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Inside the Castle

Inside the Castle: Law and the Family in 20th Century America

Joanna L. Grossman
Lawrence M. Friedman
Copyright Date: 2011
Pages: 448
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  • Book Info
    Inside the Castle
    Book Description:

    Inside the Castleis a comprehensive social history of twentieth-century family law in the United States. Joanna Grossman and Lawrence Friedman show how vast, oceanic changes in society have reshaped and reconstituted the American family. Women and children have gained rights and powers, and novel forms of family life have emerged. The family has more or less dissolved into a collection of independent individuals with their own wants, desires, and goals. Modern family law, as always, reflects the brute social and cultural facts of family life.

    The story of family law in the twentieth century is complex. This was the century that said goodbye to common-law marriage and breach-of-promise lawsuits. This was the century, too, of the sexual revolution and women's liberation, of gay rights and cohabitation. Marriage lost its powerful monopoly over legitimate sexual behavior. Couples who lived together without marriage now had certain rights. Gay marriage became legal in a handful of jurisdictions. By the end of the century, no state still prohibited same-sex behavior. Children in many states could legally have two mothers or two fathers. No-fault divorce became cheap and easy. And illegitimacy lost most of its social and legal stigma. These changes were not smooth or linear--all met with resistance and provoked a certain amount of backlash. Families took many forms, some of them new and different, and though buffeted by the winds of change, the family persisted as a central institution in society.Inside the Castletells the story of that institution, exploring the ways in which law tried to penetrate and control this most mysterious realm of personal life.

    eISBN: 978-1-4008-3977-3
    Subjects: Law, History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. 1-24)

    Everybody, in every society, is born into a family. Even a newborn baby, unwanted, abandoned as soon as it is born, perhaps wrapped in a filthy rag and left on a doorstep, will eventually wind up in somebodyʹs family. A child without a family is likely to die. But there are families and there are families. They come in all shapes and sizes. There are loving families, unloving families, crazy families, saintly families, families made up of nothing but men or nothing but women, nuclear families and extended families, small families and large families. Even a person who lives alone...


    • CHAPTER ONE Marriage and the State
      (pp. 27-50)

      On May 2, 2008, Mildred Jeter Loving died at the age of sixty-eight, in her home in Central Point, Virginia. Ms. Loving, a woman of mixed race, was the widow of Richard Loving. She was survived by a son, a daughter, eight grandchildren, and eleven great-grandchildren. Richard Loving was a white man, and their 1958 marriage, which was illegal in Virginia, forced them to live in exile from their home state until the Supreme Court struck down the law in 1967.¹

      Foneta Jessop was also sixty-eight when she died in 2009. At the foot of the open casket, in Colorado...

    • CHAPTER TWO Marriage, Law, and Society: A Tangled Web
      (pp. 51-77)

      When Mayme Vailʹs husband became critically ill with tuberculosis in 1948, she promised to go to church every day, a sort of bargain for his return to good health. She probably did not anticipate that she would be attending mass daily for at least sixty more years, or that she and her husband, Clarence, would make it to the Guinness Book of Records for the longest marriage recorded by a living couple as of 2008. At ages 101 and 99, respectively, Clarence and Mayme celebrated their eighty-third anniversary in White Bear Lake, Minnesota, surrounded by their big and loving family,...

    • CHAPTER THREE Common-Law Marriage
      (pp. 78-89)

      The United States entered the twentieth century with at least the remnants of a peculiar doctrine that had flourished in the prior century: the common-law marriage.¹ In this chapter, we describe the adventures—and the decline and fall—of the doctrine of common-law marriage in the twentieth century.

      A common-law marriage was an informal, but perfectly legal, marriage. If a man and woman agreed with each other to be husband and wife, then, from that moment on, theywerehusband and wife, without a marriage license, a judge or clergyman, witnesses, or anything else. A series of court decisions, in...

    • CHAPTER FOUR The End of Heart Balm
      (pp. 90-106)

      One striking aspect of family law in the twentieth century was the decline and fall of a group of closely related causes of action: breach of promise of marriage, alienation of affections, and criminal conversation. One might add here, too, civil and criminal actions for ʺseduction.ʺ

      The story is tangled and complex; no one factor explains why these causes of action lost ground. But they are obviously connected with the social meaning of marriage, and very notably, with one striking twentieth-century development: the sexual revolution—specifically, the end of the idea that only married people were entitled, legitimately, to have...


    • CHAPTER FIVE The Rise of Sexual Freedom
      (pp. 109-120)

      In the first decade of the twenty-first century, a flurry of cases asked the same curious question: does the U.S. Constitution protect an individualʹs right to purchase, promote, or use sex toys? That this question was even asked in a court of law is a remarkable sign of the times. After all, there is a long history in the United States of regulating, and prohibiting, a whole range of sexual practices. But at least one federal appellate court answered the question in the affirmative: yes, friends, the right of sexual privacy may well be broad enough to include buying and...

    • CHAPTER SIX Cohabitation
      (pp. 121-141)

      No trend has so impacted family life in the twentieth century as the meteoric rise of cohabitation, both as a prelude to marriage, or as an outright substitute. This trend is one outcome of the sexual revolution, the new sexual freedom, which we talked about in the last chapter. Courts and legislatures have had to grapple with a new social fact. In this chapter, we consider how cohabitation has come to lose its criminal stigma; along with the growing ability of couples who live together to make claims against each other, or to demand some sort of family-like status. The...

    • CHAPTER SEVEN Same-Sex Relationships
      (pp. 142-156)

      There have been two big marriage stories in the twentieth century—the decline of anti-miscegenation laws and the emergence of gay marriage. But the second story is incomplete. Here, we describe the social and legal revolution that brought us from an era in which same-sex marriage was never contemplated to one in which, depending on the state, it is either expressly authorized or expressly prohibited. This may be the last battleground over ʺtraditionalʺ marriage, whatever that may entail.

      Richard Baker and James McConnell applied for a marriage license in the Hennepin County clerkʹs office in Minnesota on May 18, 1970....


    • CHAPTER EIGHT Untying the Knot: Divorce and Annulment
      (pp. 159-191)

      In the twentieth century, one frequently hears that marriage and the nuclear family are under siege. Divorce—and especially the rise of no-fault divorce—contributes centrally to that image. This chapter tracks the divorce story, from the traditional system of fault-based divorce to the new system of divorce on demand, and takes a look, too, at annulment; and the recent backlash that tries, mostly without success, to use the law to try to stem the tide of family breakdown.

      There are, basically, two legal ways to end a marriage: divorce and annulment. Of course, there are also informal ways of...

    • CHAPTER NINE Dollars and Sense: The Economic Consequences of Divorce
      (pp. 192-214)

      Divorce can swiftly end a marriage, but the economic consequences can last a lifetime. As with many aspects of family law, the law governing the economic consequences of divorce underwent a dramatic shift during the twentieth century. In broad brush, husbands lost exclusive control and ownership of property during and after marriage; more and more they had to share ownership during marriage with wives, who had strong claims to property upon dissolution; the common-law tradition that relied on strict (and unequal) gender roles shifted to a more egalitarian approach. Yet even under the modern rules, women suffer more financially than...

    • CHAPTER TEN Collateral Damage: The Children of Divorce
      (pp. 215-232)

      There are minor children in roughly half of all divorces. Who gets custody? Typically, both parents are fit; both have a constitutionally protected interest in rearing their children; but both have also chosen to live separate lives. Neither has a superior constitutional claim; and courts simply have to apply the state standard for handling custody disputes.¹ Along with fights about money, custody disputes are at the heart of many contested divorces.² This chapter will explore the rules and standards courts are supposed to use, in awarding custody; and how these rules and standards have shifted over the years. It will...


    • CHAPTER ELEVEN The Extended Family: Elder Law and the Law of Inheritance
      (pp. 235-261)

      Despite all the changes throughout the twentieth century, families are still the bedrock of society. Family life is where children are raised, where men and women commit to each other. Family life involves nurturing, caring, loving, and sex; all in functional and dysfunctional ways. But, as we have seen, family life is also about money. Families are economic units as well as social units and units of intimacy. In the typical family, one or more of the members works, and earns money. And, also in the typical family, the money is shared with other members, though the patterns of sharing...

    • CHAPTER TWELVE Parents and Children: Rights and Duties
      (pp. 262-285)

      B.F. Skinnerʹs novel,Walden Two(1948), describes a utopian community that solves the ʺproblems of the family,ʺ in part by handing children over to group care. ʺHome is not the place to raise children,ʺ Skinner wrote.¹ In PlatoʹsRepublic, children would be removed at birth, to be raised by the state. Wives and children were to be ʺcommon,ʺ and no parent was ʺto know his own child, nor any child his parent.ʺ² In the Israelikibbutz, children were raised communally; parents had visiting rights, but the children lived and were cared for separately. (The practice was later abandoned.) In some...

    • CHAPTER THIRTEEN Whom Do We Belong To? Parentage and the Law
      (pp. 286-304)

      Who is a parent? Who is a child? For most people, the answers are simple and obvious. And yet, consider these recent events in our brave new world: Stella Biblis is conceived with sperm donated twenty-two years earlier by her father, then a teenager suffering life-threatening leukemia.¹ Or this: a sixty-six-year-old woman dies, two years after giving birth to twins conceived with donated eggs and donated sperm.² A 2009 federal government study on non-marital births found that nearly four in ten births are to unmarried women, almost twenty times higher than in 1940, but also 26 percent higher than just...

    • CHAPTER FOURTEEN Chosen People: Adoption and the Law
      (pp. 305-329)

      As should be obvious by now, American families are formed, both socially and legally, in many ways. One of the obvious ways is through adoption. This chapter will trace, briefly, the history of adoption law; and take a look at some of the more tricky issues that surround this institution—cross-racial adoption, for example, and the role adoption plays in the formation of gay and lesbian families.

      Adoption as we know it today is a product of the middle of the nineteenth century. The common law had no provision for adoption (it was present in Roman law, and was carried...

  9. CONCLUSION: Into the Void
    (pp. 330-332)

    In this book, we have explored the complex and fascinating world of family law—which in turn reflects the complicated and fascinating world of the family. In the twentieth century, families and family law underwent massive changes; and this book has tried to describe these changes, and (as best we can) to explain them.

    In some ways, these changes seem consistent with one another, seem to go in one direction, and to move steadily along one particular path. Traditional morality has suffered serious defeats. Living in sin is no longer a sin for most people. Illegitimacy has lost its bite....

  10. NOTES
    (pp. 333-422)
  11. INDEX
    (pp. 423-443)