Marriage and the State, Based Upon Field Studies of the Present Day
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MARRIAGE AND THE STATE Based Upon Field Studies of the Present Day Administration of Marriage Laws in the United States BY MARY E. RICHMOND, Author of Social Diagnosis and What Is Social Case Work ? and FRED S. HALL, Joint Author of American Marriage Laws NEW YORK RUSSELL SAGE FOUNDATION 1929 r Copyright, 1929, by Russell Sage Foundation WM. F. FELL CO • PRINTERS PHILADELPHIA • ♦ ♦ * TABLE OF CONTENTS Chapter I page INTRODUCTION 9 I. Method of Inquiry 11 II. Marriage and the License System on the Frontier 17 PART I WHAT HAPPENS IN LICENSE OFFICES Chapter II THE LICENSE SYSTEM OF TODAY 41 I. The Usual Procedure 42 Chapter III THE LICENSE ISSUER 47 I. The Discretion Exercised by Issuers 48 II. The Issuer and the Law 67 III. The Appointment and Election of License Officials 76 Chapter IV EXPLOITATION 84 I. The Marriage Market Town 84 II. Other Forms of Exploitation 101 Chapter V ADVANCE NOTICE OF INTENTION TO MARRY 106 I. Origin of Advance Notice 107 II. Present Development of Advance Notice 109 3 TABLE OF CONTENTS PART II SOME SOCIAL ASPECTS OF MARRIAGE Chapter VI PAGE YOUTHFUL AND CHILD MARRIAGES 123 I. The Minimum Marriageable Age 128 II. The Consent of Parents 134 111. Available Proofs of Age 141 Chapter VII HASTY MARRIAGES 147 I. Certain Characteristics Illustrated 148 II. Out-of-Hour Issuance 162 Chapter VIII CLANDESTINE MARRIAGES 165 I. Why Secrecy Is Desired 168 II. The Out-of-Town Marriage 174 III. Publicity Versus Verification 180 Chapter IX EVASIVE OUT-OF-STATE MARRIAGES 187 I. Earlier Movements for Reform 189 II. The Evasion Act 192 III. Is a Federal Law the Remedy? 198 IV. Possible Methods of Interstate Adjustment 206 4 TABLE OF CONTENTS PART III THE MARRIAGE CEREMONY Chapter X PAGE THE CIVIL OFFICIANT 217 I. Justices of the Peace 220 II. Other Civil Officiants 232 III. Suggested Remedies for the Present Situation 235 Chapter XI MARRIAGE AND THE CHURCHES 242 I. Denominational Standards of the Churches 243 II. Group Action 254 Chapter XII THE STANDARDS OF INDIVIDUAL CLERGYMEN 260 I. Rules for Personal Guidance 263 II. Social Disabilities Unrecognized 270 Chapter XIII THE MARRYING PARSON 280 I. Commercial Practices 281 II. Unseemly Surroundings 287 5 TABLE OF CONTENTS PART IV SUPERVISION AND ENFORCEMENT Chapter XIV page RECORDS AND PENALTIES 293 I. The Social Consequences of Incomplete Mar¬ riage Returns 295 II. Blanks and Record Forms 302 III. Penalties 305 Chapter XV STATE SUPERVISION 314 I. Existing Supervisory Powers 316 II. Duties of a State Bureau That Could Exercise Full Supervision 321 Chapter XVI RETROSPECT AND PROSPECT 330 I. The State and Marriage 332 II. Certain Recommendations 337 III. A Program of Action 347 APPENDICES APPENDIX A Blanks and Record Forms Suggested for Use in Carrying Out Various Administrative Procedures 355 APPENDIX B Comparison of Marriage Requirements, by States 370 INDEX 375 6 LIST OF TABLES PAGE 1. Number of License Issuers, by States 82 2. Interval between Application for License and Its Issuance or between License Issuance and Marriage no 3. Certain Specified Marriage Requirements, by States 370 7 The more closely any period of history is studied, the more clearly does it appear that the mistakes and troubles of an age are due to a false spirit, an unhappy fashion in thought or emotion, a tendency in the human mind to be overwhelmed by the phenomena of the time, and to accept those phenomena as the guide to conduct and judg¬ ment, instead of checking and criticising them by a reasoned standard of its own. Men come to think that it is their business to explain, rather than to control, the forces of the hour. —J. L. AND BARBARA HAMMOND 8 CHAPTER I INTRODUCTION IT IS necessary in any discussion to start with an assumption of some kind or with more than one. As a starting point for this analysis of the present administration of marriage laws in the United States, the assumption is made, without argument, that the monogamic form of marriage is the best form. There are those who question the social value of monogamy. This book is not for them. It has also seemed clear to us that the relation of the state to marriage will continue to be influenced by lawmakers, administrators, and the clergy. At present there are in round numbers some 178,000 of these (about 130,000 religious officiants empowered to solemnize marriages, 30,000 civil officiants, 10,000 marriage license issuers and their deputies, and 7,650 members of state legislatures) who are directly or indirectly responsible for interpreting the public in¬ tent to each candidate for matrimony. Marriage customs, in fact, have been shaped first by the development of ecclesiastical law and later by civil law. But they have also been molded by the way in which these laws have been applied. There is some- 9 MARRIAGE AND THE STATE thing, therefore, to be said for an approach to the subject which has been almost wholly neglected, namely, for an objective inquiry supplementary to the long accumulated experience of the churches and the legal profession—an inquiry, that is, into what now actually happens when two persons apply to the state for permission to marry. Not only in the law but in all the social sciences the habit of observing what happens is becoming a wholesome check upon theory and tradition. In such observation and reporting, modern social work has developed a method of its own which has been used in gathering material for the present volume. It must be acknowledged, however, that at best the findings and conclusions here summarized are only a beginning. Marriage is a large subject and we have selected only one aspect of it for consideration. Accordingly, that one aspect is projected into a sharp relief which throws it out of its due relation to the more personal side of marriage. And even so, only a part of a part is presented. There are 48 states and the District of Columbia in the Ameri¬ can federation, each with its separate history, its own marriage laws, its own way of administering them. It has been necessary perforce to use the sampling method and to select certain states fairly representative of different frontier beginnings, differ¬ ent statutory provisions, different climates and geo¬ graphical conditions, different industrial character¬ istics, and different racial influences. 10 INTRODUCTION I. METHOD OF INQUIRY Before a selection of states could be made, even with reference to the diversity of their laws alone, it was necessary to examine and compare the laws of all the states. Here was initial delay, and since there were no trustworthy, up-to-date digests of American marriage laws we were forced to make one of our own that would cover at least their social aspects. This analysis was published in 1919,1 a year before the plans for the present volume were first mapped out. During 1928 one of the last steps in its preparation was the compilation by a lawyer of a much fuller manual of marriage laws and decisions,2 which will appear simultaneously with the present volume on administration. The earlier analysis served an important purpose in that it supplied a number of leads for the field work begun in 1920. Massachusetts was the first state selected for relatively thorough field inquiry. Legislation in New England on the subject of marriage had from the beginning followed a direction of its own, and Massachusetts was taken as representative of the whole New England group. Our search everywhere was to be primarily for good procedures and good results provided they were at all typical. Quite early 1 Hall, Fred S., and Brooke, Elisabeth W.: American Marriage Laws in Their Social Aspects. A Digest. Russell Sage Foundation, New York, 1919 (Out of print). 2 May, Geoffrey: Marriage Laws and Decisions in the United States. A Manual. Russell Sage Foundation, New York, 1929. MARRIAGE AND THE STATE this Commonwealth had adopted forward-looking laws that contained carefully guarded administrative features. This was a second reason for our selection. Illinois, the most populous and representative of the important North Central tier of states, showed a very different legislative history from that of the New England group. It also contained the country’s second city in size. This state was our next choice. New York State was our third choice. Of the original 13 states in the Union, the only 2 that were included in our study were New York and Massa¬ chusetts. Court decisions in these 2 had been cited so frequently in the decisions of other state judiciaries that their selection seemed inevitable. Alabama’s geographical position, her social con¬ ditions that contrasted sharply with those of the other states selected, together with the fact that hers was the first legislature in the South to pass a law requiring medical certification for marriage, account for our fourth choice. Wisconsin, it was found, had adopted several marriage measures not yet generally accepted by other states. As she had a reputation for legislative and administrative experiments, here was the basis for a fifth choice. Finally, California and Oklahoma were selected to complete this list of 7 states to be studied with relative thoroughness. From the large number of bills relating to marriage that were being introduced in the California legislature about the time our 12 INTRODUCTION study began, we inferred that that state must be especially interested in the subject. Oklahoma was chosen as representative of conditions that had developed from frontier settlements of a relatively recent date. The influence of frontier conditions and of the nature of the original settlements upon later marriage developments in each of the 7 states is a subject to which we shall return presently.