Contest and Change
As a consequence of negotiation, the law changes incrementally through an incessant process of contestation. Lawyers specialize in introducing new distinctions, new analogies, new arguments, and new doctrines. What is more, courts respond, however slowly, to changes in social life at large. Legislatures also enact new statutes in response to gradual social changes and to pressure from mobilized constituencies. Amid these pressures, however, courts thread their own path, leaving precedents that influence subsequent decisions. As a consequence, the grid of legally available relations changes, as does the matching with media and transactions.
The American system involves the additional complexity of variation from state to state. Despite some influence of predominant law schools, doctrines, and national courts, plus a degree of convergence during the twentieth-century, individual states follow distinctive trajectories concerning laws governing intimacy. In his authoritative legal history of nineteenth-century American marriage, Hendrik Hartog documents extensive state variation in this regard. When it came to laws of marriage and divorce, he explains, “every state had a law of marriage. Every state had its legal peculiarities” (Hartog 2000: 12). Negotiation between everyday practices and legal practices therefore took place not only in terms of American legal culture but in terms of each state’s laws.
Nevertheless, some overall trends did occur. Take the case of common-law marriage. Earlier we saw courts struggling over the propriety of various forms of heterosexual cohabitation and with the rights and obligations attached to them. In her legal history of “nonmarriage,” Ariela Dubler traces remarkable changes in the legitimacy of such arrangements. Nineteenth-century state courts, for instance, increasingly endorsed the doctrine of common-law marriage, “by which courts could recognize unsolemnized, long-term, sexual unions as marriages” (Dubler 1998: 1886). Although some states rejected the doctrine, and states varied in their precise definition of common-law marriage, standard rules of thumb included cohabitation, sharing of bed and board, public self-representation, public recognition, and the absence of legal impediment (such as an existing marriage) to the union. By the late nineteenth century, Du – bler reports, most American states treated such relations as legally permissible and binding. States typically distinguished common-law marriages from other forms of cohabitation, such as bigamy and temporary liaisons. While opponents decried what they saw as public endorsement of immoral relations, supporters justified their approval by defining marriage as foremost a private civil contract. The U. S. Supreme Court agreed, endorsing the validity of a long-term informal union in an 1877 decision (Meister v. Moore 96 U. S, 76 (1878); see Dubler 1998: 1889).
Around the 1930s, American law concerning intimate relationships underwent a major shift. Courts and legislatures moved to dislodge common-law marriage as a legally recognized relationship. They also withdrew recognition from engagement as a legally enforceable contract, denied actions against third parties for interference with a couple’s affections, yet increased the power of married couples to collect from third parties for deaths or injuries depriving a spouse of affectionate companionship. Legislatures, lawyers, courts, and juries converged, in effect, on sharpening the boundary that separated relations of legal marriage from all other relations. During the 1970s, another partial shift occurred, as American law began to recognize analogies between the rights of legally married couples and other forms of companionship—never erasing the boundary between marriage and nonmarriage, but extending some rights across the boundary. Clearly, the array of relationships recognized, distinguished, prohibited, or defended by the law altered significantly over time. In each of these regards, courts did not merely name and distinguish relations, they matched them with appropriate transactions and media. We can see change more clearly by concentrating on rights and obligations of legally married couples. Consider two significant shifts that took place in the United States from the early nineteenth century to the recent past concerning coverture and consortium.