England experienced what I’ve referred to as a “crisis of marriage” starting around the mid-eighteenth century with Lord Hardwicke’s Marriage Act, which was supposed to eliminate marital indeterminacy. That is, the 1753 legislation was supposed to help folks determine whether a marriage was legal and above-board. Given the vast range of marriage customs (broomstick wedding, anyone?) and conflicting laws (between Church and State, between England and Scotland, etc.) people weren't always certain if they were married or not. As it happened, the so-called 1753 Law of Clandestine Marriage was not that difficult to get around, as anecdotes, court cases, and novels subsequently proved. And instead of making marriage intelligible to its practitioners, the law only placed another in a series of mystifying veils over the institution, which grew more and more confused and vexing to its practitioners in the British Isles and throughout the British Empire over the next 150 years. Marriage was particularly susceptible to reforms in the Victorian Era, the “age of progress,” and these reforms were frequently described, demanded, and denounced in Victorian novels, poems, and stories.
We’re hearing echoes of the Victorian crisis of marriage in America today. We’re no longer certain what the point of the institution is, according to Robin West, a legal scholar whose work has been important in the Law and Literature movement as well. West writes that the question haunting us (U.S.) today is something like “What good is marriage?”
We—meaning all of us—need to contemplate this question, not only because it is an interesting one, but also because lawmakers will likely take steps over the next half century to change the legal contours of marriage. We need to raise the question regarding the good of marriage not only to deepen understanding. If we can go some ways toward answering the question, it will help guide deliberation on whether, and if, and how, we change it (Marriage, Sexuality, and Gender, 2007, p. 21).
She’s writing from the perspective of Law, and I’m frankly not sure who her audience is here. The book is a thorough description of three different stances folks take on marriage today: defending it, arguing to abolish it, and arguing to fix or redefine it. West herself takes the modest, moderate position that civil union law should be expanded as a socially legitimate alternative to marriage. But I digress: my goal here is not to review her important book, so much as to wonder aloud whether anyone is now writing fiction that criticizes today’s marriage laws? Are there novels that represent same-sex marriages? Are there stories that promote or criticize alternatives to marriage? Are American authors even interested in marriage anymore? It seems to me that the big names in twentieth-century U.S. fiction, Updike et al., were all-too preoccupied with adultery. Have they moved on to engage other issues around marriage, especially as the institution comes under increased strain?