In the shadow of marriage: single women and the legal construction of the family and the state.

AuthorDubler, Ariela R.

CONTENTS I. INTRODUCTION: WIDOWS AND THE LEGAL REGULATION OF SINGLE WOMEN II. MAPPING MARRIAGE'S SHADOW III. DOWER AND ITS CRITICS A. The Legal Rights of Widows B. The Effects of Dower 1. Dower, Land Transfers, and the Blurring of Separate Spheres 2. Dower and Testamentary Freedom 3. Dower and Marriage's Shadow C. The Standard Story of Dower's Demise D. Woman's Rights Activists' Attack on Dower 1. Dower and the Suffrage Movement 2. The Equality Argument Against Dower 3. The Family Privacy Argument Against Dower 4. Bad Laws and Bad Husbands IV. THE DEMISE OF DOWER IN NEW YORK A. The Reform Process 1. Inheritance Law and the Meaning of Marriage 2. Marriage and Sex Equality B. The Feminist Fight for Dower Reform 1. Reform in the Postsuffrage Decade 2. Dorothy Kenyon's Agenda: Sex Equality and the Reconstruction of the Traditional Private Family C. The Forced Share Goes to the Supreme Court 1. The Origins of the McGlone Case 2. Judicial Approaches to Husbands' Freedom and Widows' Protection V. WIDOWS AND THE STATE: PRIVATE AND PUBLIC APPROACHES TO FEMALE DEPENDENCY A. Framing the Problem of Poor Widows B. Mothers' Pensions in New York: The Commission of Relief for Widowed Mothers C. Mothers 'Pensions and Dower Reform: Two Models of Marriage and the State D. After Dower VI. CONCLUSION: REMAPPING MARRIAGE'S SHADOW I. INTRODUCTION: WIDOWS AND THE LEGAL REGULATION OF SINGLE WOMEN

To many lawmakers, female poverty resoundingly signals the failure of marriage. In fact, one strand of twenty-first-century "welfare reform" identifies weaknesses in the institution of marriage as a root cause of women's poverty and, thus, proposes to fix marriage as a public policy solution to the problems faced by poor women, (1) If only more women could be brought within marriage's protective domain, politicians reason--both by getting more women to marry, and also by strengthening the core meaning of marriage as a life-long social and, especially, economic commitment--fewer women would live in poverty. Critics of government programs promoting marriage, by contrast, denounce this logic. Government policies, they posit, must tackle directly the crisis of female poverty, locating both its causes and its potential solutions in, for example, education and labor policies, rather than deflecting discussions of women's financial needs into the private family. (2)

Implicitly, competing descriptive and normative visions of the meaning and function of marriage drive this debate. These differing visions emerge from clashing conceptions of the proper relationship among women, the family, and the state. Proponents of marriage-promotion policies presume that the institution of marriage, if properly constructed, would do a prodigious amount of economic work: Marriage could and would provide for women's economic needs within the family unit. If more women would get married and stay married, the logic runs, individual men--newly cast in their proper husbandly roles--would provide for the financial needs of their wives, as well as those of their wives' children. Good husbands, therefore, would play a mediating role between women's material needs and the state's limited economic resources by privatizing wives' needs within the family. (3) Opponents of marriage-promotion policies, on the other hand, resist a vision of women's citizenship that is mediated through marriage. In so doing, they dispute both marriage's ability to guarantee that women's economic needs are sufficiently met, as well as the normative appeal of a vision of governance premised on a gendered model of male providers and female dependents within the nuclear family.

Beyond signaling the contested nature of contemporary welfare policies, the terms of the debate over marriage-promotion policies point to the complex relationship between marriage and unmarried women. To the extent that discussions over marriage-promotion policies turn on competing understandings of marriage, those understandings are being forged through discussions of the social and economic status of women living outside of marriage. Lawmakers apparently presume that the ultimate test of marriage's robustness lies in its ability or inability to act as a prescriptive solution to the problems facing even women inhabiting the world outside of its formal borders. After all, the proper role for marriage in welfare policy turns on what functions marriage--as a social, political, legal, and economic institution--can be expected to perform for those who legislators hope will enter into its domain in the future. Single women thus constitute the sociopolitical terrain on which lawmakers craft their descriptive and aspirational visions of marriage proper.

This Article uses history to analyze and critique both the expansive model of marriage that underlies marriage's viability as the policy solution to female poverty, as well as the relationship between this expansive model and the legal regulation of single women. Contemporary legal debates about the normative significance of female financial dependency--not only those conducted by legislators, but also those unfolding in writings by feminist theorists--largely eschew a historical perspective. Thus, they treat marriage's public economic role and its political ramifications as a peculiarly modern phenomenon. (4) The notion that marriage offers a solution to female poverty, however, has a substantial history, embedded in a still larger history of marriage as a tool of public policy. (5) In this Article, I mobilize one strand of this history to tell two stories about the relationship between formal marriage and women inhabiting the vast social and legal terrain outside of its borders.

First, I tell the story of how the ideological functions of marriage--particularly, its imagined role in solving the problem of female economic dependency--have been extended to define and regulate the rights of unmarried women and their relationship to the state. While scholars have long recognized the ways in which marriage has mediated the relationship between wives and the state, this Article argues that attention to the history of political discussions of female dependency makes visible another fundamental and, yet, overlooked feature of marriage's vast strength as a tool of public policy: Historically, marriage has functioned as a gnomon, the central pillar of a sundial, casting shadows outward and covering even women not formally under the law of coverture--the common-law system of husband-wife relations that "covered" a married woman's legal identity with her husband's identity--or more modernized forms of marital status law. (6) If marriage has formally governed the legal rights and status of some women, other women have lived in the shadow of marriage, regulated by marriage's normative framework even as they have inhabited terrain outside of its formal boundaries. (7)

Second, conversely, I tell the story of how--much as they do today in the welfare context--lawmakers have consistently forged the meaning of marriage proper within the peripheral terrain of its shadow. The legal regulation of unmarried women, in other words, has played a constitutive and contested role in legal constructions of the meaning of marriage, of women's rights within the family, and of the relationship between the family and the state. Hendrik Hartog has argued that "[i]t is through separations, through close examination of struggles at the margins of marital life and marital identities, that we come to a historical understanding of core legal concepts: of wife, of husband, of unity." (8) This Article argues that understanding the meaning of marriage requires a still further foray, beyond marriage's margins and into the territory outside of its formal borders.

The terrain of marriage's shadow is vast, and different groups of single women have inhabited disparate parts of it, by chance and by choice, for reasons ranging from the practical to the ideological. (9) In this Article, I focus on one group of women living outside of marriage: widows. I analyze the shifting construction of widows' legal rights--particularly, the move away from dower, a widow's common-law inheritance right to a life estate in one-third of her deceased husband's real property--as a way to pin down for inspection marriage's often elusive shadow. The legal treatment of widows thus serves as a case study of the relationship between marriage's sociolegal core and its remote periphery.

Widows have long resided squarely in marriage's shadow, both socially and legally. By definition, widows have existed formally outside of the marriage relationship: Their husbands have died and their marriages have, indisputably, ended. Even under coverture, a widow was indisputably a single woman in the eyes of the law. In coverture's terms, she reassumed the status of feme sole as opposed to a feme covert, (10) Yet, discursively, the very appellation of "widow" has neatly tethered a woman semantically and ideologically to her deceased husband, thereby preserving her social and cultural wifely identity. (11) Likewise, as I will discuss below, a widow's legal identity has long remained linked to her status as the (former) wife of her (deceased) husband.

As a point of historical entry into marriage's legal shadow, widows hold a peculiar appeal. Widows are like many groups of single women in that, time and again, they have forced judges and legislators to confront the problem of female poverty. (12) In so doing, they--like other groups of unmarried women in dire financial straits--have drawn lawmakers into the project of defining the reach of marriage's shadow as lawmakers have straggled to find ways to tie these single women's economic claims to the resources of particular men. Unlike other women living outside of marriage, however, widows have never been understood simply as "single women" with the cultural connotations of exclusion from, or rejection of...

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