Home Random Page


CATEGORIES:

BiologyChemistryConstructionCultureEcologyEconomyElectronicsFinanceGeographyHistoryInformaticsLawMathematicsMechanicsMedicineOtherPedagogyPhilosophyPhysicsPolicyPsychologySociologySportTourism






Regulating Fitness for Marriage

The eugenics movement had an even more dramatic impact on laws regulating fitness for marriage. At the beginning of the nineteenth century the traditional English limitations on fitness for marriage had molded the republican family. The disabilities named included physiological, mental, moral, and contractual liabilities that, depending on their degree and kind, prevented one of the parties from entering into legal matrimony and provided the grounds, if a marriage did exist, to annul it.

Postrevolutionary marriage law assumed that there was an age below which a marriage could not be consummated through sexual union leading to procreation. The English common law conferred nuptial rights at age twelve for women and fourteen for men; paternal control, however, continued until age twenty-one. These common law minimums were seldom approached; most brides and grooms throughout the nineteenth century married in their early twenties, although the age dropped slightly toward the end of the century. Effective policing was difficult in any case, especially as

-155-

patriarchy eased and the participants themselves claimed under the companionate ideal that they were best able to judge the appropriate marriage age.

Sexual incapacity, like age, was more a basis for terminating a marriage than for blocking it, although the colonial precedents for annulment were murky. Only when legislators began to regulate these matters did significant numbers of cases appear. Most impotence statutes treated the failure to disclose the condition before marriage as a fraud, because a party had offered themselves for marriage knowing that they could not consummate it.

There were problems of proof and emotion, as the case of Devanbaugh v. Devanbaugh ( 1836) demonstrated. Chancellor Reuben Walworth of New York was asked to consider whether a marriage should be annulled because a husband claimed that his wife was incapable of sexual intercourse. Walworth ordered a physical examination of the woman, and the medical examiner testified that the wife had an especially strong hymen that could only be breached surgically. Walworth decided that the woman was not incurably impotent and that surgery would remedy the problem. The wife resisted the procedure, and she refused to live further with her husband. Walworth would go no further. "[It] is," he wrote, "a matter to be settled with her own conscience and her lawful husband, as this court has no jurisdiction in any case to enforce the performance of her marital vows." 15

Marriage partners had a legal right to a sexually complete union. Legislators provided as much; judges enforced these requirements. Most of the cases, as the Devanbaugh example indicates, involved suits brought by men against women, suggesting perhaps that more women than men in the Victorian era were willing to accept an unconsummated marriage.

Judges before the Civil War also liberalized taboos against marriage of kin. As a. general rule, U.S. common law, in a departure from English practice, banned only truly incestuous marriages: between parent and child, brother and sister. The approach in the United States through midcentury was to leave the matter of regulation to individual conscience and the church, although there were regional variations. In New England and the older South a "biblical system" evolved that permitted first-cousin unions but banned marriages among other kin. At the same time, a "western system" developed in the new states of the American frontier that proscribed first-cousin marriages but authorized unions among non-blood-related kin. These differences stemmed from a policy of encouraging the full distribution of family wealth in lightly populated areas.



Mental competence was another standard of fitness for marriage. A person with an impaired mind could not meet the contractual standard of knowingly consenting to enter into a nuptial agreement. In the absence of a scientific definition, statutes and common law rulings before the Civil War groped to distinguish between mental incapacity and insanity. Courts tended to act only when the evidence was beyond dispute. For example, the New Hampshire Supreme Court in 1850 decided in True v. Raney the fate of a twenty-two-year-old woman. She had been abducted and married, and her parents sued to have the union dissolved. They testified that their daughter could not wash or dress herself, spell or read, use money, tell time, knit or sew. Chief Justice John J. Gilchrist dissolved the marriage, concluding that "there is every reason to believe that no person so lamentably imbecile as this young woman appears to be, could have the remotest idea of the meaning of a contract for the performance of any of the ordinary duties of life, and still less of a contract of marriage." 16

-156-

Lawmakers after the Civil War engaged in more vigorous regulation of fitness for marriage than their predecessors. For example, the Supreme Court in Reynolds v. United States ( 1878) declared Mormon polygamy "an odious practice" that would "make the professed doctrines of religious beliefs superior to the law of the land, and in effect permit every citizen to become a law unto himself." 17 Congress applied additional statutory pressure thereafter, ultimately forcing the Mormon leadership to abandon the practice in order to win statehood for Utah in 1890.

Race was yet another criteria that postwar lawmakers invoked to justify standards of nuptial fitness. Law in the United States was unique in its prohibitions of interracial marriage; the English common law had no such requirement. Maryland was the first colony to place a statutory ban on marriages between individuals of different races, and in the antebellum period many states and territories added to the list. Even where there was no explicit ban, private prejudice was effective. The law formally ratified rather than imposed one of society's most powerful social taboos.

Emancipation stirred new fears, especially in the South, where Black Codes contained clauses prohibiting miscegenation (the intermarriage of persons of different races). Similar bans directed at the Chinese appeared in western states, but the brunt of the antimiscegenation statutes fell on blacks. The North Carolina Supreme Court in 1869, for example, overturned the marriage of a black man and a white woman, finding that "[t]he emancipation of the slaves had made no alteration in our policy, nor in the sentiments of our people." 18 The Texas Court of Appeals in 1877 rejected efforts by Charles Frasher to reverse his conviction for marrying a black woman based on the Fourteenth Amendment and the Civil Rights Act of 1866. "[M]arriage is more than a contract," the Court proclaimed, "it is a civil status, left solely by the Federal Constitution and the law to the discretion of the states under their general power to regulate their domestic affairs." 19

By 1916, twenty-eight states and territories prohibited interracial marriage. More statutes banned miscegenation than any other form of racially related conduct, and James Schouler, the nineteenth century's leading authority on the law of domestic relations, observed that while "the manifest tendency of the day" was toward removing all "legal impediments of rank and condition," the "race barrier" continued to have "a strong foundation in human nature, wherever marriage companionship is concerned." 20

The eugenics movement also contributed to the new standards of marriage fitness, and its biological and hereditary foundations lent scientific credence to racism. Even legal writers such as Christopher Tiedeman and Thomas M. Cooley, who criticized state efforts to regulate the marketplace, accepted that biology and medicine made interference in personal and family relations necessary. The new legislation aimed, in the eyes of its proponents, to prevent the degeneration of society by imposing scientific controls on marriage. Connecticut in 1895, for example, banned marriage of feeble- minded, imbecile, and epileptic men and women under forty-five years of age, and imposed a minimum three-year prison term on violators. By 1900 every state prohibited marriage between blood relations.

Victorian beliefs made medical controls essential curbs on lustful males who, through their contacts with prostitutes, were believed to spread venereal diseases to faithful brides. By the 1930s, twenty-six states and territories had enacted statutes similar to an 1899 Michigan law, the first in the nation, which authorized criminal penalties for people who had gonorrhea or syphilis and married. Wisconsin in 1913

-157-

became the first state to require medical examination of the groom for veneral disease before a license could be issued.

The eugenics movement achieved its greatest success in the passage of laws that permitted marriage of social dependents and deviants only after sterilization. Indiana in 1907 was the first state to provide that idiots, habitual criminals, imbeciles, and rapists could marry only if they consented to sterilization. By 1931 twenty-seven states had adopted similar measures. In some instances, notably Indiana and New York, state appellate courts held that these measures violated due process and equal protection of the laws. The U.S. Supreme Court, however, granted the states significant discretion. In Buck v. Bell ( 1927), for example, Justice Oliver Wendell Holmes, Jr., approved the sterilization of eighteen-year-old Carrie Buck, whose mother had also been feeble- minded, under a Virginia statute. Holmes explained that it was "better for all the world, if instead of waiting to execute degenerate offspring for crimes, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind." 21

 


Date: 2015-01-29; view: 813


<== previous page | next page ==>
Marriage, the Contract Ideal, and the Public Interest | Operating the Family: Married Women's Property, Birth Control, and Children
doclecture.net - lectures - 2014-2024 year. Copyright infringement or personal data (0.006 sec.)