(no subject)
Same-sex marriage has been in the news lately, good and bad, and I’ve been thinking about it a lot. Like the President, my thinking has been evolving on the matter. What you hear from antis a lot is that “This would change the definition of marriage!” My first reaction is “Of course not! In fact, it’s strengthening the definition of marriage!” But as I think about it more, I have come to realize they are right. We are changing the definition of marriage.
But here’s the thing: We’ve been changing that definition for a long, long time.
A few thousand years ago, marriage was a property contract between two men, the groom and the owner of the bride, to convey property rights in the bride from one man to the other. A man could own as many wives as he could afford. A few hundred years ago, marriage for most people was more like a political treaty, establishing a relationship between two families. From royalty cementing alliances, down to farmers planning a wedding to unite two adjacent farms, marriages and the laws governing them were largely about conserving capital. Even if there was no wealth, marriage was very much the joining of two families for the benefit of the next generation, and the current bride and groom were just the means by which this was accomplished. (The cry you sometimes hear today “But I’m marrying him, not his family!” would have been incomprehensible a few centuries back.)
Today, the concept of marriage is that it is a contract between two people who love each other and want to build a life together. Our society believes that supporting those relationships benefits society as a whole and so we have created laws to recognize and support them - things like protecting the right of spouses privilege (spouses can’t testify against each other), rights to make decisions for a spouse they are not able to make for themselves, inheritance rights, and a thousand others. This is the point of view I was coming from originally - if marriage is all about society supporting the commitment of two people in love, marriage equality strengthens that, not changes it. In that aspect, laws permitting same-sex marriage are not changing the definition of marriage; they are merely validating a change that took place a long time ago.
But there’s more to it than that. We are changing the form of marriage to include people who, for most of history, could not marry at all. (Yes, there have been some exceptions here and there, but they were clearly exceptions, not the mainstream.) And yes, this could be viewed as a radical change in marriage. But it’s not the first. Over the last 60 - 75 years we have made a lot of changes in the traditional concept of marriage, including 3 very radical, earth-shaking changes:
First, No Fault Divorce. This has been around in some states for longer, but it really started spreading in the 60s. Through history, the availability of divorce has waxed and waned, but it has always been based on whether the government thought continuing your marriage was of value to society. Here in the US, at-fault divorce was very much about giving relief to the innocent and punishing the evil-doer. There was a list of transgressions (primarily adultery) that would justify ending a marriage in the governments eyes. If you were the transgressor, you couldn't initiate the divorce, and if both had transgressed, you were stuck for life. No innocent party, no divorce. And the innocent party definitely had the upper hand when it came to division of property. The guilty party was expected to pay handsomely for their crime. Today, marriage is recognized as a state that two people chose to be in, and if one of them wants out, then it’s all over. The decision is up to the individuals, the government gets involved only when they can’t agree, to make sure things are done equitably and fairly.
Secondly, recognition of marriage as a “fundamental right”. In the past, the government has reserved the right to determine who was and wasn’t permitted to marry, and to whom. The most notable case where this was struck down was Loving v Virginia in 1967, which struck down miscegenation laws as interfering with “the fundamental freedom” of marriage. But there was also Zablocki v Redhail in 1978 that struck down a Wisconsin law that required people paying court ordered child support to get permission from the court to remarry. They had to prove that they were up to date on payments and that the new marriage didn’t pose a financial threat to existing children. The Supreme Court struck this down because marriage was “a fundamental right” triggering “rigorous scrutiny”, and Wisconsin’s justification was not valid under the Equal Protection Clause. And by Turner v Safley in 1987 the Supremes ruled that a Missouri law prohibiting inmates from marrying absent a compelling reason, didn’t even require strict scrutiny, it failed to meet the lower standard of reasonableness. Other laws that prohibited people with certain diseases from marrying have also been struck down or repealed. So, once again, the matter is left up to the individuals involved. As long as they are able to consent, it is their choice. The only government restrictions left, other than the contested gender requirements, are ability of both parties to consent (mentally and chronologically), the requirement that you are only in one marriage at a time, and some restrictions on consanguinity (how closely related). You want to marry someone on Death Row you will never be able to have physical contact with, someone with AIDS, someone from another race, or a divorced person? Go to it, it’s no-one else’s business (as long as they are legally a different gender).
Last and most radical of all, Marital Rape. This is big. In traditional marriage, throughout history, when a woman said “I do” (or her father said it on her behalf), she forever lost the right to say “I won’t”. Beginning in the 60s through the 70s, eventually all states passed laws giving a woman the right to withhold consent to sex, even with her husband. This was the last and biggest piece of dismantling the concept that marriage made a man and woman legally one person, and that person was the husband. The laws now recognize that, just because you marry, you don’t give up any of your legal rights as an individual. You gain new rights and responsiblities as a couple, but you still have your original individual rights.
So, long winded, but here’s the point. The question is not, “Is the definition of marriage going to change?”, that’s a given. It’s been changing for thousands of years and will continue to change for thousands more, however this issue is decided. Viewed from one angle, this is no real change, and although it is a radical change viewed from another angle, no more so than other changes made in the last few decades that are now commonly accepted. The real question is, “How are we going to change marriage?” Are we going to follow the trend of giving more and more freedom to individuals to make their own choices, with minimal government involvement, or are we going to reverse that into a more restrictive model where the government has the ability to make choices for you in your most intimate relationships? Because, make no mistake, people are going to continue to fall in love, commit to each other, and form families (with or without children), whether the government recognizes those relationships legally or not. That’s just what people do and have always done since we first became people. Are we going to let the government decide which families are valuable and which can be thrown away, or are we going to stay true to the long held principle that strong families make for a strong society and extend protection to ALL families?
But here’s the thing: We’ve been changing that definition for a long, long time.
A few thousand years ago, marriage was a property contract between two men, the groom and the owner of the bride, to convey property rights in the bride from one man to the other. A man could own as many wives as he could afford. A few hundred years ago, marriage for most people was more like a political treaty, establishing a relationship between two families. From royalty cementing alliances, down to farmers planning a wedding to unite two adjacent farms, marriages and the laws governing them were largely about conserving capital. Even if there was no wealth, marriage was very much the joining of two families for the benefit of the next generation, and the current bride and groom were just the means by which this was accomplished. (The cry you sometimes hear today “But I’m marrying him, not his family!” would have been incomprehensible a few centuries back.)
Today, the concept of marriage is that it is a contract between two people who love each other and want to build a life together. Our society believes that supporting those relationships benefits society as a whole and so we have created laws to recognize and support them - things like protecting the right of spouses privilege (spouses can’t testify against each other), rights to make decisions for a spouse they are not able to make for themselves, inheritance rights, and a thousand others. This is the point of view I was coming from originally - if marriage is all about society supporting the commitment of two people in love, marriage equality strengthens that, not changes it. In that aspect, laws permitting same-sex marriage are not changing the definition of marriage; they are merely validating a change that took place a long time ago.
But there’s more to it than that. We are changing the form of marriage to include people who, for most of history, could not marry at all. (Yes, there have been some exceptions here and there, but they were clearly exceptions, not the mainstream.) And yes, this could be viewed as a radical change in marriage. But it’s not the first. Over the last 60 - 75 years we have made a lot of changes in the traditional concept of marriage, including 3 very radical, earth-shaking changes:
First, No Fault Divorce. This has been around in some states for longer, but it really started spreading in the 60s. Through history, the availability of divorce has waxed and waned, but it has always been based on whether the government thought continuing your marriage was of value to society. Here in the US, at-fault divorce was very much about giving relief to the innocent and punishing the evil-doer. There was a list of transgressions (primarily adultery) that would justify ending a marriage in the governments eyes. If you were the transgressor, you couldn't initiate the divorce, and if both had transgressed, you were stuck for life. No innocent party, no divorce. And the innocent party definitely had the upper hand when it came to division of property. The guilty party was expected to pay handsomely for their crime. Today, marriage is recognized as a state that two people chose to be in, and if one of them wants out, then it’s all over. The decision is up to the individuals, the government gets involved only when they can’t agree, to make sure things are done equitably and fairly.
Secondly, recognition of marriage as a “fundamental right”. In the past, the government has reserved the right to determine who was and wasn’t permitted to marry, and to whom. The most notable case where this was struck down was Loving v Virginia in 1967, which struck down miscegenation laws as interfering with “the fundamental freedom” of marriage. But there was also Zablocki v Redhail in 1978 that struck down a Wisconsin law that required people paying court ordered child support to get permission from the court to remarry. They had to prove that they were up to date on payments and that the new marriage didn’t pose a financial threat to existing children. The Supreme Court struck this down because marriage was “a fundamental right” triggering “rigorous scrutiny”, and Wisconsin’s justification was not valid under the Equal Protection Clause. And by Turner v Safley in 1987 the Supremes ruled that a Missouri law prohibiting inmates from marrying absent a compelling reason, didn’t even require strict scrutiny, it failed to meet the lower standard of reasonableness. Other laws that prohibited people with certain diseases from marrying have also been struck down or repealed. So, once again, the matter is left up to the individuals involved. As long as they are able to consent, it is their choice. The only government restrictions left, other than the contested gender requirements, are ability of both parties to consent (mentally and chronologically), the requirement that you are only in one marriage at a time, and some restrictions on consanguinity (how closely related). You want to marry someone on Death Row you will never be able to have physical contact with, someone with AIDS, someone from another race, or a divorced person? Go to it, it’s no-one else’s business (as long as they are legally a different gender).
Last and most radical of all, Marital Rape. This is big. In traditional marriage, throughout history, when a woman said “I do” (or her father said it on her behalf), she forever lost the right to say “I won’t”. Beginning in the 60s through the 70s, eventually all states passed laws giving a woman the right to withhold consent to sex, even with her husband. This was the last and biggest piece of dismantling the concept that marriage made a man and woman legally one person, and that person was the husband. The laws now recognize that, just because you marry, you don’t give up any of your legal rights as an individual. You gain new rights and responsiblities as a couple, but you still have your original individual rights.
So, long winded, but here’s the point. The question is not, “Is the definition of marriage going to change?”, that’s a given. It’s been changing for thousands of years and will continue to change for thousands more, however this issue is decided. Viewed from one angle, this is no real change, and although it is a radical change viewed from another angle, no more so than other changes made in the last few decades that are now commonly accepted. The real question is, “How are we going to change marriage?” Are we going to follow the trend of giving more and more freedom to individuals to make their own choices, with minimal government involvement, or are we going to reverse that into a more restrictive model where the government has the ability to make choices for you in your most intimate relationships? Because, make no mistake, people are going to continue to fall in love, commit to each other, and form families (with or without children), whether the government recognizes those relationships legally or not. That’s just what people do and have always done since we first became people. Are we going to let the government decide which families are valuable and which can be thrown away, or are we going to stay true to the long held principle that strong families make for a strong society and extend protection to ALL families?