Live in sin, break the law

Believe it or not, cohabitation is still illegal in five states. Why is the law so behind, and what's at stake?

Published July 1, 2012 7:00PM (EDT)

    (<a href=''>DJTaylor</a> via <a href=''>Shutterstock</a>)
(DJTaylor via Shutterstock)

For most people living in major American cities these days, the idea of an unmarried couple living together is as controversial as toasted bread. Since the 1990s, more than half of married couples in the United States live in sin before getting married. The percentage of people who disapproved of unmarried cohabitation has dropped from 86 percent in 1977 to 27 percent in 2007. In fact, for most of us, it seems far more suspicious to see a couple moving in together after they've gotten hitched than before. So how is it possible that living with your boyfriend or girlfriend is still against the law in Michigan and several Southern states?

As Elizabeth H. Pleck details in her fascinating new book, "Not Just Roommates: Cohabitation After the Sexual Revolution," unmarried cohabitation has had a rocky path toward cultural acceptance -- and, unbeknownst to many of us, is still held back by widespread retrograde legal policies. For much of the 20th century, couples were dragged to jail, had their social benefits revoked or lost custody of their children because they decided to live with the person they loved. And even as the civil rights, feminist and gay rights movements gradually won more rights for cohabitators, the law has continued to place an irrational importance on marriage, especially when it comes to Social Security. Pleck's book focuses on a series of key legal cases from the past half-century, but manages to make a convincing argument about the misguidedness of our country's continued, irrational love affair with the institution of marriage -- and why it's high time the law caught up with our hearts.

Salon spoke to Pleck over the phone about the importance of gay marriage, the New York Times' bad science and why America is still so obsessed with matrimony.

For someone like me who lives in New York, the idea that there is still a stigma or a legal case against unmarried people living together is really surprising.

There's the cultural stigma and the legal stigma, but it's the legal stigma that is more interesting to me. How come the law and our policies haven't caught up to the fact it's no big deal anymore? Cohabitation is still a crime in five states -- the four Southern states and Michigan. Yes, no one has been arrested for cohabitation in recent years but there are a few situations in which the fact that it's criminal can be used against people. There's the example of Michael Schiavo, Terri Schiavo's husband, who was denied guardianship of his wife because her parents went to court saying he broke the law of Florida because he was living with his girlfriend.

Like many other aspects of the sexual revolution, [the rise of cohabitation] appeared first and had its greatest effects on the two coasts and while it has affected the entire country, there are holdouts. You find lower rates of cohabitation and more opposition in the non-coastal and rural areas of the country.

How does this current state of affairs compare to the early 1960s and before?

The numbers of cohabitators are estimates, but to the extent they are accurate, the increase is absolutely off the charts. This is one of the huge trends of family and sexual history where you just find the arrow going almost straight up at an incredibly rapid rate. In the early '50s and '60s it was confined to cosmopolitan areas, bohemians, student neighborhoods, interracial couples and poor people because of poor people's flexible relationship status. What we've found since then is that it's become more common, more frequent, more acceptable, and spread in terms of regions, age profiles of the people and so forth. The majority of people, in the 70 percent range, now live together before they marry -- about 12-15 million people right now.

If these laws aren't being enforced, why should we care?

The criminal laws are just the tip of the iceberg. It's one of a variety of ways we don't honor the idea that every person is the same or that everybody can be just left alone as an adult to do what they want. The law makes a symbolic stand in favor of legal marriage and promoting marriage, and major entitlement programs -- both private and public -- are based on this idea, and on the benefits side there are many important points of social insurance, personal insurance, that have to do with being married. Cohabitators, for example, are two or three times more likely not to have health insurance than married people. A lot of social insurance goes to people who are legally married and their dependents. You find many people on the Internet discussing how they only got married to get health coverage, and many who are engaged don't understand their fiancés aren't covered by this. Same with Social Security benefits, they are based on marriage. This is about something I call the right to not have to marry.

It's funny, I'm Canadian and in a relationship with a man and I'm very conscious of the fact that, because of DOMA, I don't have that option to marry my boyfriend if I want to stay in the United States. It's something that I've had a lot of conversations with people about.

Yes, immigration policy favors legal marriage and punishes people who are not married. Cohabitation used to be thought of as immoral and one of the reasons for deportations was that people were engaged in immoral conduct.

Where does America's extraordinary love of marriage come from?

I'm extremely interested in the exceptional nature of the American nation. The idea of promoting marriage and marriage policy goes way back. America is a very religious nation. Cohabitation [is seen by many as] a religious sin and a sin against God whereas marriage is not sinful. People think it has to do with 19thcentury and Victorian ideas, but the truth is that there has been an active fight going on in various states on cohabitation since the 1970s, in Florida and Wisconsin and different states. The growth of the New Right in the late '60s and early '70s added on new layers of emotional maneuvering.

So how did our attitudes change?

The first big turning point was when the Supreme Court struck down laws against interracial cohabitation in 1964. Florida had a law saying a black man and a white women or a black woman and white man could not legally cohabit at nighttime. It was a major victory for cohabitation but they still said it's fine for states to have those laws; they just couldn't use race as a classification in making punishments. You can't punish black and white couples for cohabitation but it's still a crime on the books for a couple to live together.

The No. 1 most important change was the domestic partnership movement. The gay liberation movement fought for it especially in the '80s and '90s and cohabitators -- straight and gay -- ended up being the major beneficiaries of it. It's a huge shift because it took cohabitation from the shadowy world and made it be recognized. You can use it to receive benefits from private or public employers and you can register this status with a municipality and a state government to get favorable tax treatment and some benefits.

How important was pop culture's role in making Americans more accepting of cohabitation?

Cohabitation is actually very visible in popular music, because popular music is music of young people and young people were doing it. There's a Bon Jovi song about it and Joni Mitchell sang about it. It was on "Soul Train." A few movies by liberal filmmakers in the early '70s showed countercultural people living together. In the late '70s there were movies like "Rocky" and "Annie Hall" where it was taken for granted. TV is another story because in the late '60s or early '70s series would show an age gap where the parents were offended and the parents' values were eventually affirmed. It was only in the middle '70s with this Norman Lear TV show "All's Fair," that we got a positive view of cohabitation.

People that you quote in the book talk about the "marriage cure," the widespread belief among lawmakers that marriage is the solution to a variety of social ills. Does the marriage cure work?

So, for example, a judge will have a young couple coming to him. They're living together and the guy is unemployed or on probation and he'll say he won't punish them in any way if they get married. The state is coercing couples to get married with the idea that then you have cured the problem. Some people want to cure poverty by doing this, others want to cure crime, some immorality. But it turns out you can't cure these things in these ways. One major reason is you can't make people stay put once you marry them off; they often don't stay married.

The marriage promotion movement -- which consists of conservative social scientists, especially in the '90s, engaging in anti-poverty policy, welfare reform, abstinence education at schools -- has a very strong belief in this. The idea is that marriage is the ultimate poverty program. I quote extensively from the research in the book to show there's very little evidence that this works.

It's very interesting that marriage is seen in the U.S., unlike in Western Europe, as the magic bullet that's going to cure all kinds of ills. Why are their attitudes so different over there?

[In Western Europe, their ideas are] based on recognizing reality: "This is the way people are living, and we're not going to be able to change it very much so we should be able to recognize this is what's going on and treat people fairly given that." In the U.S. it's, "This is what's going on, and this is something we don't approve of, and maybe we can't really stop it but we should use our law and our policy to make a broad statement that we believe in marriage and stand behind it even if we know in our hearts that it might not be able to work."

It's an expression of these very schizophrenic elements of American culture. On one hand the U.S. celebrates individualism and on the other hand it has these moral policies that are very paternalistic.

That's a great way of putting it. I think there is a schizophrenia or a divide and some people tend to emphasize one and not the other but they're both there and tugging at each other -- I think that's called the culture war. It's a very important part of American history especially since the 1970s.

There was a recent, very popular New York Times article that argued that premarital cohabitation was bad news for marriages. What did you make of it?

I actually wrote a letter to the editor in response to this. First of all, that writer quoted social science as if it is the bible on this. The various statistics about cohabitation on the whole tend to show that engagement cohabitation is more likely to lead to a marriage that does not end in divorce. But all studies of cohabitation are studying a moving target; last year's findings are not this year's findings. But the reason the article is interesting to me is that it became a cultural phenomenon. It was the most emailed article of that week, I believe, as it seemed to be for all "what leads to divorce" articles.

Those kinds of articles actually go way back in American history, but they tap into tremendous anxiety and fear with the assumption that correlation is causation. I sense that isn't just because we have lots of children of divorce but because when the country is unstable and the economy is still recovering and our country's national greatness is not what it was, marriage and divorce become the symbol of the nation. They pick that anxiety and mirror it. My opinion is you're pretty much going to have to do what is best for you and what accords with your beliefs. Dear Abby had to change her views on cohabitation; she was advising people not to do it until the '90s, and then she capitulated and said it seems to be OK. I just don't think that it's very beneficial to engage in fear-mongering about cohabitation and fears of divorce.

I've never been terribly fond of the idea of marriage, and it's interesting to me that the gay community has increasingly moved from this idea of abolishing marriage to making marriage the central part of the movement. Why do you think that change occurred?

The No. 1 reason was the AIDS epidemic. It showed the fragility of life and the fragility of non-legally recognized relationships and the need for social benefits associated with legal marriage. On top of that, there was the lesbian baby boom and, in general, a new generation of gay liberationists who were not coming out of '60s critique of the nuclear family.

Cohabitation is not a social movement, but it gets a huge amount of energy from gay civil rights. So when gay civil rights moved in the direction of legal marriage the issue of non-marriage benefits seemed to take a back seat. There was the potential at one point that there would be a both-and strategy -- that people would be for the right to marry and the right to not have to marry -- but it hasn't been the case. Now it seems like all the energy goes into the right to marry.

For me the ideal future outcome is something close to the Scandinavian model in which many of our rights toward hospital visitation, inheritance, healthcare and so forth are disentangled from the institution of marriage. How realistic is this in the U.S.?

I don't think it's very realistic to expect that outcome. I have been absolutely surprised by the success of the legal same-sex marriage movement and that we are on the verge of declaring DOMA null and void. This is a positive movement in same-sex marriage but my calculation is same-sex marriage has to happen first then cohabitation after that, so it's kind of at the end of the train. I see the train is picking up and moving faster but that end point doesn't seem to be coming any time soon.

By Thomas Rogers

Thomas Rogers is Salon's former Arts Editor. He has written for the Globe & Mail, the Village Voice and other publications. He can be reached at @thomasmaxrogers.

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