including sodomy between same-sex couples. With the decline of barriers to lesbian and gay unions and the corresponding increase in legal protections, the number of lesbian and gay people living openly and forming families has expanded. Using data from the 2000 U.S. Census, the Williams Institute found that lesbian and gay couples lived in all fifty states and that 20 percent of them are raising children.
In addition to the more comprehensive alternative statuses noted above, other jurisdictions provide more limited protections to unmarried couples. Some states extend these protections to same-sex and different-sex unmarried couples. For example, Colorado recently passed a law that extends to registered couples a number of important rights, including property rights; the right to be a beneficiary under public employee retirement, pension, and health insurance plans; hospital visitation rights; and the right to sue for wrongful death.
Over time, the common law also has extended greater protections to same-sex and different-sex couples that are neither married nor in one of the formal alternative statuses referenced above. As Professor Ann Laquer Estin explained in her article Ordinary Cohabitation , courts in most states enforce contracts and/or recognize various equitable claims between unmarried cohabitants with regard to property interests. That said, for most legal purposes, these relationships are not treated like marriages under the common law. Generally speaking, in the absence of an agreement or a formal alternative legal status such as a civil union, unmarried cohabitants do not take on or acquire obligations to support each other or to share in their partner’s earnings. There also has been very little movement toward extending tort claims to nonmarital partners.
Further Evolution of the Marital Family
Not only are many more people now living in family structures other than marriage, but there is also increasing diversity in what marital families look like. While the overall numbers remain relatively small, since the Supreme Court’s decision in Loving v. Virginia , 388 U.S. 1 (1967), rendered unconstitutional all remaining antimiscegenation statutes, the percentage of Americans who are in interracial relationships has continued to increase steadily. Sociologist Michael Rosenfeld has reported that while fewer than 2 percent of married couples were interracial in 1970, that number had increased to 7 percent by 2005.
With regard to sex, today, other than the gender requirements for entrance that still exist in most (but not all) states, states have repealed or struck down all or almost all other laws that distinguish between men’s and women’s roles and legal rights and responsibilities in marriage.
Recent decades also have brought about advancements with respect to the legal remedies for domestic violence between spouses. Although the notion that husbands had the right to chastise their wives had long been discredited, it was not until the 1980s that the legal establishment began to provide meaningful remedies for wives victimized by domestic violence. Ruth Colker, Marriage Mimicry: The Law of Domestic Violence , 47 William & Mary L. Rev. 1841, 1851–53 (2006). Before that time, courts tended to be reluctant to pierce the veil of “marital privacy” in most domestic violence cases. Moreover, today all states have revised and limited (at least to some degree) their statutes previously exempting marital rape. Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape , 88 Cal. L. Rev. 1373 (2000).
The formal legal breakdown of gender roles and greater flexibility in the structure and understanding of marriage has been reflected and reinforced by social and cultural changes with respect to the roles of men and women in the family. Historically, husbands were the financial providers for the family. The twentieth century has seen a dramatic surge in the participation of women, including wives, in the paid work force. According to the U.S. Department of Labor, in 1950 about one-third of women participated in the paid labor force. By 1998, this number had increased to approximately 60 percent. As a result of this increase, by 2008 the Department of Labor reported that women made up almost 50 percent of the total paid labor force. Thus, only a small minority—fewer than 25 percent—of couples today reflect the traditional image of the one wage earner family. Cynthia Grant Bowman, Social Science and Legal Policy: The Case of Heterosexual Cohabitation , 9 J.L. & Fam. Stud. 1, 21 (2007). Since the 1970s, courts have been increasingly likely to enforce contractual arrangements between spouses, allowing them to further alter their respective rights and responsibilities in marriage.
The gendered roles in marriage have not, however, disappeared altogether. Despite the fact that more women are contributing financially to the household, women and wives generally continue to perform the vast majority of household and caretaking responsibilities in the home. As Arlie Hochschild and Ann Machung reported in The Second Shift , “[e]ven when couples share more equitably in the work at home, women do two-thirds of the daily jobs at home, like cooking and cleaning up.”
The partial but still incomplete process of breaking down gender distinctions in marriage is reflected and reinforced by the fact that, as of June 2009, six states permit or soon will permit same-sex couples to marry. Massachusetts led the way in 2004, following the state’s high court decision in Goodridge v. Department of Public Health , 798 N.E.2d 941 (Mass. 2003). And in 2009 Vermont became the first state to extend marriage to same-sex couples legislatively. At the same time, however, many states have been moving in the opposite direction. Currently, forty-two states have statutory or constitutional provisions limiting marriage to the union of one man and one woman. Some of these states refuse to extend any “marital rights” to nonmarital couples. See, e.g., National Pride at Work, Inc. v. Governor of Michigan , 748 N.W.2d 524 ( Mich. 2008).
More Ways to Bring Children into Families
In addition to greater diversity in the legal and living arrangements of the adults in families, the way that children are brought into families has become more varied. A small but significant number of children are brought into the family through adoption. According to the U.S. Census, in 2000 2.5 percent of children were adopted. Adoption did not exist at common law. The first comprehensive adoption statute was not passed until 1851 in Massachusetts. Since that time, the types of adoptions available to prospective parents have increased. Today, in addition to agency adoptions, most states permit independent or direct placement adoptions. Agency adoptions generally involve the placement of children who have been removed from their homes or where the parent or parents have already voluntarily relinquished their rights to the child. In a direct placement adoption, the birth parents directly interact with and choose the prospective adoptive parents, with or without the assistance of an intermediary. Since World War II, increasing numbers of American families are adopting children born abroad through intercountry or international adoptions.
More families—marital and nonmarital—are creating families through various forms of assisted reproductive technologies. Although the simplest form of assisted reproduction—alternative or artificial insemination—has been available since the late eighteenth century, it did not become commonly used until the 1960s, when sperm banks began to open. Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination , 77 Wash. L. Rev . 1035, 1049 (2002). In the early 1980s, in vitro fertilization became available, making it possible to separate genetics from gestation. These developments in turn led to greater use of surrogacy, whereby a woman agrees to gestate an embryo with the intention of relinquishing the resulting child to the intended parent(s). To varying degrees, all of these technologies raise difficult and interesting questions about parentage.
The Future of the Family
It remains to be seen what the American family will look like in ten or twenty years. Will the average age of first marriages continue to increase? Will the divorce rate remain stable or even decrease? Will gendered roles within marriage persist? Will more states provide legal protections for nonmarital families? The available data suggest that the number of adults and children who spend some portion of their life in a nonmarital family will continue to increase. That said, while marriages today look different, are formed at different times, and are dissolved differently and at different times than they were in the past, at least in the near future it appears that marriage will remain a prominent family structure and cultural force.