They do things differently in Smith County, Texas. Or do they?
Last week, in Smith County, a judge presiding over an assault case ordered the defendant to marry his 19-year-old girlfriend or spend fifteen days in jail. Fearing the loss of his job and the prospect of jail time, the man reluctantly agreed, setting in motion a hastily-planned courthouse wedding.
That the case has drawn national and international media attention is unsurprising. At a time when we are celebrating the freedom to marry, a case where a court compels a marriage triggers some cognitive dissonance.
But it shouldn’t. Only a few generations ago, scenarios like the one in Smith County were routine. Until the mid-twentieth century, marriage played an important role in the enforcement of the crime of seduction. Enacted in roughly forty-one U.S. jurisdictions in the mid-to-late nineteenth century, seduction statutes made it a crime to have sex “with an unmarried female of previous chaste character” under a “promise of marriage.” A felony in most jurisdictions, seduction carried severe penalties. Those convicted of the crime faced between one and five years’ imprisonment; in some states, the penalty could be as high as 20 years in prison.
Seduction statutes often prescribed a specific defense to the crime: marriage. The defendant could avoid prosecution, and the victim could put the disrepute of her sexual indiscretion behind her, simply by saying “I do.” Accordingly, scenarios like the one in Smith County were not uncommon. Courthouses frequently were transformed from sites of criminal prosecutions into weddings.
Marriage allowed the couple to avoid criminal prosecution, but everyone knew that they were not getting away with anything. Marriage, with its expectations of monogamy, domesticity, and mutual support, deprived men and women of certain liberties, while simultaneously imposing upon them the discipline required for dealing with family responsibilities.
Husbands, for example, were expected to provide financial and economic sustenance to their wives and children. To do so, they had to be steadily employed wage-earners engaged in the sorts of sober, diligent pursuits that allowed them to meet these obligations. Likewise, wives were not free to do as they liked. They were obliged to conduct themselves as respectable matrons, putting aside the frivolities and flirtations of girlhood in order to devote themselves single-mindedly to their husbands, their households, and their children.
Thus, while marriage did not involve physical confinement and the imposition of painful punishment, it did require the parties to surrender the economic, sexual and social freedom enjoyed by the unmarried in order to assume the disciplined identity and rigid gender roles that the institution imposed. In this regard, marriage, as much as imprisonment, was understood as an appropriate punishment for the crime—one that would rehabilitate and discipline both parties, turning sexual outlaws into respectable in-laws.
Today, the crime of seduction no longer exists in most American jurisdictions. Nevertheless, the residue of the history of marriage as punishment survives in certain forms.
Consider the oft-repeated jokes about “the old ball and chain” or bachelor and bachelorette parties where the honorees revel in one “last night of freedom.” Although they are meant in jest, these jokes betray an important—and often overlooked—aspect of marriage. Marriage involves relinquishing some aspect of personal freedom in order to submit to the disciplined identities of husband or wife.
This knowledge helps to make sense of the events in Smith County, but more importantly, it provides another lens through which to view the recent celebration of same-sex marriage. Although the Supreme Court’s decision was rightly heralded as progressive and forward-thinking, this history also suggests an underlying strain of sexual conservatism.
To be sure, the Supreme Court was correct in recognizing marriage as a source of love, companionship, and personal fulfillment. But marriage is far more complicated than Justice Kennedy’s rosy depiction of conjugal bliss suggests. As this history—and the events in Smith County—makes clear, marriage may also serve as a form of state-sanctioned discipline, channeling non-conforming sexual behavior into conduct that the state deems useful and appropriate.
It gives new meaning to the phrase, "Till death do us part," doesn't it?
Melissa Murray is a Professor of Law at the University of California, Berkeley. Her article, "Marriage as Punishment," appeared in the January 2012 issue of the Columbia Law Review.