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.