Vol. 16 No.2 (February 2006), pp.179-181

 

MARRIAGE ON TRIAL: A HANDBOOK WITH CASES, LAWS AND DOCUMENTS, by Lee Walzer. Santa Barbara, CA: ABC-CLIO Press, 2005. 307pp.  Cloth. $55.00. ISBN: 1-85109-610-8.

 

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University.

E-mail: bowen [at] jcu.edu

 

As Lee Walzer notes in his Preface, the purpose of MARRIAGE ON TRIAL is to “explore how the American legal system has approached the regulation of marital relationships in our society.” The subtext is to demonstrate that marriage has never been a static institution but rather has had an evolving meaning, and that the government, via judicial decision, has validated different definitions of marriage. The vast majority of the narrative is devoted to an examination of the role of religion and race in defining marriage to suggest that social and political context matter in defining marriage. This is all to set the stage for situating same sex marriage into a conversation about how and why government has, does and perhaps will regulate marriage as it does.

 

The first chapter seeks to provide an overview of the issues and controversies. It is organized, as indicated by the subheadings, in terms of articulating the views and interests of various constituencies (e.g. African American, social conservatives, homosexuals, polygamists and other sexual dissidents, religion, men, women, and so on) about marriage. The narrative is not satisfying in large part because of this organizational structure. It is not apparent how and why the groups are ordered the way they are, and moreover, they are not comparable categories. Discussing how the institution of marriage affects women as a class and then detailing the views of social conservatives on the role of the state in regulating marriage seems to mix up the unit of analysis. Shifting then to categories like divorce and state governments suggests that the narrative is more descriptive than analytic. The lack of conclusion or synthesis reinforces this observation.

 

Still, the chapter contains some useful basic information for those not familiar with the regulation of marriage by the state throughout U.S. history. This information, including a discussion of the debate over polygamy as Utah sought statehood, as well as the relationship of slavery to contemporary marriage law, is more thoroughly developed in Chapter 2. Entitled “Historical Background” this chapter repeats much of the introduction, albeit in expanded form. Presenting largely social history, Walzer explains the rise of anti-miscegenation statutes in the context of slavery. Drawing heavily on the work of Rachel Moran (2001), Walzer details the creation of a caste system through the codification of bans on marriage on the basis of race. He then effectively documents attempts to overturn statutes banning interracial marriage via state courts, demonstrating that LOVING v. VIRGINIA (1967) is the culmination of nearly a century of efforts, with the most organized and [*180] concerted activism occurring after World War II. Polygamy is then discussed in the context of 19th century regulation directed at Mormons. Considering Congressional legislation, the author concludes that “the federal government succeeded in subduing polygamy in Utah” (p.42). Then the discussion turns to same-sex marriage. The troubling part about this discussion is that it is more descriptive than analytic. While both the anti-miscegenation and polygamy examples demonstrate the power of government to regulate marriage, it is not clear whether state power is seen as oppressive or liberating, and for whom. Without a theoretical framework, it is difficult to locate the same-sex marriage debate in the conversation. While some might argue that all regulation is inherently oppressive, others might conclude that without government protection, exploitation (e.g. women in polygamous relationships) is possible. Although it is worth noting that “[i]n the twenty-first century, the new boundary of American marriage is being drawn by same-sex couples” (p.43), there is not enough theoretical focus to sustain the discussion. Recent case law from Vermont and Massachusetts is detailed, but the conclusion seems to be little more than “the battle over same-sex marriage is still being fought, and likely will continue to be for several years to come” (pp.47-48), without much sense as to how we might expect the issue to be resolved or why.

 

Chapter 3, entitled “The Cases,” provides a discussion and analysis of the cases that give shape to the narratives of Chapter 2. The facts of LOVING v. VIRGINIA are provided, the outcome is described and then some analysis follows. This format is followed for the other four cases included: REYNOLDS v. U.S. (polygamy), MARVIN v. MARVIN  (palimony), and two same-sex marriage cases, GOODRICH v. DEPARTMENT OF PUBLIC HEALTH (Massachusetts) and BAKER v. VERMONT. The best analyses among the group are of GOODRICH and BAKER, perhaps because they are the least familiar in terms of legal reasoning and most germane to the purpose of the volume. Forty-two pages of narrative of the entire book (137 pages) are devoted to these two cases. Each majority, concurring and dissenting opinion is thoroughly summarized. The analysis suggests that state constitutions and laws have been more effective in securing the rights of gays and lesbians than has federal law. Walzer, however, makes clear that although some states are protecting same-sex marriage, many others are not, and that, of course, the issue is a “political lightning rod, much (like) abortion” (p.119) and has “shaken up both American jurisprudence and politics” (p.100).

 

“The Future of Marriage” is the title of Chapter 4, and it is easily the strongest in the volume. Drawing upon the preceding discussions, this chapter starts from the premise that “marriage is an ever-changing institution” (p.121). This argument is given more shape and focus than earlier, with Walzer demonstrating that “the features that make up marriage have differed not only between cultures but also within a particular culture over a period of time” (p.122). All this is to suggest that same-sex marriage will ironically have minimal effect on [*181] marriage but will lead perhaps to broader social changes. The historical record indicates that the definition of and standards for marriage have not been static and that same-sex marriage can be incorporated into the debate, given existing structures, without much legal difficulty. Yet, the political climate and broader concerns about sexuality do suggest that legal acceptance of same-sex marriage will prompt a new societal understanding of marriage. Ultimately, then, Walzer implicitly argues that government and courts respond to social change and in so doing help to promote social change.

 

The second half of the book includes various primary source documents relevant to the issue at hand. The cases and statutes discussed at length in the first half of the text are included here. While it makes sense to incorporate such material in a work subtitled “Handbook with Cases, Law and Documents,” this material could be more clearly organized. There are no subheadings or a sufficiently detailed table of contents to locate cases and statutes easily. Inclusion of these materials also highlights one of the volume’s weaknesses—the intended audience is not clear. The first half is more descriptive than analytic, and often repetitive. It does not offer much new to graduate students or scholars in the field. Yet it presents more than sufficient information for undergraduates, making it highly unlikely they would consult the primary source material in the second half. The thorough description of the documents would likely suffice for that audience.

 

In sum, I found this to be a disappointing volume. It would have benefited from tighter editing, preventing chapter-to-chapter redundancy. A clearer theoretical and organizational framework would also have minimized the repetition and tendency to be overly descriptive. Still, for those who know very little about the history of marriage and the ways in which the state has regulated it, this primer provides a thorough overview.

 

REFERENCES:

Moran, Rachel F. 2001. INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE. Chicago: University of Chicago Press.

 

CASE REFERENCES:

BAKER v. VERMONT, 744 A.2d 864 (1999).

 

GOODRICH v. DEPARTMENT OF PUBLIC HEALTH, 798 N.E.2d 941, (Mass 2003).

 

LOVING v. VIRGINIA, 388 U.S. 1 (1967).

 

MARVIN v. MARVIN, 557 P.2d 106 (Cal. 1976).

 

REYNOLDS v. U.S. 98 U.S. 244 (1879).

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© Copyright 2006 by the author, Lauren Bowen.