Marriage is a quintessentially private institution. Justice Douglas put the point this way in 1965, writing for the Supreme Court in Griswold v. Connecticut: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Ironically, this appeal to history elided the fact that the Court's decision made a substantial break with a longstanding tradition of marriage regulation. In hindsight, Griswold's paean to privacy stands as an important turning point. American family law changed quickly and radically in the years that followed. What has remained constant is the belief that family life is private, even as the meaning of family privacy has changed. The subject of Nancy Cott's Public Vows: A History of Marriage and the Nation seems startling at first in view of this conventional understanding. As she suggests, "[t]he monumental public character of marriage is generally its least noticed aspect" (p. 1). Cott addresses this oversight with a sweeping investigation into marriage and family policy throughout American history. She argues that "[f]rom the founding of the United States to the present day, assumptions about the importance of marriage and its appropriate form have been deeply implanted in public policy, sprouting repeatedly as the nation took over the continent and established terms for the inclusion and exclusion of new citizens" (p. 2).
Ann L. Estin,
Marriage and Belonging,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol100/iss6/25