'Exceptions to the General Rule': Unmarried Women and the 'Constitution of the Family'

Abstract

Throughout the nineteenth and early twentieth centuries, judges and lawmakers sought to erase the visibility of unmarried women. In the public law arena, for example, legislators conflated women and wives for the purpose of the franchise, arguing that women did not need the vote because their husbands voted for them. In the private law arena, doctrines intended to guarantee support to unmarried women functioned by constructing single women's legal identities in relation to marriage, thereby suggesting that marriage could provide for all women's material needs. This essay argues that understanding the history of single women's legal rights is critical to understanding the legal construction of marriage as the dominant institution for regulating all women's private relationships to men and public relationships to the state. Denying single women's existence allowed the law to ignore the potential threat they posed to a marriage-centric socio-legal order. Legal and political changes in the early decades of the twentieth century, however, made it increasingly difficult for the law to deny the existence of unmarried women. As single women gained social prominence, nonlegal writers in the 1930s and 1940s produced a new genre of prescriptive and descriptive literature for and about women living outside of marriage. Unlike earlier legal texts, these works embraced single women as a permanent and visible part of society. Like their legal predecessors, however, these modern authors sought to minimize the threat posed by single women to the institution of marriage, pointing to single women as proof of marriage's modern, consensual, democratic nature.