Marriage Regulation As State Building

A central component of state building is the process by which state actors develop symbolic and infrastructural power, inserting themselves into the construction and conduct of everyday life. An important but understudied example is the public regulation of marriage. Marriage law naturalizes the social significance of the most intimate interpersonal relations, and fixes important economic rights and obligations including the most elementary organization of property. Taking inspiration from Engels, Durkheim, Weber and Simmel—all of whom saw the public regulation of marriage as a central axis of political modernization—this paper asks how states acquire and maintain legitimate authority over the definition and enforcement of marriage.

Specifically, the paper examines the rise and fall of so-called “common-law marriage” in the United States in the nineteenth and early twentieth centuries. While most modern states require marriage to be officially registered and solemnized, states that recognize common-law marriage confer legal marital status to informal unions. In other words, consenting individuals marry themselves. In doing so, though, they enter into the web of formal marital entitlements and liabilities laid out by the state. Common-law marriage therefore has the paradoxical effect of granting greater autonomy to conjugal partners from the state, while at the same time extending new legal consequences to informal relationships. It plays a peculiar role in the American political history of the public governance of private relations.

Combinding archival and statistical methods, I examine the period between 1810 and 1940, during which most U.S. states first adopted and then rejected the doctrine of common-law marriage. I use historical census data and an original dataset of state-level statutory and case law to estimate event-history models of common-law marriage. I supplement these models with close readings of state constitutional conventions, legislative debates, and jurisprudence in leading and laggard states.

The paper sheds light on the contemporary politics of marriage regulation. Increased non-marital cohabitation gives new importance to the specific question of conferring formal rights and obligations to informal partners. More generally, the paper recommends understanding the evolving governance of intimate relations not only as the outcome of shifting norms and socioeconomic relations, but also as an ongoing, uneven and often cyclical political contest between individuals, local communities, the church, and the state. In other words, nearly every time normative questions about the substance of legal marriage arise, so too do political questions about who rightly defines and enforces its terms.