Gay marriage debate centers on history vs. change

Posted on Fri, Feb. 17, 2006
Gay marriage debate centers on history vs. change
By Stephen Henderson
Knight Ridder Newspapers

TRENTON, N.J. - As the New Jersey Supreme Court considered last week whether to make the state the second in the nation to legalize gay marriage, the arguments in the courtroom were framed by a debate over history and change.

Opponents say same-sex marriage is - among other things - a historical contradiction. Marriage, they say, has always been between a man and a woman and the laws are written to reflect that.

That argument echoes reasoning that has been proffered time and again to defend such outmoded laws as those that defined wives as the property of their husbands, or that prohibited divorce, or even prevented epileptics and other disabled people from marrying.

All of those laws eventually fell and today would be considered preposterous, despite the strong weight of history and culture in their favor when they were challenged.

One of the key questions for the justices in New Jersey, and for courts all over the nation, is whether the long traditions surrounding marriage trump demands to eliminate eons-old gender restrictions in the name of equality.

"I think people who talk about history as a reason to deny gay marriage just don't really know what the history is," said Jon Davidson, legal director for Lambda Legal Defense Fund, the advocacy group that represents the gay couples seeking marriage licenses in New Jersey.

"People need to recognize that throughout our history, there were all sorts of people not allowed to marry."

But Katherine Spaht, a law professor at Louisiana State University and an expert on family law, said permitting gay marriage would constitute a change more profound than any other in history.

"Most of the changes, historically, have been at the edges of the concept of marriage, not at its core," Spaht said. "We've changed lots of things about the relationship between married people, but not as much about the fundamental idea of what marriage is."

For their part, at least four of the seven justices in New Jersey expressed serious doubts that history was a compelling reason to deny marriage rights to gays.

Chief Justice Deborah Poritz bluntly challenged the argument.

"It's a historical fact that marriage has been between a man and a woman, but it's also a historical fact that women were property and that women couldn't accuse their husbands of rape," Poritz said. "Why should we just defer to the historical basis?"

New Jersey isn't relying explicitly on history in its arguments before the court, instead insisting that legislatures, rather than judges, ought to decide the issue. But Assistant Attorney General Patrick DeAlmeida said the state believes that protecting the "institution of marriage" is important.

Spaht said the problem with arguments that place gay marriage in a category with other changes is that they ignore the social and culture context for marriage, something she said is key to its legal existence.

"Marriage isn't a legally created institution. You're dealing with a social institution that pre-existed law," she said. "So as a consequence you have to be respectful of the purpose of this institution, which runs across generations and across cultures."

Spaht said marriage has a clear purpose in a social context.

"It's about a man and a woman, because it's about children, procreation," she said. "Even the Greeks, who were very accepting about homosexuality, never confused it with marriage."

But it's also true that under civil law in America, marriage isn't bound solely by social constructs and has instead been held to legal and constitutional standards that have evolved dramatically over time. Sometimes, those evolutions have produced profound changes.

In many states, for example, women for years had their legal identities washed away when they married. They couldn't own property, enter into contracts, sue their spouses or even earn money that belonged to them. They became legal appendages to their husbands.

Early challenges to these types of laws often met with stern lectures about the historical canons of marriage.

When Myra Blackwell, a pioneering female attorney in Illinois, first sued in 1873 to gain a law license, the state's Supreme Court was terse and unyielding. No woman could properly perform the duties of a lawyer, the court wrote, in part because of the special role that women fulfill in marital relationships.

"The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator," the court wrote.

Modern advancements aside, the court said: "The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband."

Yet over time, those arguments were undercut by the equality that women gained in other areas of law: voting rights, property rights, laws against employment discrimination. From the legal perspective of women, today's marriages, which treat them as equals, bear little resemblance to the subservient contracts they were just a few generations ago.

Marriage laws also have been expanded to include people who were historically left out.

Slaves, for example, couldn't marry. Nor could indentured servants in many states. Inter-faith marriages were prohibited or penalized in some places.

Even post-slavery, people of different races weren't permitted to marry or were punished (sometimes criminally) when they did.

When California's Supreme Court became the first to strike down a ban on interracial marriage in 1948, a dissenting opinion relied heavily on history.

"The prohibition of miscegenetic marriage is not a recent innovation in this state, nor is such a law by any means unique among the states," the dissenting judge wrote. "The provisions of the law here attacked have remained unchallenged for nearly one hundred years and have been unchanged so far as the marriage of whites with Negroes is concerned."

Bans on interracial marriage weren't completely eradicated until 1967, when the U.S. Supreme Court declared them unconstitutional.

Others have historically been locked out of marriage for similar reasons. Epileptics were denied marriage licenses in many states out of fear that they would pass their disability on to children. Those laws weren't wiped out completely until 1976.

"The point is that the history of marriage is a history of constant change," Davidson of Lambda Legal said. "I think it's hard to argue that this change is somehow fundamentally different from the others."