Hastings Journal on Gender and the Law


Mae Kuykendall


Themes in American family life contain contradictions between a public narrative of duration and a private narrative of renewal. This seeming conflict in values, in combination with a high divorce rate, might be thought to indicate that the marital vows are a culturally hollow ceremony. In fact, Americans' disposition in matters of family seemingly to waver between vows of duration and belief in renewal can be accounted for as well as given moral weight by the thinking and influence of Ralph Waldo Emerson. Dismissed at times as an idealist, a proponent of unthinking American individualism, and an irresponsible wordsmith, Emerson is a source of a morally perfectionist aspiration embedded in the marriage vows. Philosopher and Emerson expert Stanley Cavell's analysis of the "remarriage comedies" of the 1930s, which he argues are consciously influenced by Emersonian thinking, posits the possibility of renewed consent as an ever present test of the marriage vows. "Emerson family values" describe and explain the moral purpose in marriage as a public act in a society based on political consent and individual autonomy. Moral engagement, rather than permanence (the test offered by cultural traditionalists), is the defining feature of marital success. Reformist suggestions to reinforce permanence, such as "covenant marriage," and resistance to change in marital composition, dilute the shared public meaning of vows of duration and sever the critical element of marriage - renewability - both from the pledge of moral engagement and from its role as a rite of citizenship. The Emersonian influence, famously interpreted as arising from his own life struggle to locate the balance between "freedom and fate," confers on American marital practice, law and narratives, even with manifold flaws and errors of judgment, the honorable purpose of serious moral engagement.