[MAJeff here. I’ll remember this one of these times.]
Apparently, John Edwards had an affair. I’ve been out of the news loop and haven’t been following it other than what I see in a few blog comment sections. I’m honestly not all that interested in the sex lives of the powerful; I’m more interested in the social reaction. So, I’m going to talk about a few things that I’ve seen, and tie those into issues of marriage and sex regulation by the state.
One thing I’ve heard is, “at least he didn’t break the law.” Well, depending upon where his trysts took place, Edwards may have broken the law. Here in Massachusetts, for example, adultery is a crime that carries a penalty of incarceration in state prison for up to 3 years, jail up to 2, or a fine of up to $500. As of 2004, 24 states criminalized adultery. (Cossman, 2007: 209. fn6). Admittedly, such laws are rarely enforced, and the no-fault system means that even if cheating takes place, it’s less likely to be the legal “reason” for the divorce [“Irreconcilable differences” or its equivalent is the norm].
Marriage is a regulatory system. When folks stand in front of their witnesses, and take their vows (the state won’t allow you to marry without a public ceremony), they are entering a three-way contract, with conditions set by the state. One of those conditions is sexual monogamy. Mess around, and you’ve violated the terms of the contract. You’ve sinned against the state, and have committed a criminal offense.
Adultery itself has changed. At the founding of the Republic it wasn’t sex outside of marriage, but involved a married woman having sex with a man not her husband. Adultery laws were put in place to establish men’s property rights over their wives, and particularly to ensure that the children born into such relationships were theirs and not some other man’s. It wasn’t about violations of intimacy or trust, as we take it to be today. It was about stealing another
woman’s womb. [Ed. Oops. Big difference]
Indeed, the comment of Edwards’s, that he “didn’t love” the woman with whom he had the affair is a sign of that. In contemporary society, marriage has become about companionship and intimacy [see, for example, Giddens or Seidman]. One of the things that makes same-sex marriage imaginable to many people is the fact that marriage itself has changed in such ways as to make it imaginable. We no longer have the explicit gender-based marital roles established in law. (Everyone say, “Thank you” to the feminist legal activists who brought about a lot of those changes.) Marriage isn’t gender-role based, at least legally, in the rigid ways that it once was.
Additionally, marriage has become more focused on intimate life. It has, over the course of the past couple centuries, become a space in which emotional and affective life is more and more important. Indeed, a romantic friendship at work–devoid of sexual activity–or flirtatious talk in an online chat-room are now examples of infidelity, reasons worthy of filing for divorce. The contract has not been violated, but the intimacy and trust held as the contemporary bases of marriage have been. Marriage has become less about procreation and more about intimacy (Griswold severed the procreative imperative from marital conjugality). That has changed both what counts as cheating and which relationships count as marriages.
Even though, in some places, same-sex couples have been included in marriage, another comment I saw yesterday reminded me how homosexuality is still to be excluded from “legitimate” domestic and intimate spaces. Someone wrote: “I’m happy Edwards’s affair was with a woman, unlike those Republicans who have affairs with the same sex.” Adultery can be forgiven, homosexuality can’t.
Well, in Vermont, if that affair had been with a man, it would not have been adultery. Recall above the definition of adultery. I wasn’t only sex with a married woman, but vaginal intercourse. It was the sex that would make babies, and only that sex. And, in the 2003 Blanchflower decision, the Vermont Supreme Court held that same-sex activity there did not fall under the definition of adultery. It might be cheating, but it isn’t cheating against the contract or the state. What is even more interesting about this is that Vermont’s Civil Union statutes are basically the same as their marriage statutes. If the adultery statute is to apply to same-sex couples, it’s going to take some special kinds of cheating to make it adultery. [Cossman, linked above, has a discussion of the changing status of adultery in law and popular culture.]
Marriage and the family are constantly changing. “Traditional marriage” is a moving target. A century ago, the statement “I didn’t love her” wouldn’t have mattered in the least. Marriage was a different beastie then, far less organized around the intimate and emotional than it is today. These news moments provide us an opportunity–not to talk about the individual relationship, but instead the public issues surrounding it, like how the institution and its regulation are changing. Those are, I think, far more important.