In the debate over same sex marriage, many assumptions are made that narrowly focus on the element of “desire” -- that is, sexual intimacy between the two partners -- and whether that intimacy ought to be justified by conventionally endorsed and defended institutions, which is to say both legal marriage certified by the state and sanctified marriage with confirmation by a religious institution which are assumed to be the same. There is a third recognition of partners which is often called “Common Law Marriage” and which in Montana is now recognized according to the criteria described here:
There is a way of formally confirming Common Law Marriage, which is to sign a Declaration of Marriage without Solemnization and register it with the clerk of the court. The crucial element in this third option is public acknowledgement of a relationship like that of husband and wife. It does specify that they cannot be of the same sex nor too closely related. It also says that the way of managing money or using certain names does not apply and that a Common Law Marriage must be terminated by divorce.
While the urban middle class has been obsessing about marriage and its ceremonies, people across the country have been “shacking up.” In the Sixties and Seventies this was defiantly defended and formal marriage was mocked as “just a piece of paper.” People came and went, babies came and stayed, and the legal system could only follow. As is the case with the Catholic church, which technically enforced the sin of birth control and the sin of divorce as well as sex outside of marriage, people simply ignored the rules despite stigma and hardship. If the Catholic church had enforced its own rules, it would have cleared the pews. When cultural changes are at work, the law that does not have popular consent cannot be enforced.
In the past when trappers came into the high prairie from European countries, they often formed partnerships with indigenous women both out of affection and because such high risk, physically challenging occupations required a home base where they could recover, resupply, and be reassured. The result was marriages which are described in the genealogy materials as “in the fashion of the country” -- except that they said it in French. Some of these men, when European women became available, ignored their previous wives, not bothering with divorce. Some, when they went back to their birth homes, handed off their native wife to another trapper or factor. Some created and maintained marriages of mixed heritage which persist and prosper to this day. (See “Many Tender Ties” by Sylvia Van Kirk)
In the early days of the settling of the prairie, the main governmental mechanism was to ignore the ownership of the indigenous people and simply divvie up the land into homesteads which were given away to Euro immigrants in a form of indenture: “proving up” by living on and cultivating the land for a period of time. (Later the “Dawes Act” imposed this on reservations as well but without “proving up”.) In part this was made easier because pandemics had eliminated much of the indigenous population in the same way that the “Black Plague” eliminated a comparable proportion of the population of Europe. No incoming population took over the vacated land in Europe, but religious orders sometimes formed to claim and farm it.
Changing focus to the urban ghettoes of both Europe and America, in the days before infection was understood and before gestating women were given proper health care, including birth control, it often took two, three or even four wives to birth and raise a family of children. The dynamics of this burden on women was so onerous that they could only be compelled to stay by religious exhortations and the lack of any place to go. And since the women were already trapped, only conscience and affection could prevent violence, drunkenness, and even morphine addiction among the women.
Changing focus again to the upper classes of Britain, the convention was to send boys at a young age to boarding schools where they were disciplined harshly and taught to suppress emotion because it was a sign of lacking courage. The idea was to create tough, loyal, dominating young men to run the Empire. They succeeded in some cases, all too well, leaving the women to find any advantages they could of living in a household of servants which they were required to dominate, and to provide heirs.
WWI gave these systems a gut punch by killing a generation of men, about half in combat and half by disease. Not many maimed and shocked men ever returned home because saving care was not available, but many women formed partnerships with each other. Whether physical desire was part of them is irrelevant. The many orphans were cared for in institutions or farmed out as labor. “Anne of Green Gables” was a victim of child trafficking.
WWII had similar results. Korea, not so much, but by the time Vietnam unfolded, the public was seeing the war on television, experiencing violent social upheaval at home, and asking a lot of questions about why we do things the way we do them. This triggered a very strong backlash and insistence that we must “go back to normal.” Those who participated in the unanimity over the heroism of WWII were boggled by the revelations of dishonest, criminal, alien, inhuman, innocence-murdering events they had never imagined and certainly had never expected our own country to perpetrate.
Over centuries, the government has tried to support economic arrangements and criminal laws that would encourage stability and prosperity. This is the point of government. So laws were created with an eye to giving a bit of an advantage to those who were married, but they contained the ghosts of the past, from miscegenation to incest to immigration to homesteading to fur trapping to boarding schools. Now we are faced with a combination of rethinking and experimental fiddling around to see what works.
Clearly two human beings in an intimate, co-dependent, supportive relationship can be hard-pressed to sustain their commitment when circumstances change. The children are the main victims both of the emotional and the economic consequences, whether the two people involved stay together or separate or move into new pairings or can’t seem to settle into any long-term partnership. The individuals need social support, whether it is through subsidies or counseling or protective housing or medical care. These needs apply as early as adolescence because the reality is that as soon as young people are sexually active, they produce children. If they are same-sex couples who pair-bond, they still need and deserve much the same treatment.
Even earlier than what we consider “conventional” marriage, one of the structures of society has been male partners, sometimes brothers and sometimes just bonded friendships. Usually the status of intimacy is not specified, but their loyalty to each other in hunting, battle, and business is an advantage to them both and to their families.
Close relationships between women are also storied. Consider Ruth 1:16: “And Ruth said, Entreat me not to leave you, or to return from following after you: for where you go, I will go.” The point is that Ruth was a Moabite, an outgroup, but at the death of her husband she chose to define her mother-in-law Naomi as her family.