By Evan Wolfson: From Chapter 3 of Why Marriage Matters: Women as Legally Subordinate to Their Husbands

For much of this country's early history, government enforced the common rule of "coverture" when it came to marriages. This doctrine, by which a woman's identity was "covered" by that or her husband—essentially reducing her to his chattel or property—grew out of civilization's agrarian period, when a family was dependent on all of its members to make the family business, the farm, work effectively and efficiently. To maintain social order at a time when only men could vote, society gave husbands the preeminent authority at home as well.

The husband's absolute authority required that his wife give up all of hers upon exchanging vows. Any property she owned, whether she acquired it before or after the marriage, became his. And, because the husband was the sole representative of his family unit, married women also lost their rights as citizens to sign contracts or to sue or be sued individually.

Just as the industrial revolution dismantled society's agrarian patterns, it encouraged women to stand up to these archaic legal doctrines. As women took their place in city sweatshops, they balked when their husbands pocketed their paltry wages. It was especially galling when even cheating—or imprisoned—men could stake legal claim on their wives take-home pay, as was the case in 1857, when a Massachusetts court ruled that a man who was in jail was still entitled to his wife's labor—and money.

As women increasingly started making their own keep, state legislatures began chipping away at the coverture doctrine by passing a series of Married Women's Property Laws, which, in turn, provoked a slew of "doom-and-gloom" predictions of how property-owning wives would mean the demise of marriage and the family unit. E.J. Graff describes how in 1844 a New York legislative committee stated that women's independence would lead to "infidelity in the marriage bed, a high rate or divorce, and increased female criminality," redefining marriage from "its high and holy purposes" into something solely about "convenience and sensuality." Meanwhile, a Maryland judge refused to recognize his state's Married Women's Property Law, stating that the law would destroy the "moral and social efficacy of the marriage institution... What incentive would there be for such a wife ever to reconcile differences with husband, to act in submission to his wishes, and perform the many onerous duties pertaining to her sphere? Would not every wife... abandon her husband and her home?" What incentive, indeed?

Vestiges of this legal subordination of women in marriage lasted a long, long time—think about how the tradition of "Mr. and Mrs. Him" comes from the idea that man's identity "covers" his wife. As late as 1976 a Massachusetts court was asked to decide if a wife, under common law, could sue her husband. (The court decided that yes, she could, but it was a matter of doubt as recently as the Bicentennial.) I myself, as a young attorney, worked on the case that ended what was called the "marital rape exemption" in New York — the rule, at one time pervasive throughout the states, that a man could not be prosecuted for raping his wife and taking what "belonged to him" as a husband. That was not some ancient past; that was 1984 in "liberal" New York.

Despite the broader agenda of the opponents of marriage equality for gays—an agenda very much alive, as shown by the 1998 Southern Baptist Convention's call for women "to submit herself graciously to the servant leadership of her husband"—most Americans today would not urge (at least not in front of their wives or daughters) that our country return to this tradition of marriage—no matter how "efficient" it made the family unit or conformed to some religious views of "God's plan" and the "definition of marriage."