From the colonial period to the second decade of the twenty-first century in the United States of America, marriage has been the subject of legislation and court decisions. Specifically, the question that I am exploring herein is how statutes and court decisions define or permit “who can marry whom?” The following is not intended to be a detailed overview of more than four centuries of history. Undoubtedly, there exist monographs and books written on this topic and the interested reader can search them out. I did a search through DuckDuckGo on “history American marriage laws”, which returned several hits. The first sites, including Wikipedia, contained some information about the changes in American law since the colonial period and several things jumped out at me and that’s what I want to discuss. The reader is warned that this might be “getting into the weeds” somewhat, but the overall trend addressing “who can marry whom?” is what I’m interested in sharing with you.
From the colonial period to about the time the Mormons settled into Utah, racial monogamy was the dominant issue. Various laws were enacted forbidding interracial marriage, primarily focused on black/white marriages. One 1664 British colonial law in Maryland declared interracial marriages between white women and black men to be a “disgrace,” and established that any white women who participate in these unions shall be declared slaves themselves, along with their children. This law was later modified in 1691 by the Virginia Colonia Government to mandate exile instead of forcible slavery for both sexes (same website as above link).
The eighteenth century appears to have been relatively quiet with respect to marriage. Things began heating up in the nineteenth century.
In 1865, the Mississippi Black Code prohibits Blacks from marrying whites, punishable by life imprisonment.
With the rise of the the Utah Mormon community in the late 1830s, polygamy became another issue to wrestle with in addition to interracial marriage. This form of marriage drew the ire of the United States government.
The U.S. government was hostile to Mormons for most of the 19th century, owing mostly to the tradition’s past endorsement of polygamy. In Reynolds v. United States, the U.S. Supreme Court upheld the federal Morrill Anti-Bigamy Act, which was passed specifically to prohibit Mormon polygamy; a new Mormon declaration in 1890 outlawed bigamy, and the federal government has been largely Mormon-friendly ever since.
https://www.thoughtco.com/marriage-rights-history-721314
A Wikipedia article adds more detail about the 1878 Reynolds v. United States decision in the above quote. It made the Free Exercise Clause of the First Amendment subject to the police power.
The first case to closely examine of the Free Exercise Clause was Reynolds v. United States in 1878. A case dealing with the prosecution of a polygamist under federal law, and the defendant’s claim of protection under the Free Exercise Clause, the Court sustained the law and the government’s prosecution. The Court read the Free Exercise Clause as protecting religious practices, but that didn’t protect Reynolds’ practices which were crimes.[4] The court went on to echo Reynolds in the 1890 case Davis v. Beason: “However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.” The Reynolds case, which also revived Thomas Jefferson‘s statement regarding the “wall of separation” between church and state, introduced the position that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.
https://en.wikipedia.org/wiki/Free_Exercise_Clause
Federal laws started to appear on the books that criminalized polygamy.
The Edmunds Act, also known as the Edmunds Anti-Polygamy Act of 1882,[1] is a United States federal statute, signed into law on March 23, 1882 by president Chester A. Arthur, declaring polygamy a felony in federal territories. The act is named for U.S. SenatorGeorge F. Edmunds of Vermont. The Edmunds Act also prohibited “bigamous” or “unlawful cohabitation” (a misdemeanor),[2] thus removing the need to prove that actual marriages had occurred.[1] The act not only reinforced the 1862 Morrill Anti-Bigamy Act but it also made the offense of unlawful cohabitation much easier to prove than polygamy misdemeanor and made it illegal for polygamists or cohabitants to vote, hold public office, or serve on juries in federal territories.[3]
https://en.wikipedia.org/wiki/Edmunds_Act
In 1883’s Pace v. Alabama decision, the Supreme Court upheld the ban on interracial marriage.
Maynard v. Hill, 125 U.S. 190 (1888) Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
Moving into the twentieth century, a significant number of marriage laws were passed and major court cases decided that impacted the marriage laws on the books. In addition, I am including observations from various decisions with respect to marriage. The following comes from Wikipedia’s articles on the timeline of civil marriage and the list of major court decisions related to marriage as well as from solidarity-us.org.
In 1907, a statute was passed changing a woman’s nationality to that of her husband if she married a man of a different nationality than hers after 1907.
The Revenue Act of 1913 established recognition of marriage in federal law.
A so-called “Ladies Agreement” in 1920 banned “picture brides” from Japan and Korea.
Meyer v. Nebraska, 262 U.S. 390 (1923) The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
In 1924, that year’s Immigration Act banned the entry of the wives and children of Chinese Americans.
By 1929, all states now have marriage license laws on the books.
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) Marriage is “one of the basic civil rights of man” and “fundamental to the very existence and survival of the race.”
In 1948, the California Supreme Court in Perez v. Sharp declared the ban on interracial marriage to be unconstitutional and then the United States Supreme Court followed suit in 1967’s Loving v. Virginia decision.
Beginning in the late 1960s, a new controversy arose surrounding same-sex marriage. In 1971, the United States Supreme Court refused to hear the first challenge to the ban on same-sex marriage in Baker v. Nelson.
In 1973, the State of Maryland defined in statute that the legal definition of marriage was between a man and a woman. Maryland was the first state to create this definition.
Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
Moore v. City of East Cleveland, 431 U.S. 494 (1977) “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
Also in 1977, Carey v. Population Services International, 431 U.S. 678 (1977) “[I]t is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
Zablocki v. Redhail, 434 U.S. 374 (1978) “[T]he right to marry is of fundamental importance for all individuals.”
In 1981, Kirchberg v. Feenstra overturns state laws designating a husband “head and master” with unilateral control of property owned jointly with his wife.
In 1984, the City of Berkeley in California granted legal partnership rights to same sex couples.
Turner v. Safley, 482 U.S. 78 (1987) “[T]he decision to marry is a fundamental right” and an “expression[ ] of emotional support and public commitment.”
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. […] These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
1996 was a busy year. A court said in M.L.B. v. S.L.J., 519 U.S. 102 (1996) “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” A major law passed was The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) [which was] the first federal law to explicitly promote marriage and encourage the formation of two-parent [heterosexual] families. Also in that year, President Bill Clinton signed into law the Defense of Marriage Act which outlawed federal recognition of both polygamy and same-sex marriage.
1998 was another busy year. Hawaii amend[ed] its constitution to allow the legislature to ban same-sex marriage, in response to a court ruling which would otherwise have allowed such marriages. Alaska becomes the first state to ban both same-sex marriage and polygamy in its constitution. Also, South Carolina was the second to last state to remove the ban on interracial marriage from its state constitution.
The legislation and significant court cases continued into the early decades of the twentieth century with undoubted major impacts.
In 2000, Vermont legislature passes and Vermont Governor signs a law creating civil unions for same-sex couples, giving these couples all the rights and benefits of marriage under Vermont law but not marriage licenses.
Lawrence v. Texas, 539 U.S. 558 (2003) “[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
After Lawrence v. Texas, starting in 2004, states began to recognize full same-sex marriage and issue marriage licenses. Other states passed constitutional amendments to outlaw same-sex marriages and polygamy.
Twelve years after Lawrence v. Texas, the United State Supreme Court ruled that same-sex marriage is constitutional. Obergefell v. Hodges, 576 U.S. ___ (2015) “[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”
Recently in May 2020, Utah essentially decriminalized polygamy by making it a misdemeanor.
Looking over the past four centuries in American law and jurisprudence, there are three great controversies about “who can marry whom?”. First arose the issue of interracial marriage in the early colonial states. That issue wasn’t completely resolved until the twenty-first century when Alabama removed the ban on interracial marriage in 2000. The second great issue was polygamy. This form of marriage is still criminalized in all state constitutions and in federal statute, as far as I know. The third issue was same-sex marriage. This was activist driven more than the first two and with Obergefell v. Hodges‘ favorable decision, is now the law of the land, with all bans of same-sex marriages ruled unconstitutional. Various courts have said that marriage is really for the couple to decide, but those observations have, to date, only applied to interracial and same-sex marriage, not polygamy. For both interracial and same-sex marriage, it took an United States Supreme Court decision to rule those are constitutional, and then Federal statutes and State constitution and laws were amended in response. Likely, for polygamy to become legally recognized in the United States, it will also take a United States Supreme Court decision.
11:3 Restoration 
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