A Historical Guide to the Future of Marriage for Same-Sex Couples


A HISTORICAL GUIDE TO THE FUTURE OF
MARRIAGE FOR SAME-SEX COUPLES

SUZANNE B. GOLDBERG

History and tradition have emerged, together, as contemporary
flagship arguments for limiting marriage to different-sex couples.
According to advocates of "traditional marriage," same-sex couples can be
excluded from marriage today because marriage always has been reserved
to male-female couples. 2 Further, some contend, the restriction of marriage
to different-sex couples has long been understood as necessary to provide
channels to control naturally procreative (i.e., male-female) relationships. 3

. Associate Professor, Rutgers School of Law-Newark. My thanks for
contributions to the attached amicus brief to the history and family law scholars on whose
behalf the attached brief was filed, Susan Sommer at Lambda Legal Defense, the cooperating
attorneys at Arnold & Porter, and Henry Monaghan. Additional thanks to Todd Anten for
outstanding research assistance.

I Arguments related to the well-being of children, which also feature prominently

in litigation and the public debate, will be set aside here, as the brief that follows this
introduction focuses on history and tradition. For amicus briefs related to children's best
interests claims, see, for example, Brief of Amici Curiae American Psychological
Association et al. in Support of Plaintiffs-Respondents, Hernandez v. Robles, 2005 N.Y. Slip
Op. 09436 (N.Y. App. Div. 1st Dep't Dec. 8, 2005) (No. 103434/04); Brief Amicus Curiae
of the Massachusetts Psychiatric Society et al., Goodridge v. Dep't of Pub. Health, 798
N.E.2d 941 (Mass. 2003) (No. SJC-08860). Many of the amicus briefs cited in this essay can
be found on the websites of the organizations litigating challenges to marriage laws on
behalf of lesbian and gay couples. See, e.g., http://www.aclu.org/lgbt/index.html;
http://glad.org/GLADCases/#marriage_&_civil-unions; http://www.lambdalegal.org;
http://www.nclrights.org/.

2 See, e.g., Brief of Defendants-Respondents at 55, Lewis v. Harris, 875 A.2d 259

(N.J. Super. Ct. App. Div. 2005) (No. A-2244-03T5) ("Plaintiffs' desire to enter into a same-
sex marriage sets them apart from the historic understanding of the institution of marriage.");
see also Hernandez v. Robles, 2005 N.Y. Slip Op. 09436, at *9, (N.Y. App. Div. 1st Dep't
Dec. 8, 2005) (objecting to lower court's validation of same-sex couples' right to marry on
grounds that it "redefin[ed] traditional marriage"); Lewis, 875 A.2d at 270 (describing the
State's opposition to same-sex marriage as "grounded on historical tradition"); Shields v.
Madigan, 5 Misc. 3d 901, 903 (N.Y. Rockland Cty. 2004) (characterizing the State's
argument to be that New York's marriage statute "embodies the well-recognized historical
tradition of opposite-sex marriage in our culture").

3 See, e.g., Morrison v. Sadler, 821 N.E.2d 15, 31 (Ind. Ct. App. 2005) ("The
differentiation between opposite-sex and same-sex couples in Indiana marriage law is based
on inherent differences reasonably and rationally distinguishing the two classes: the ability to
procreate 'naturally."'); Appellant's Brief at 45-46, Hernandez, 2005 N.Y. Slip Op. 09436
(N.Y. App. Div. 1st Dep't Dec. 8, 2005) (No. 103434/04) (arguing that "the State could



Columbia Journal of Gender and Law

However popular these claims might be in op-ed pieces and on talk
radio, when they are made in the litigation context, the question is not
whether they have rhetorical appeal but rather whether they can explain the
State's different marriage rules for gay and non-gay couples. For this
purpose, broad-brush invocations of marriage's history will not suffice.

Yet, it is precisely these sorts of superficial references to tradition
that have captivated courts deciding a variety of challenges to marriage
restrictions. Pick a case that touches on marriage from federal or state court,
from the nineteenth or twentieth century, and there is a reasonable chance
that marriage will be described as a fixed, transhistorical institution that is
foundational to civilization. Typical is the assertion of the Supreme Court in
Skinner v. Oklahoma, the first case to identify marriage as a fundamental
right: "Marriage and procreation are fundamental to the very existence and
survival of the race." 4

A cohort of more recent cases that specifically address marriage
laws' exclusion of gay and lesbian couples follows this course. Courts in
New York, New Jersey, and Arizona, among others, have rejected
constitutional challenges brought by gay and lesbian couples on the grounds
that the different-sex couple requirement has long been a part of the state's
marriage law.

determine that it is important to encourage opposite-sex couples to marry to establish long-
term relationships given the financial and legal obligations parents bear for their children").

4 316 U.S. 535, 541 (1942); see also Loving v. Virginia, 388 U.S. 1, 12 (1967)
("The freedom to marry has long been recognized as one of the vital personal rights essential
to the orderly pursuit of happiness by free men."); Maynard v. Hill, 125 U.S. 190, 211 (1888)
(describing marriage as "an institution, in the maintenance of which in its purity the public is
deeply interested, for it is the foundation of the family and of society, without which there
would be neither civilization nor progress").

5 See, e.g., Hernandez, 2005 N.Y. Slip Op. 09436, at *10 (Catterson, J., concurring)
("The concept of marriage has traditionally been accepted by courts throughout the United
States as the union of a man and a woman. Any change in that frequently articulated
heterosexual construct would be a revolution in the law rather than evolution."); Lewis, 875
A.2d at 264 (concluding that "marriage between members of the same sex has no historical
foundation or contemporary societal acceptance and therefore is not constitutionally
mandated"); Standhart v. Sup. Ct., 77 P.3d 451, 460 (Ariz. Ct. App. 2003) ("The history of
the law's treatment of marriage as an institution involving one man and one woman, together
with recent, explicit reaffirmations of that view, lead invariably to the conclusion that the
right to enter a same-sex marriage is not a fundamental liberty interest protected by due
process."); Samuels v. N.Y. State Dep't of Health, No. 1967-04, at 7 (N.Y. Albany Cty. Dec.
7, 2004) (validating New York's discriminatory marriage rule on its view of the "historical,
legal, and cultural understanding of marriage"); Shields, 5 Misc. 3d at 907 ("[P]reserving the
institution of marriage for opposite-sex couples serves the valid public purpose of preserving
the historic institution of marriage as a union of man and woman ....); see also Jones v.
Hallahan, 501 S.W.2d 588, 589 (Ky. 1973) ("In all cases, . . .marriage has always been
considered as the union of a man and a woman and we have been presented with no authority
to the contrary."); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) ("The institution of
marriage as a union of man and woman.., is as old as the book of Genesis.").

250 [Vol. 15:1



2006] A Historical Guide to the Future of Marriage

This glib treatment of marriage as historically static and at risk of
disintegration should same-sex couples be permitted to marry has caused
considerable frustration among scholars of history and family law. There is,
of course, the general point, which the Supreme Court has endorsed
repeatedly, that history alone cannot justify retention of discriminatory
rules.6 More significant, however, is the reliance on an inaccurate history of
marriage. This history, it turns out, contradicts directly the argument that
marriage has a set of fixed, unchangeable criteria that represent its essence,
including the different-sex restriction at issue in the contemporary marriage
litigation.

In fact, marriage has undergone near-constant evolution to the point
that marriage today bears little resemblance to marriage in the past. One
hundred fifty years ago, a woman lost virtually all of her independent legal
identity upon marriage. Even fifty years ago, in numerous jurisdictions,
access to divorce was extremely limited, rape within marriage was not a
crime, and bans on interracial marriage remained in force. The real history
of marriage is thus an extended and consistent account of change to
elements of marriage once considered essential.

Because misconceptions of marriage's history have played such an
important part in justifying the male-female marriage eligibility requirement,
history and family law scholars have become part of the fabric of the
litigation over the rights of same-sex couples to marry. In most of the major
marriage cases across the country, these scholars have filed briefs to make
the basic, yet critical, point that history does not bear out the claim that
rules of marriage that were considered fundamental in the past should
survive challenge by virtue of their vintage.'

6 See, e.g., Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18 (1991) ("'[N]either the

antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through
the centuries insulates it from constitutional attack ... ') (alteration in original) (quoting
Williams v. Illinois, 399 U.S. 235, 239 (1970)); Marsh v. Chambers, 463 U.S. 783, 790
(1983) ("Standing alone, historical patterns cannot justify contemporary violations of
constitutional guarantees .... "); Walz v. Tax Comm'n, 397 U.S. 664, 678 (1970) ("It is
obviously correct that no one acquires a vested or protected right in violation of the
Constitution by long use, even when that span of time covers our entire national existence
and indeed predates it.").

7 See Hernandez, 7 Misc. 3d 459, 483 (N.Y. Cry. 2005) (observing that "the
concept of marriage has steadily evolved beyond a rigid static 'historical' definition"), rev'd,
2005 N.Y. Slip Op. 09436, at *29 (N.Y. App. Div. 1st Dep't Dec. 8, 2005) (Saxe, J.,
dissenting) ("The common understanding of the term marriage has not always been what it is
today. The institution of marriage has changed remarkably over the centuries. . .. [The]
long-accepted assumptions that once defined marriage have eroded.").

8 See, e.g., Brief of Professors of History and Family Law as Amici Curiae in

Support of Plaintiffs-Respondents, Hernandez, 2005 N.Y. Slip Op. 09436 (N.Y. App. Div.
1 st Dep't Dec. 8, 2005) (No. 103434/04); Brief of the Professors of the History of Marriage,
Families, and the Law as Amici Curiae in Support of Plaintiffs-Appellants, Lewis v. Harris,
No. A-2244-03T5 (N.J. Oct. 6, 2005); Brief Amici Curiae of History Scholars, Andersen v.



Columbia Journal of Gender and Law

The brief that follows this essay, which was filed in New York's
appellate court, does this work by demythologizing the history of marriage
in New York. It shows that the elements of marriage in New York-
including those once thought essential, such as husbands' control over their
wives in myriad respects-always have been subject to change. Further, the
amici argue, these changes, over time, have rendered the exclusion of same-
sex couples from legal marriage an anachronism.

In addition to charting the changes in the legal independence of
women within marriage, the historians provide important context for
thinking about-and rebutting-the received wisdom that marriage and
procreation always have been and always will be linked. As case law and
the relevant statutory framework make clear, while sexual intercourse has
sometimes been deemed essential to marriage, 9 procreation has not. The
cases with the strongest dicta suggesting a historically grounded link
between the two turn out not to concern procreation at all.' ° Moreover,
many courts explicitly have rejected petitions to annul a marriage because
of a spouse's inability or unwillingness to procreate."

A review of the history of marriage also reveals the exclusion of
same-sex couples to be an outgrowth of an earlier, since-abandoned view
that the State had a legitimate interest in policing gender roles in marriage.
The shift away from sex-based regulation of marriage can be seen not only
in the demise of coverture but also in the judicial and legislative
invalidation of many more recent rules that reinforced different roles for
husbands and wives. These rules, which once were considered fundamental
but since have been rejected, provide for, inter alia, imposition of greater
liability for marital household expenses on husbands than wives, 12

availability of loss of consortium claims to husbands but not wives,13 and
favoritism for mothers (or fathers) for child custody.' 4 With the sex-based

King County, No. 75934-1 (Wash. Feb. 7, 2005); Amici Curiae Brief of the Professors of the
History of Marriage, Families, and the Law, Goodridge v. Dep't of Pub. Health, 798 N.E.2d
941 (Mass. 2003) (No. SJC-08860).

9 See, e.g., Diemer v. Diemer, 8 N.Y.2d 206, 210 (1960) (stating that "a refusal to
have marital sexual relations undermines the essential structure of marriage"); T. v. M., 242
A.2d 670, 674 (N.J. Super. Ct. Ch. Div. 1968) (holding that impotence is a ground for
annulling a marriage); see also Laurence Drew Borten, Note, Sex, Procreation, and the State
Interest in Marriage, 102 COLUM. L. REv 1089 (2002).

1o See infra text accompanying notes 79-86.

11 See infra text accompanying notes 87-92.

12 See infra Part IIl.A.2.c.

'3 See infra Part Ill.A.2.b.

14 See infra Part III.B.2.

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2006] A Historical Guide to the Future of Marriage

distinctions now gone, there is nothing left in marriage law that
distinguishes between the roles of male and female spouses. From a
historical standpoint, then, invalidation-rather than retention--of the
different-sex marriage eligibility rule would be more consistent with the
trajectory of history.' 5

Ultimately, an accurate telling of marriage's history directly
addresses the fear fanned by adversaries of marriage equality: that
marriage-and civilization-will crumble if gay and lesbian couples are
permitted to marry. By providing a longer and broader context for
understanding the evolution of marriage in New York, the historical
account offered in the brief shows that invalidation of the different-sex
marriage eligibility rule, while considered transformative by some, will do
little to change the essence of marriage. After all, at its core, marriage in
New York (and elsewhere) always has been concerned primarily with the
marital partners' interdependence. This focus on interdependence has
remained even as conceptions of spouses' mutually supportive roles have
evolved and traditional marriage rules related to those roles have been
invalidated. If history is any guide, marriage also will survive the change
sought now by same-sex couples, should it occur, just as it has survived so
many changes over time.

15 In this light, the State's insistence on maintaining a different-sex rule for
marriage eligibility can be seen as a last-ditch effort to maintain a gendered distinction in the
roles of spouses within marriage. This instinct to preserve sex roles has not been articulated
explicitly, presumably because much constitutional doctrine makes clear that sex stereotypes
may not be the basis for government action. See, e.g., United States v. Virginia, 518 U.S. 515,
549-50 (1996) (rejecting the State's judgment of what is appropriate for "most women" as
unconstitutional sex stereotyping); J.E.B. v. Alabama, 511 U.S. 127 (1994) (rejecting sex
stereotyping as unconstitutional in exercise of jury peremptory challenges).

253



New York Supreme Court

APPELLATE DIVISION - FIRST DEPARTMENT

DANIEL HERNANDEZ AND NEVIN COHEN,
LAUREN ABRAMS AND DONNA FREEMAN-

TWEED, MICHAEL ELSASSER AND DOUGLAS
ROBINSON, MARY JO KENNEDY AND JO-ANN

SHAIN, AND DANIEL REYES AND CURTIS
WOOLBRIGHT,

PLAINTIFFS-RESPONDENTS

-A GAINST-

VICTOR L. ROBLES, IN HIS OFFICIAL CAPACITY
AS CITY CLERK OF THE CITY OF NEW YORK,

DEFENDANT-APPELLANT

Brief of Professors of History and Family Law as Amici
Curiae in Support of Plaintiffs-Respondentst

t In publishing this brief, the Columbia Journal of Gender & Law has made no
editorial changes other than adjusting the format and citations to conform with THE
BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass'n et al. eds., 18th
ed. 2005).



2006] A Historical Guide to the Future of Marriage

I. INTEREST OF AMICI CURIAE

We are professors of history and family law specializing in the
history of marriage, families, and the law, at universities throughout the
United States. We have written leading books and articles analyzing the
history of marriage and marriage law in the United States. This brief is
submitted to assist the Court's deliberations by offering an analysis of the
history of marriage law and practice based on our scholarship. Our names,
institutional affiliations, and brief biographies are set out in Exhibit E to
Affirmation of Suzanne B. Goldberg in Support of Permission to File a
Brief as Amici Curiae (July 28, 2005).

We adopt the Statement of the Case and Statement of Facts in the
brief of Plaintiffs-Respondents.

H. SUMMARY OF ARGUMENT

The history of marriage in New York is a history of change. Since
the State's earliest days, marriage has undergone continuous reexamination
and revision. Indeed, marriage today-a partnership between two adults
who are equal in the eyes of the law-bears little resemblance to marriage
as it existed at the State's founding or even a few decades ago.

The relevant history demonstrates that all marriage rules remain
subject to meaningful judicial review and that a rule's vintage is not, by
itself, sufficient justification for its retention. Indeed, the historical record
specifically documents the transformation or invalidation of many
traditional features of marriage.

The historical record shows, as well, that New York has invalidated
rules requiring different treatment of men and women in marriage, and that
the State has never treated procreation as essential to marriage. Moreover,
throughout its statehood, New York has not maintained uniformity between
its marriage rules and those of other states.

Further, the ongoing evolution of marriage throughout New York's
history renders implausible the suggestion that marriage, which has
survived so many changes, is too frail to endure the constitutionally
compelled revision of the anachronistic different-sex eligibility rule. To the
contrary, the State continues to recognize a substantial set of rights and
responsibilities of couples as "marriage," even as that set has shed elements
that were considered fundamental to marriage earlier in our history. Nor
have the changes to marriage deterred New Yorkers, who continue to
embrace marriage overwhelmingly as the mechanism for achieving state
recognition of their relationships. Even in the wake of significant
transformation, marriage has survived, all the while remaining true to its
core purpose of recognizing committed, interdependent partnerships
between consenting adults.

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256 Columbia Journal of Gender and Law [Vol. 15:1

III. ARGUMENT

A. The Legal Definition of Marriage in New York Has Never Been
Static; Features of Marriage Once Thought Essential Have Been
Revisited and Rejected Consistently Over Time.

In finding that marriage "is not a stagnant institution" and that
many longstanding and once-fundamental marriage rules have been
invalidated, the court below recognized correctly that the history of the
exclusion of same-sex couples from marriage describes but does not explain
or justify the continuation of that rule.' As legal developments throughout
New York's history demonstrate, the State's courts and legislature have
continuously adjusted and abandoned elements once thought to represent
the foundations of marriage.

1. The Shift Away From the Common Law Coverture Regime
Transformed the Meaning of Marriage in New York in the Nineteenth
and Early Twentieth Centuries.

Until well into the nineteenth century, marriage in New York meant
the complete merger of a woman's legal identity into that of her husband.
Indeed, for most people, marriage was unimaginable in any other way.2 As

'See Hemandez v. Robles, 7 Misc. 3d 459, 488, 489-90 (N.Y. Cty. 2005). Several
courts in New York have missed this important distinction between history as descriptive
and history as a justification for discrimination. See, e.g., Samuels v. N.Y. State Dep't of
Health, No. 1967-04, at 7 (Albany Cty. Dec. 7, 2004) (resting its validation of the
discriminatory marriage rule on its view of the "historical, legal, and cultural understanding
of marriage"); Shields v. Madigan, 5 Misc. 3d 901, 907 (Rockland Cty. 2004) (holding that
the exclusion of same-sex couples from marriage "serves the valid public purpose of
preserving the historic institution of marriage as a union of man and woman").

The City likewise mistakenly equates the historical exclusion of same-sex couples
with the essence of marriage. See, e.g., Appellant's Br. at 30 (maintaining that history does
not "confer the status of 'fundamental right' on same-sex marriage").

2 Religious tradition and civil law both shaped early models of marriage. See

MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-
CENTURY AMERICA 65-66 (1985) (observing shifts in the treatment of marriage as a
sacrament). However, New York's government, since colonial times, has overseen marriage
as a civil institution rather than a religious contract. See Maynard v. Hill, 125 U.S. 190, 212
(1888), citing Wade v. Kalbfleisch, 58 N.Y. 282 (1874) ("The general statute.., declares
[marriage] a civil contract, as distinguished from a religious sacrament.").



2006] A Historical Guide to the Future of Marriage

the Court for Correction of Errors put it in 1830, 3 "the wife... and her
husband constitute but one person."4

For both men and women, negating a married woman's
independent legal capacity, including her capacity to own property in her
own right, was understood as one of marriage's indispensable elements. As
the Supreme Court of Judicature wrote in 1824, "a husband, in virtue of his
marriage, becomes absolute owner of the goods and chattels of his wife."5

The collapse of women's legal identity upon marriage extended to
wives' ability to contract as well. As the Supreme Court of Judicature
observed in 1819, "[i]t is a settled principle of the common law, that
coverture disqualifies a feme from entering into a contract or covenant,
personally binding upon her."6 Husbands' control over their wives meant,
too, that women had limited recourse in response to "restraint" by their
husbands.

This gendered concept of marriage reflected in coverture emerged
from the view that the colonial family was a "little commonwealth" whose
members were bound together by a well-defined set of reciprocal duties and
the shared aims of domestic tranquility. ' The husband was, by legal
entitlement and informal social code, the "governor" of this colonial

3 As this Court is aware, from early statehood through 1847, the State had two high
courts: the Court for the Correction of Errors (N.Y.) and the Court of Chancery (N.Y. Ch.).
WILLIAM H. MANz, GIBSON'S NEW YORK LEGAL RESEARCH GUIDE 116-17 (3d ed. 2004). The
Supreme Court of Judicature (N.Y. Sup. Ct.) functioned as an intermediate appellate court
from 1821-1847. Id.

4 Martin v. Dwelly, 6 Wend. 9 (N.Y. 1830); see also People ex rel. Barry v.
Mercein, 3 Hill 399, 407 (N.Y. Sup. Ct. 1842) ("The very being or legal existence of the
woman is suspended during the marriage, or, at least, is incorporated and consolidated into
that of the husband.") (citation omitted); NANCY F. COTT, PUBLIC Vows: A HISTORY OF

MARRIAGE AND THE NATION 11 -12 (2000) (describing the sudden change in a woman's rights
upon marriage under the coverture regime).

5 Udall v. Kenney, 3 Cow. 590 (N.Y. Sup. Ct. 1824); see also Barber v. Harris, 15
Wend. 615 (N.Y. Sup. Ct. 1836) ("[D]uring the life of the husband, he undoubtedly has the
absolute control of the estate of the wife, and can convey or mortgage it for that period.").

6 Jackson ex dem. Clowes v. Vanderheyden, 17 Johns. 167, 169 (N.Y. Sup. Ct.

1819); see also Wood v. Genet, 8 Paige Ch. 137 (N.Y. Ch. 1840) ("[I]t is perfectly well
settled that a feme covert cannot bind herself, personally, by any contract or
agreement ... ").

7 Mercein, 3 Hill at 408 ("[TIhe courts of law will still permit the husband to
restrain the wife of her liberty in case of any gross misbehavior."); see also Reva B. Siegel,
"The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2123
(1996) (explaining the common law view that since a husband was legally liable for his
wife's misbehavior, he also possessed the power to "restrain" her).

8 GROSSBERG, supra note 2, at 5 (citation omitted).

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Columbia Journal of Gender and Law

household. 9 The wife and children, in turn, were dependents within the
husband's domain.'0

Against this background, a woman's "civil death" upon marriage
was seen as both natural and essential to the healthy continuation of
marriage and the broader society." As the Supreme Court of Judicature
explained in 1820, "no man of wisdom and reflection can doubt the
propriety of the rule, which gives to the husband the control and custody of
the wife.' 2 "[T]his socially constructed rule [of unity] was identified as
part of 'the natural order of things.""'

,
3 Consequently, coverture was also

seen as necessary "to preserve the harmony of the marriage relationship.' 14

But by the middle nineteenth century, the institution of marriage
had changed considerably. Marriage no longer meant the absolute legal
subordination of women to their husbands. In 1848, New York became one
of the first states in the country to authorize married women to own
property as independent individuals.' 5 The Act provided in part:

The real and personal property of any female who may hereafter
marry, and which she shall own at the time of marriage, and the
rents issues and profits thereof shall not be subject to the disposal
of her husband, nor be liable for his debts, and shall continue her
sole and separate property, as if she were a single female.' 6

9Id.

1o See MARY ANN MASON, FROM FATHER'S PROPERTY TO CHILDREN'S RIGHTS: THE

HISTORY OF CHILD CUSTODY IN THE UNITED STATES 6-14 (1994) (discussing colonial parents'
rights and responsibilities).

" See PEGGY A. RABKIN, FATHERS TO DAUGHTERS: THE LEGAL FOUNDATIONS OF
FEMALE EMANCIPATION 19 (1980) (discussing married women's legal status in New York
prior to 1848).

12 Jaques v. Methodist Episcopal Church, 17 Johns. 548, 584 (N.Y. Sup. Ct. 1820).

13 Isabel Marcus, Locked In and Locked Out: Reflections on the History of Divorce

Law Reform in New York State, 37 BUFF. L. REv. 375, 392 (1988) (citation omitted); see also
HENDRIK HARTOG, MAN & WIFE IN AMERICA: A HISTORY 102-03 (2000) (describing the
nineteenth century's perception of coverture "as a simple and sincere expression of human
natures," and "based on unchanging scriptural truth").

14 Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality,

Federalism, and the Family, 115 HARv. L. REv. 947, 996 (2002).

15 Doris Jonas Freed et al., Married Women's Rights, N.Y.L.J., Feb. 26, 1991, at 3.

16 Act of April 7, 1848, ch. 200 § 1, 1848 N.Y. Laws 307.

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2006] A Historical Guide to the Future of Marriage

The following year, the Act was amended to provide married women with
the power to contract as well.' 7

Not surprisingly, the opponents of these changes proclaimed that
removing the husband from his role as the "ultimate locus of power within
the home" would lead to domestic chaos and the destruction of the nation.'"
In 1844, for example, a New York State legislative committee observed
"that allowing married women to control their own property would lead 'to
infidelity in the marriage bed, a high rate of divorce, and increased female
criminality,' while turning marriage from 'its high and holy purposes' into
something arranged for 'convenience and sensuality." ' 19 A prominent New
York lawyer opposed the Act out of similar fears that women's independent
property ownership would lead "husband and wife [to] become armed
against each other to the utter destruction of the sentiments which they
should entertain towards each other, and to the utter subversion of true
felicity in married life."2°

Despite these concerns, the element of legal unity of spouses, which
had been thought of as essential to marriage since statehood, continued to
change throughout the 1850s and 1860s through a stream of legislative acts
and judicial decisions. These changes included statutes protecting married
women's savings deposits,21 ensuring married women the right to vote as
stockholders in elections, 22 and protecting a woman's right to sue and be
sued23 and to keep her earnings during marriage (the "Earnings Act").24

Reflecting New York's leadership role in altering the meaning of marriage,

17 Act of April 11, 1849, ch. 375 §§ 3-4, 1849 N.Y. Laws 528 (authorizing a

married woman "to convey and devise real and personal property... as if she were
unmarried").

18 GROSSBERG, supra note 2, at 282.

19 E.J. GRAFF, WHAT IS MARRIAGE FOR? THE STRANGE SOCIAL HISTORY OF OUR

MOST INTIMATE INSTITUTION 30-31 (1999).

20 RABKIN, supra note 11, at 95 (quoting G. BISHOP & W. ATTREE, REPORT OF THE

DEBATES AND PROCEDURES OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF

THE STATE OF NEW YORK 1846 1057 (1846)).

21 Act of March 25, 1850, ch. 91, 1850 N.Y. Laws 142.

22 Law of June 30, 1851, ch. 321, 1851 N.Y. Laws 616.

23 The provisions of the Earnings Act allowing women to sue and be sued were

repealed in 1880 and then reinstated a decade later. Joseph A. Ranney, Anglicans, Merchants,
and Feminists: A Comparative Study of the Evolution of Married Women's Rights in
Virginia, New York, and Wisconsin, 6 WM. & MARY J. WOMEN & L. 493, 528-29 (2000).

24 Act of March 20, 1860, ch. 90, 1860 N.Y. Laws 157.

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Columbia Journal of Gender and Law

the Earnings Act has been described as arguably the nation's "boldest"
legislation on behalf of married women's legal rights.25

Courts played a significant role in determining the elements of
marriage. At first, for example, they adhered to the previously settled view
that married women were limited in their ability to contract. 26 By 1908,
however, the Court of Appeals rejected that position: "Courts of law now
recognize the separate existence of a husband and his wife the same as
courts of equity and give to each the same rights and remedies., 27

New York's courts likewise eroded earlier rules limiting wives'
ability to sue in tort. Traditional requirements that a husband be joined to
any tort action against a married woman were rejected.28 Similarly, the
State's high court recognized a married woman's right to sue third parties
for personal torts.2 9

By 1923, New York courts not only had rejected the traditional
understanding of marriage as coverture but also had characterized as
"archaic" the common law understanding that a husband "had a property
interest in [his wife's] body and a right to the personal enjoyment of his
wife. '30 In setting aside the different rules for husbands and wives regarding
claims of criminal conversation, the Court pointedly observed that the only
objection to the wife's claim had been "the plea that the ancient law did not
give it to her.' 1 "Reverence for antiquity," however, "demands no such
denial," the Court wrote.32 Instead, "[c]ourts exist for the purpose of
ameliorating the harshness of ancient laws inconsistent with modem
progress when it can be done without interfering with vested rights. 33

25 
NORMA BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN

NINETEENTH-CENTURY NEW YORK 28 (1982).

26 See, e.g., Bertles v. Nunan, 92 N.Y. 152, 160 (1883) (holding that "[t]he ability
of the wife to make contracts is limited").

27 Winter v. Winter, 191 N.Y. 462,475 (1908).

28 Compare Bertles, 92 N.Y. at 161 (stating that "the common-law rule as to the
liability of the husband for the torts and crimes of his wife are still substantially in force"),
with Quilty v. Battie, 135 N.Y. 201, 209 (1892) (finding that a husband was "not a proper
party defendant" in a case against the wife for "a trespass committed by her in the care and
management of her separate estate").

29 See Bennett v. Bennett, 116 N.Y. 584, 590 (1889) (holding that a married
woman had the same legal capacity as her husband to bring suit at common law for
alienation of affections).

30 Oppenheim v. Kridel, 236 N.Y. 156, 161 (1923).

31 Id. at 165.

32 Id.

33 id.

260 [Vol. 15:1



2006] A Historical Guide to the Future of Marriage 261

2. Since the Mid-Twentieth Century, New York Has Continued To
Change Elements of Marriage Once Considered Unalterable.

Having endured the transformations just described, marriage neither

collapsed as a legal or social entity nor became so immutably fixed as to

ward off further evolution. To the contrary, changes to what once had been

thought of as "core" elements of marriage continued. These changes

reshaped, inter alia, rules regarding interspousal immunity, spousal

testimonial privilege, the doctrine of necessaries, loss of consortium, and

sexual relations between spouses. Both individually and together, these

shifts demonstrate, again, that the law governing marriage has been and

continues to be in a constant state of change, reflecting the imperatives of a
changing social order.34

a. Interspousal Immunity and Spousal Testimonial Privilege

The doctrine of interspousal immunity was long understood as

fundamental to marriage. Traditionally, "neither spouse could sue the other

civilly for personal injuries wrongfully inflicted upon the other." s

Conferring such a right, it was feared, would be "destructive of that

34 See Hernandez v. Robles, 7 Misc. 3d 459, 488 (N.Y. Cty. 2005) (footnote and

internal citations omitted):

Marriage is no more limited by the historical exclusion of same-sex marriage than it was

limited by the exclusion of interracial marriage, the legal doctrine of coverture, the pre-1967

restrictions on remarriage following divorce in New York, longstanding restrictions on

divorce, or the "marital exemption" to the crime of rape.

Recent international developments show, too, that marriage continues to evolve

without harm to the institution. Belgium, the Netherlands, Spain, and Canada now recognize

marriages of same-sex couples on the same basis as marriages of different-sex couples. See

ABA SECTION OF FAMILY LAW, A White Paper. An Analysis of the Law Regarding Same-Sex

Marriage, Civil Unions, and Domestic Partnerships, 38 FAM. L. Q. 339, 407-08 (2004)

[hereinafter WHITE PAPER]; Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, para. 33,

42 (Can.) (finding marriage rights for same-sex couples to be consistent with Canadian

Charter and noting decisions from provincial courts mandating recognition of same-sex

couples' marriages); Civil Marriage and the Legal Recognition of Same-Sex Unions,

http://canada.justice.gc.ca/en/fs/ssm/ (last updated July 21, 2005); Spain Makes Gay

Marriages Legal, CNN, June 30, 2005,

http://www.cnn.com/2005[WORLD/europe/O6/30/spain.gay.vote.ap/ index.html.

Also, in 2004, the Supreme Court of Appeal of South Africa found that exclusion

of same-sex couples from common law marriage rights violated South Africa's Constitution.

Fourie v. Minister of Home Affairs, 2005 (3) BCLR 241 (SCA) (S. Afr.). Nearly ten years

earlier, Hungary's Constitutional Court recognized common-law marriages of same-sex

couples. See WHiTE PAPER, supra, at 410 (discussing 1995 ruling by Hungary's

Constitutional Court recognizing common-law marriages of same-sex couples).

35 People v. Morton, 284 A.D. 413,416 (2d Dep't), aff'd, 308 N.Y. 96 (1954).



Columbia Journal of Gender and Law

conjugal union and tranquility." 36 This immunity had widespread
repercussions. For example, married women could not sue their husbands
for assault and battery, trespass upon their person, 38 malicious
prosecution,39 or slander.4°

Eventually, however, this element of marriage that was once
thought unalterable was written out of existence. 4' In 1954, the Court of
Appeals went further, extending the abrogation of interspousal immunity to
include criminal cases so that a husband could be convicted of larceny for
theft of his wife's property.42 In the Second Department's ruling in the same
case, the Court observed that "[i]t would not be consonant with our present
social concepts of husband and wife to say that one is not a person separate
from the other. 43

New York courts similarly cast aside the longstanding rule that
spouses could not be compelled to testify against each other in court.44

b. Loss of Consortium

As recently as 1958, the Court of Appeals sustained the deeply
rooted traditional rule that husbands, but not wives, could recover for loss

36 Longendyke v. Longendyke, 44 Barb. 366, 366 (N.Y. Cty. 1863).

37 See id.; Schultz v. Schultz, 89 N.Y. 644, rev'g63 How. Pr. 181 (N.Y. Cty. 1882);
Abbe v. Abbe, 22 A.D. 483 (2d Dep't 1897).

38 Caplan v. Caplan, 268 N.Y. 445 (1935).

39 Allen v. Allen, 246 N.Y. 571 (1927).

40 Freethy v. Freethy, 42 Barb. 641 (N.Y. Cty. 1865).

41 See Laws of 1937, ch. 669 § I (providing that spouses could sue each other for
wrongful personal injuries); see also State Farm Mut. Auto. Ins. Co. v. Westlake, 35 N.Y.2d
587, 591 (1974) ("No longer is it considered contrary to public policy for one spouse to sue
another for damages for personal injuries.").

42 See People v. Morton, 308 N.Y. 96, 99 (1954) ("We are not fearful, as was the
court in 1863 ... that this will 'involve the husband and wife in perpetual controversy and
litigation' or 'sow the seeds of perpetual discord and broil[.]"').

43 Morton, 284 A.D. at 418.

4See, e.g., People v. Watkins, 63 A.D.2d 1033, 1034 (2d Dep't 1978) (holding
that the traditional privilege protecting spouses from testifying against each other "does not
extend to communications between spouses" in connection with a criminal conspiracy)
(internal quotations omitted); Peoplev. Smythe, 210 A.D.2d 887, 888 (4th Dep't 1994)
(limiting spousal privilege).

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2006] A Historical Guide to the Future of Marriage

of consortium. 45 "The reason for this rule is that the wife at law is supposed

to render services in and about the home and in caring for the children. ' ' 6

But ten years later, in Millington v. Southeastern Elevator Co. ,47 the

Court of Appeals rejected this traditional element of marriage, holding that
"we... remove the discrimination in the existing law by acknowledging the

equal right of the wife to damages as a result of her loss of consortium. 48

Explaining its elimination of this once "venerable" element of marriage, the

Court wrote that "' [t]he gist of the matter is that in today's society the

wife's position is analogous to that of a partner, neither kitchen slattern nor
upstairs maid.'9

c. Doctrine of Necessaries

An additional, striking example of the fundamental changes to sex-

based distinctions in marriage arises in connection with the doctrine of

necessaries, once viewed as "one of the most primary and absolute

principles in New York law." 50 Under the traditional rule, husbands, but not
wives, were obligated to support the family.51

In 1989, the Third Department recognized the outmoded nature of

this common law rule, holding that spouses had reciprocal, rather than sex-

based, duties to pay for each other's necessaries.52 In 1992, the Second
Department agreed, holding that the gendered doctrine of necessaries
violated the State's equal protection guarantee.53

45 Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 527 (1958).

46 Oppenheim v. Kridel, 236 N.Y. 156, 168 (1923).

47 22 N.Y.2d 498 (1968).

481d. at 504.

49Id. at 503, 508 (citation omitted); see also id. at 508-09 (stating that the old rule
"'no longer expresses a standard of care which accords with the mores of our society"')
(citation omitted).

50 Med. Bus. Assoc., Inc. v. Steiner, 183 A.D.2d 86, 91 (2d Dep't 1992) (citations

omitted).

51 See Garlock v. Garlock, 279 N.Y. 337, 340 (1939) ("[T]he duty rests upon the

husband to support his wife and his family, not merely to keep them from the poorhouse, but

to support them in accordance with his station and position in life."); cf. Med. Bus. Assoc.,

Inc., 183 A.D.2d at 91 (describing "[t]he obligation of a husband to support his wife" as
"comport[ing] with the traditional family structure of the husband as sole breadwinner and

the wife as full-time homemaker").

52 Our Lady of Lourdes Mem. Hosp., Inc. v. Frey, 152 A.D.2d 73 (3d Dep't 1989).

53 See Med. Bus. Assoc., Inc., 183 A.D.2d at 91 (describing the traditional rule as
"an anachronism that no longer fits contemporary society") (citations omitted).

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Columbia Journal of Gender and Law

d. Sexual Relations

Finally, the treatment of sexual relations between spouses as an
element of marriage has also undergone significant change. For over 150
years, the law was clear: a man could have sexual relations with his wife
any time he so chose.5 4 Indeed, a wife's presumptive consent to sexual
relations with her husband had long been considered fundamental to the
marriage right.55 Yet in 1984, the Court of Appeals rejected this deep-rooted
understanding of marriage. The traditional rationales for the marital rape
exemption, it held, no longer withstood rational basis review.56

As the history of marriage demonstrates, fears that the institution of
marriage would be endangered accompanied each change to elements once
thought of as essential to marriage. The Massachusetts Supreme Judicial
Court observed, for example, that "[a]larms about the imminent erosion of
the 'natural' order of marriage were sounded over the demise of
antimiscegenation laws, the expansion of the rights of married women, and
the introduction of 'no-fault divorce."' 57 Yet, that court added, "[m]arriage
has survived all of these transformations, and we have no doubt that
marriage will continue to be a vibrant and revered institution. 5 8 The court
below recognized this as well, noting the "steady evolution in the institution
of marriage throughout history., 59

The Court of Appeals made this same point regarding unfounded
predictions of harm flowing from legal changes to familial relationships
when it recognized tort liability between siblings in 1939. 60 The Court
observed that "[t]he modem family.., is far different in structure, status
and internal social and legal relationship than the family of ancient times.'
It added: "Not withstanding such changes from tradition [to the rules
governing family relations], predictions of dire results to the continued
peace and amity of the family relationship have not been sustained.62

54People v. Liberta, 64 N.Y.2d 152, 162 (1984) (citing an 1852 New York treatise
on this point).

55 Id.

56 Id. at 163; see also People v. De Stefano, 121 Misc. 2d 113 (Suffolk Cty. 1983).

57 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 967 (Mass. 2003).

58 Id.

59Hemandez v. Robles, 7 Misc. 3d 459, 489 (N.Y. Cty. 2005) (emphasis supplied).

60 Rozell v. Rozell, 281 N.Y. 106 (1939).

61 Id. at 109.

62 Id. at I11.

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2006] A Historical Guide to the Future of Marriage

The historical record demonstrates, in short, that marriage has
remained both viable and desirable as the State's most comprehensive
formal mechanism for recognizing adult partnerships, even as its familiar,
longstanding rules have been rejected over time.

B. Spousal Interdependence Comprises the Essential Element of
Marriage Today in New York; Alleged State Interests in the Sex of
the Marriage Partners and Procreation Do Not Justify the Exclusion
of Same-Sex Couples from Marriage.

1. New York's Jurisprudence and Statutes Identify Interdependence as
the Essence of Civil Marriage.

On numerous occasions, New York's courts have identified the

essence of marriage today not in the separate, gendered roles of husbands
and wives nor in the function of procreation, but instead in the

interdependence of the marital partners. This interdependence is, in large
63

part, economic.
Beyond economics, New York's courts have also recognized

emotional interdependency and sexual intimacy as important to marriage. In

addressing the concept of loss of consortium, for example, the Court of
Appeals explained that the loss comprised not only "support or services"
but also "such elements as love, companionship, affection, society, sexual
relations, solace and more. ' ' 4

The statutes governing marriage implicitly have recognized this
concern with mutual care through their focus on insuring the consent of the

parties to the marriage and on promoting the partners' commitment to each
other.65

63 See Holterman v. Holterman, 781 3 N.Y.3d 1, 7 (2004) (stating that the

Domestic Relations Law "recognize[s] marriage as an economic partnership"); DeLuca v.

DeLuca, 97 N.Y.2d 139, 144 (2001) (describing the "contemporary view of marriage as an

economic partnership") (citations omitted); Koehler v. Koehler, 182 Misc. 2d 436, 442

(Suffolk Cty. 1999) ("The underlying rationale of the reforms [to the Domestic Relations
Law] of 1980 was the assumption that marriage was purely an economic partnership and
should be treated as such.").

64 Millington v. Se. Elevator Co., 22 N.Y.2d 498, 502 (1968); see also Hernandez,

7 Misc. 3d at 497 ("Marriage, as it is understood today, is both a partnership of two loving
equals who choose to commit themselves to each other and a State institution designed to

promote stability for the couple and their children.").

65 See, e.g., N.Y. Dom. Rel. Law § 7(1)-(5) (McKinney 2004) (providing for

nullification when a party to the marriage was incapable of consent or consent arose from

force, duress, or fraud); N.Y. Dom. Rel. Law § 236(B)(6)(a)(5), (8) (McKinney 2004)

(setting out conditions for maintenance awards based on one party having foregone
opportunities or provided homemaking or other services for the other).

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Columbia Journal of Gender and Law

Likewise, the jurisprudence and statutory framework regarding
divorce reinforce that interpersonal commitment is the linchpin of civil
marriage. While divorce was once viewed as risking "the stability of our
government," 66 and "preced[ing] the downfall of a nation,' 67 contemporary
law holds that society is better off when couples lacking interpersonal
commitment do not remain married. As the Court of Appeals observed,
New York divorce law today rests on a

recognition that it is socially and morally undesirable to compel
couples to a dead marriage to retain an illusory and deceptive
status and that the best interests not only of the parties but of
society itself will be furthered by enabling them "to extricate
themselves from a perpetual state of marital limbo. "6 8

2. The Rule Limiting Marriage to Men and Women Reflected an Earlier
Era of Gendered Roles for Husbands and Wives; Current Law Does
Not Treat the Sex Difference Between Marital Partners as Important
or Relevant

The evolution of standards regarding care of children upon
dissolution of a marriage reinforces that the sex of the marital partners has
become legally irrelevant. The changes in this area-from a preference for
fathers to a preference for mothers to a sex-neutral position-reveal the rule
limiting marriage to male-female couples to be an outgrowth of an earlier
view, since rejected, that marriage involved naturally and legally distinct
roles for men and women.

Early on in custody disputes, New York courts embraced the
common law rule that the father, not the mother, was entitled to custody of
their children. "That the father has, by the common law, the paramount
right to the custody and control of his minor children, and to superintend
their education and nurture, is too well settled to admit of doubt."69 Even
after statutory changes in 1860 explicitly granted married women joint
custody of their children, 7

0 courts continued to find that "the recognized

66 In re Estate of Lindgren, 181 Misc. 166, 169 (Kings Cty. 1943).
67 Id. at 170.

68 Gleason v. Gleason, 26 N.Y.2d 28, 35 (1970) (citation omitted) (emphasis
supplied); see also Halsey v. Halsey, 296 A.D.2d 28, 30 (2d Dep't 2002).

69 People ex rel. Olmstead v. Olmstead, 27 Barb. 9, 9 (N.Y. Cty. 1857); see also
Linda R. v. Richard E-, 162 A.D.2d 48, 54 n.3 (2d Dep't 1990) ("Gender had long been the
primary factor in awarding custody, beginning with ancient and common-law doctrine of
absolute patriarchal control . ").

70See 1860 N.Y. Laws ch. 90 § 9.

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2006] A Historical Guide to the Future of Marriage

paramount right of the father must prevail over the otherwise equal claims
of the mother.'

By the late 1800s, the absolute, seemingly "natural" rule favoring
fathers gave way to a maternal presumption in child custody disputes,
particularly when young children were involved.72 This maternal preference
remained in force for much of the twentieth century.73

More recently, though, the State's courts revisited this once-
"normal" preference for maternal care and concluded that sex-based
parenting rules are outdated and not essential to marriage (or marital
dissolution) after all. As the Second Department observed, "[w]hile the role
of gender in making custody determinations has had a lengthy social and
legal history, it finds no place in our current law. 74

New York's custody and child support statutes reflect the same
gender-neutral position regarding the treatment of children upon marital
dissolution. 75 As a result, courts now regularly award custody to fathers,
even when both parents are found to be fit.76

These shifts in custody rules and in the doctrine and law that
constitute marriage underscore that conventional understandings, while not
to be denigrated, cannot alone justify the continued enforcement of an
otherwise discriminatory law or doctrine. As Justice Holmes remarked,
dissenting in Lochner v. New York,77 "the accident of our finding certain
opinions natural and familiar... ought not to conclude our judgment upon
the question whether statutes embodying them conflict with the

71 People ex rel. Brooks v. Brooks, 35 Barb. 85, 92 (N.Y. Cty. 1861).

72 See Osterhoudt v. Osterhoudt, 28 Misc. 285, 285 (N.Y. Cty. 1899) (explaining

that "the tender guidance of a mother is of incalculable advantage, and should only be lost to
[young children] by her death or misconduct").

73 See, e.g., People ex rel. Himber v. Himber, 136 N.Y.S.2d 456, 458 (N.Y. Cty.
1954) ("[W]hen it becomes necessary to make a choice between mother and father it is to the
child's best interest and welfare to be brought up and reared by his mother .... ).

74 Linda R., 162 A.D.2d at 53-54; see also Fountain v. Fountain, 83 A.D.2d 694,
694 (3d Dep't 1981) ("A presumption of 'matemal superiority' is now considered to be

outdated."); cf Hernandez v. Robles, 7 Misc. 3d 459, 492-93 (N.Y. Cty. 2005) (citing cases
showing recognition by New York courts that "gay or lesbian sexual orientation does not
bear on fitness to parent children").

75 See N.Y. Dom. Rel. Law § 70 (McKinney 2004) ("[i]n all cases there shall be no
prima facie right to the custody of the child in either parent"); N.Y. Dom. Rel. Law § 240(1)
(McKinney 2004).

76 See, e.g., Bryant v. Nazario, 306 A.D.2d 529 (2d Dep't 2003).

77 198 U.S. 45 (1905).

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Columbia Journal of Gender and Law

Constitution of the United States. 78 That is certainly the case here, where
the different-sex eligibility requirement reflects the view of marriage as a
gendered status that has long been rejected by both the courts and
legislature. The present focus of both the courts and the legislature is now
trained instead on the spouses' commitment to each other, a factor that has
no legitimate connection to the sex of the marital partners.

3. The Capacity to Procreate Has Never Been Treated as Essential to
Marriage in New York

The history of marriage in New York as well as contemporary state
law demonstrates that procreation has never been treated as an essential
element of marriage. While references to the importance of procreation
appear occasionally in dicta, it is the spouses' sexual relationship, and not
their capacity or intent to procreate, that courts (and statutes) treat as
fundamental to marriage. Indeed, the City's sole citation to support the
proposition that marriage is '" for the purpose of begetting offspring"' 79 did
not concern procreation at all.80 Instead, at issue in Mirizio v. Mirizio was
whether a wife was entitled to support when she refused to be sexually
intimate with her husband after the husband failed to keep his promise to
undergo a Catholic wedding ceremony.8' The court rejected her claim-not
because procreation was essential to marriage, as the City suggests based on
its acontextual excerpt from the case, but because the refusal of sexual
intimacy constituted a violation of "the fundamental obligation of the
marriage contract. 82

In 1960, the Court of Appeals made the same point: that sexual
intimacy, not procreation, is essential to marriage. In Diemer v. Diemer,
the wife "unequivocally declared that she would not have any sexual

78 Id. at 76 (Holmes, J., dissenting). The U.S. Supreme Court has taken this point
to heart, affirming in numerous cases that while history is a useful starting point for analysis,
the past alone cannot justify retention of a discriminatory, exclusionary rule. See, e.g., Pac.
Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18 (1991) ("'[N]either the antiquity of a practice nor
the fact of steadfast legislative and judicial adherence to it through the centuries insulates it
from constitutional attack ....') (alteration in original) (citation omitted); Walz v. Tax
Comm'n, 397 U.S. 664, 678 (1970) ("It is obviously correct that no one acquires a vested or
protected right in violation of the Constitution by long use, even when that span of time
covers our entire national existence and indeed predates it.").

79 Mirizio v. Mirizio, 242 N.Y. 74, 81 (1926) (cited in Appellant's Br. at 45).
8o Notably, the City's only argument on appeal concerns procreation; it appears to

have abandoned its defense based on history, tradition, and uniformity made below.

s' Mirizio, 242 N.Y. at 77, 84.
821d. at 81.
83 Diemer v. Diemer, 8 N.Y.2d 206 (1960).

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2006] A Historical Guide to the Future of Marriage

relations with her husband until they were remarried before a Roman
Catholic priest."84 Characterizing the refusal as "strik[ing] at the civil
institution of marriage," 85 the Court granted the husband a decree of
separation. In doing so, the Court reinforced that Mirizio concerned sexual
intimacy rather than procreation: "That a refusal to have marital sexual
relations undermines the essential structure of marriage is a proposition
basic to this court's decision in the Mirizio case and as obvious as it is
authoritative.

86

The State's annulment statutes and jurisprudence confirm that
procreation has been neither necessary nor sufficient to marriage. Over a
century ago, the Second Department distinguished sexual relations from
procreation, finding that the inability to "become a mother" did not make it
"impossible for the defendant. . . to enter into the marriage state."87 "[lt
cannot be held, as a matter of law, that the possession of the organs
necessary to conception are essential to entrance to the marriage state, so
long as there is no impediment to the indulgence of the passions incident to
this state.,88 Simply put, sexual relations, not procreation, was a foundation
of marriage.

In Zagarow v. Zagarow,89 the court likewise held that a wife's
refusal to procreate was not a ground for divorce. "Unlike marital sexual
relations, which are, per se, part of the essential structure of marriage, the
parties are free to decide when and if and how often they will have
children," the court wrote.90

Even the Domestic Relations Law provision that "physical cause"
can render a marriage voidable9 relates not to procreation but rather to the
capacity for sexual intimacy. The Court of Appeals made this clear in 1930,
when it distinguished the ability to bear children from the ability to
"perform[] the functions of a wife or a husband., 92

g4Id. at 209.

85Id. at 210.

86 Id.

87 Wendel v. Wendel, 30 A.D. 447,448-49 (2d Dep't 1898) (citations omitted).

I8ld. at 449.

89 105 Misc. 2d 1054 (Suffolk Cty. 1980).

90Id. at 1057; see also id. at 1059 ("It would be futile to rule that a woman must
submit to a pregnancy and then hold that she may legally abort it."); People v. De Stefano,
121 Misc. 2d 113, 123 (Suffolk Cty. 1983).

91 N.Y. Dom. Rel. Law § 7(3) (McKinney 1909).

92 Lapides v. Lapides, 254 N.Y. 73, 80 (1930) (observing that "[tihe inability to

bear children is not such a physical incapacity as justifies an annulment"); see also
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) ("While it is certainly

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270 Columbia Journal of Gender and Law [Vol. 15:1

As the history and current law regarding the elements of marriage
demonstrate, neither procreation nor gendered roles for the marital partners
is essential to marriage today. Instead, taken together, they reveal the
different-sex eligibility rule to be inconsistent with the standards of
marriage as they have evolved.

C. New York Historically Has Not Maintained Uniformity With Other
States in Its Definition of Marriage.

Throughout history, New York has always followed its own course
in defining and transforming the elements of marriage in the ways discussed
above. Indeed, the State has not sought uniformity with other states'
marriage laws either through its marriage statutes or through the liberal
comity principles by which it has traditionally and voluntarily recognized
other states' marriages. The State's history thus contradicts the City's claim,
as made to the trial court,93 that the status of marriage in other states should
govern New York law.

New York's comity law, which reflects the State's autonomous
decision to recognize virtually all marriages that are valid where they are
celebrated, has led to recognition of marriages that the State's own law does
not permit. 94 For example, New York's courts have recognized common
law marriages, marriages between an uncle and a niece, and remarriage by
an adulterer, among others.95

true that many, perhaps most, married couples have children together (assisted or unassisted),
it is the exclusive and permanent commitment of the marriage partners to one another, not
the begetting of children, that is the sine qua non of civil marriage."); William M.
Hohengarten, Note, Same-Sex Marriage and the Right of Privacy, 103 YALE L.J. 1495, 1512
(1994) ("[L]aws governing domestic relations do not treat the ability to procreate as a
precondition of marriage. The marital relationship is valued in its own right as a legal
commitment between two intimately related adults, not because it is sometimes connected
with procreation."); cf Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting)
(stating that "encouragement of procreation" could not justify excluding same-sex couples
from marriage).

93 See Hernandez v. Robles, 7 Misc. 3d 459, 483-86 (N.Y. Cty. 2005) (analyzing
and rejecting the City's argument regarding "consistency with Federal Law and Other
States").

94 See In re May's Estate, 305 N.Y. 486, 490 (1953) (stating that "the legality of a
marriage between persons.., is to be determined by the law of the place where it is
celebrated").

95 See, e.g., Mott v. Duncan Petroleum Transp., 51 N.Y.2d 289, 292 (1980) ("[fI]t
has long been settled law that although New York does not itself recognize common-law
marriages... a common-law marriage contracted in a sister State will be recognized as valid
here if it is valid where contracted."); In re May's Estate, 305 N.Y. at 492-93 (recognizing
the out-of-state marriage of an uncle and a niece, despite the State's prohibition of such
marriages); Van Voorhis v. Brintnall, 86 N.Y. 18 (1881) (recognizing remarriage of man
who traveled out of state to evade New York's prohibition against remarriage).



2006] A Historical Guide to the Future of Marriage 271

The State's generous comity doctrine also has led New York to
recognize same-sex couples' marriages and partnerships celebrated out of
state.96 New York City itself has acknowledged that it will accord full legal
respect to marriages of same-sex couples entered out of state.97

The only exceptions that New York courts have suggested could
prevent the recognition of a valid out-of-state marriage are "cases, first of
incest or polygamy coming within the prohibitions of natural law... ;
second, of prohibition by positive law."98 The Court of Appeals has stressed,
further, that foreign-based rights should be enforced unless the transaction
"is inherently 'vicious, wicked or immoral, and shocking to the prevailing
moral sense." 99

Just as New York's liberal treatment of out-of-state marriages
illustrates the State's willingness to maintain marriage law that is not
uniform with other states, so too New York's relatively conservative
divorce law shows the State's lack of commitment to uniformity. In the
nineteenth century, the State's divorce laws were "notorious for their
rigidity and inflexibility."' 1 As "the last state to move toward liberalizing
its divorce laws,"10' New York banned remarriage by the party liable for the
divorce during much of the nineteenth century 10 2 and until 1966 had
adultery as its only ground for divorce. 03 Even today, New York remains
differently situated from other states with respect to divorce. It is now the

96 See, e.g., Langan v. St. Vincent's Hosp. of N.Y., 196 Misc. 2d 440 (Nassau Cty.
2003) (treating gay couple with Vermont civil union as spouses for purposes of wrongful
death statute); 2004 N.Y. Op. Atty. Gen. No. 1 (2004) (stating that state comity law would
require recognition of same-sex couples' out-of-state marriages).

97 Letter from Anthony Crowell, Special Counsel to the Mayor, City of New York,
to Alan Van Capelle, Executive Director, Empire State Pride Agenda (Apr. 6, 2005),
http://www.prideagenda.org/pdfs/NYC Letter Recognizing Same-Sex Marriage.pdf.

98 Van Voorhis, 86 N.Y. at 26. With respect to consanguinity, New York remains
in the minority of states that continue to recognize marriages between first cousins. See
JuDiTH C. AREEN, FAMILY LAW: CASES AND MATERIALS 13 (4th ed. 1999).

99 Intercontinental Hotels Corp. (Puerto Rico) v. Golden, 15 N.Y.2d 9, 13 (1964).

1oo Hendrik Hartog, Marital Exits and Marital Expectations in Nineteenth Century
America, 80 GEO. L.J. 95, 116 (1991).

o10 Marcus, supra note 13, at 417 n.159.

102 Laws of 1879, ch. 321 § 49.

103 N.Y. Dom. Rel. Law § 170 (McKinney 1966) (amending state law to provide

six grounds for divorce, including, inter alia, abandonment and separation pursuant to court
order or written agreement).



Columbia Journal of Gender and Law

only state in the country to "require[] the finding of fault or living apart
pursuant to a legal document as a basis for divorce.'' 4

Thus, neither historically nor today can New York's marriage law
be characterized fairly as conforming with that of other states.

IV. CONCLUSION

As illustrated above, the history of marriage has been one of
evolution, not of static immutability, with marriage surviving innumerable
changes to its core rules over the last two centuries. These changes to the
institution of marriage over time have rendered the current rule excluding
same-sex couples from marriage inconsistent with New York law, which
has both repudiated gendered marriage rules as unconstitutional and,
historically as well as contemporarily, not held procreation to be an
essential element of marriage. The City's gender- and procreation-related
defenses thus lack any legitimate relationship to the concerns of equality
and interdependence that are marriage's now-settled underpinnings.
Likewise, the historical and ongoing absence of uniformity between
marriage rules of New York and other states demonstrates that claims about
uniformity cannot support the rule challenged here.

Dated: July 28, 2005 Respectfully submitted,

Suzanne B. Goldberg
435 West 116th Street
New York, NY 10027

Robert C. Mason
Dorothy N. Giobbe
ARNOLD & PORTER LLP
399 Park Avenue
New York, NY 10022

Helene B. Madonick
Jennifer S. Brannan
Leslie M. Hill
Lisa Adelson
ARNOLD & PORTER LLP
555 Twelfth Street NW
Washington, DC 20004

Attorneys for Amici Curiae10 5

'04 S.C. v. A.C., 4 Misc. 3d 1014(A), Slip Copy (Queens Cty. 2004) (unpublished
opinion).

105 Amici are grateful for the research assistance provided by Todd Anten,
Columbia Law School, Class of 2006.

[Vol. 15:1272



SEXUAL EXPRESSION