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Gay marriage debate centers on history vs. change

 
 
Reply Sun 19 Feb, 2006 11:01 am
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."
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Lash
 
  1  
Reply Sun 19 Feb, 2006 11:07 am
Just the fact that "something has always been this way" is not a very sturdy legal argument.... or moral one.
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Sun 19 Feb, 2006 11:20 am
Lash
Lash wrote:
Just the fact that "something has always been this way" is not a very sturdy legal argument.... or moral one.


Agree - you are so smart.

BBB
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Lash
 
  1  
Reply Sun 19 Feb, 2006 11:27 am
I turn a dingy grey in the shadow of your brilliance. Laughing

Someone has got to say the obvious. It's apparent it isn't universally obvious.
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JPB
 
  1  
Reply Sun 19 Feb, 2006 12:07 pm
Excellent article, BBB. Thanks for posting it. The states that allow same-sex marriage will begin to set the stage for others to follow. It's a long, slow path but one that I think will ultimately result in change. The states that passed Constitutional amendments in Nov 2004 (and Texas more recently) banning same-sex marriage will hopefully find themselves isolated. With time and social pressure they might be forced to rethink their narrow and archaic views. I'll be watching this one closely.
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BumbleBeeBoogie
 
  1  
Reply Sun 19 Feb, 2006 12:27 pm
JB
JB, what is sad is that political parties use the gay marriage as a hot-button political wedge issue to inflame their conservative political base to help them win elections.

How refreshing it would be to do the right thing to benefit the Common Good in ending discrimination against a class of people.

BBB
0 Replies
 
Arella Mae
 
  0  
Reply Sun 19 Feb, 2006 12:46 pm
Just because someone believes that gay marriage is not right, it does not mean they discriminate against people. It just means that they believe homosexuality is wrong. Discriminate used to have a completely different connotatin than it does now. Seems even the definition of words change with the times. It used to have a much deeper more clearly defined definition. Now, it's if you don't agree with what's going on you are discriminating against it. If this is true, then those that approve of same sex marriage would be guilty of discriminating against those that don't.

Whether same sex marriage is moral or not is something I believe everyone is going to have to decide for themselves. It all comes down to what is between them and God.

However, even if a person disagrees with same sex marriage and would vote against it, it does not mean they are discriminating against a class of people. It just means that it goes against their personal beliefs and principles. Thankfully, I am not going to get the opportunity to vote on this issue. I would abstain if I did get the opportunity.

I have two lesbian friends and I love them dearly. I can still care for a person and not agree with what they do in their lives. I don't think anyone agrees 100% with 100% of what any of us do, think, or feel. When we carry our disagreements to heap abuse upon someone else then we are definitely in the wrong. But I don't think just believing something is wrong can be in the same category as what discrimination used to mean.
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Sturgis
 
  1  
Reply Sun 19 Feb, 2006 03:32 pm
Re: JB
BumbleBeeBoogie wrote:
JB, what is sad is that political parties use the gay marriage as a hot-button political wedge issue to inflame their conservative political base to help them win elections.

How refreshing it would be to do the right thing to benefit the Common Good in ending discrimination against a class of people.BBB


Class of people? For crying out loud this is exactly WHY there is so much resistance across the nation towards gay marriage. When you decide that gays are a class of people you are negating the people themselves. I happen to be a homosexual man, I do not however generalize my being as part of the gay class. That is just insulting BBB and quite frankly I am more than a little surprised at you since you are usually much more open minded.
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Arella Mae
 
  0  
Reply Sun 19 Feb, 2006 04:06 pm
Sturgis wrote:
BumbleBeeBoogie wrote:
JB, what is sad is that political parties use the gay marriage as a hot-button political wedge issue to inflame their conservative political base to help them win elections.

How refreshing it would be to do the right thing to benefit the Common Good in ending discrimination against a class of people.BBB


Class of people? For crying out loud this is exactly WHY there is so much resistance across the nation towards gay marriage. When you decide that gays are a class of people you are negating the people themselves. I happen to be a homosexual man, I do not however generalize my being as part of the gay class. That is just insulting BBB and quite frankly I am more than a little surprised at you since you are usually much more open minded.


Sturgis,

I have to tell you, I am so glad that you posted that. I have been wondering for quite awhile now if things like "a class of people" did offend or effect homosexuals such as it seems it has you.


In defense of BBB though, I don't believe that she ever would have meant that in a derogatory way. Perhaps her choice of words wasn't the best, but I have always found her to be very open-minded concerning the rights of others.

Do you think it's possible that sometimes in our passion and zeal in championing something we can lose site of what is really important and then things like this happen? It seems that sometimes even when people have the best of intentions they still do things that offend.

So, if it makes you feel any better at all, I don't think of you as a different class of people. I think of you as a pretty intelligent guy that I have had a few conversations with. I don't think you are really any different than the rest of the human beings on this earth.
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Sturgis
 
  1  
Reply Sun 19 Feb, 2006 04:08 pm
Thank you Momma Angel.
0 Replies
 
Lash
 
  1  
Reply Sun 19 Feb, 2006 04:18 pm
She may fumble her words, but BBB would never stand by, while others assault individual rights.

If the one who paid you lip service doesn't really think you are really any different than the rest of the human beings on this earth, why does she deny basic human rights that affect your life?

I know my mode of speaking doesn't engender affection, but I can't bear you to allow a word to let a snake slither up beside you, while a real friend is cast away from you.
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2PacksAday
 
  0  
Reply Sun 19 Feb, 2006 05:18 pm
I wouldn't be surprised to see the term "Gay-American" used at some point....might already be in use in certain circles. Hopefully not though, as hyphenated names do nothing but separate us more.
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Arella Mae
 
  0  
Reply Sun 19 Feb, 2006 06:10 pm
Lash,

Honey, it's ok, if you mean me then say me. You haven't a clue as to how I feel do you? None whatsoever. You have no clue as to what I am about and I doubt you ever will.

Sturgis, on the otherhand does seem to understand where I am coming from. We have discussed this before and he and I seem to be okay with both of our views and we don't treat each other any differently because our views differ. Now, it would seem to me that since he actually could be affected directly (if he wanted to marry someone of his sex) by this issue, that his opinion would carry a bit more weight, wouldn't you? I mean, that is what this is all about, right? Someone's rights? Not your rights, but someone else's? You don't think what he thinks about this is important?

I have differing views and so do you and so does everyone else in this world. I don't get to vote on this, Lash so how in the world am I possibly affecting anyone's rights in this issue? Uh, just because I state my opinion? Rolling Eyes
0 Replies
 
Lash
 
  1  
Reply Sun 19 Feb, 2006 06:15 pm
2PacksAday wrote:
I wouldn't be surprised to see the term "Gay-American" used at some point....might already be in use in certain circles. Hopefully not though, as hyphenated names do nothing but separate us more.

I agree.

Just simply American, with all associated rights would be fine with me.
0 Replies
 
Arella Mae
 
  0  
Reply Sun 19 Feb, 2006 06:27 pm
And one of those rights would be freedom of speech, where you can express your views about whatever.

It's just too bad that it has gotten down to people being angry because others have differing views. It's too bad that if your views differ you are then labeled. So tell me, where does one person's rights begin and another's is left out. Are we all to decide what should be right for everyone else? Hmmm. Wait a minute! Isn't that what so many have a problem with religion about? Trying to impose religious views on others? So, does that mean those that don't hold those religious views can then impose those views on others? Seems to be a double standard in play if you ask me. Oh, it's ok as long as you agree but if you don't......well.....

There are so many issues in this world. We all pick the ones we choose to address, lobby for or against, etc. Just because a person does not choose the same issue as another to champion that does not mean there is anything wrong with that person's views. I always thought that our voting system did a pretty good check and balance in things like this.

So, is that changing now? If one speaks their mind and beliefs (whatever they are) one should now expect others to become angry and possibily verbally or physically abusive because they don't agree? And people say there is no decline in society?

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Lash
 
  1  
Reply Sun 19 Feb, 2006 07:16 pm
From BBB's article---

"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."
________________________
Bears repeating.
0 Replies
 
JPB
 
  1  
Reply Sun 19 Feb, 2006 08:26 pm
Momma, why do you keep making this about you? This isn't about you, except in relation to your lack of ability to see your stand for what it is. A direct affront to those individuals who would choose to live their lives in full legal accommodation of the right to marry the person they love. If a particular gay couple that you know chooses not to marry then that is just fabulous. If Sturgis or other gay individuals would not choose to marry then that is fabulous for him and them as well. ON THE OTHER HAND, there are many, many gay couples who would like to marry and who the hell are you to determine that THOSE individuals should not have full and equal protection under the law?
0 Replies
 
Arella Mae
 
  0  
Reply Sun 19 Feb, 2006 09:01 pm
Actually, J_B, I don't feel this is about me. This is about the people that are for same sex marriage and the ones that are not for same sex marriage.

If you will notice, I actually defended something someone else said even though they don't have the same views I do. I did that because it was the right thing to do. It doesn't matter to me whether a person agrees with the issue or not. It doesn't matter to me whether a person is gay or not. I don't care if they are purple with polka dots. They are people.

It was implied by someone that I was a snake...... and I replied with how I felt about it. So, if that's what you mean about making it about me I can see that. Frankly, J_B, I get a bit tired of people ragging on anyone just because they don't agree with them.

My lack of ability to see my stand for what it is? I know exactly what my stand is and why it is. Would you care to tell me how my stand is a direct affront, J_B? Just who am I affronting? I am having a discussion on the internet with a bunch of people. Not all of us agree and I think that's just part of life where others seem to think it is some kind of disease or something. I guess everyone just keeps missing the part about where I DON'T get to determine anything in this issue?

You know, I adjusted my view because others showed me how I perhaps would be keeping someone's rights from them if I did vote against this. But, no! That's not good enough. And I highly doubt it will be good enough until I completely agree with same sex marriage and homosexuality.

Now, I don't want this to be about me. It's about an issue I was having conflicts with and got input from others and changed my views somewhat. I still have a lot of questions about this and I try to ask questions to find answers. I answer the posts as they come.
0 Replies
 
mesquite
 
  1  
Reply Sun 19 Feb, 2006 10:41 pm
Re: JB
Sturgis wrote:
BumbleBeeBoogie wrote:
JB, what is sad is that political parties use the gay marriage as a hot-button political wedge issue to inflame their conservative political base to help them win elections.

How refreshing it would be to do the right thing to benefit the Common Good in ending discrimination against a class of people.BBB


Class of people? For crying out loud this is exactly WHY there is so much resistance across the nation towards gay marriage. When you decide that gays are a class of people you are negating the people themselves. I happen to be a homosexual man, I do not however generalize my being as part of the gay class. That is just insulting BBB and quite frankly I am more than a little surprised at you since you are usually much more open minded.


Sturgis,
The use of class in this instance is only in the context of a discriminated class. I for instance am a Viet Nam era veteran which put me in a protected class under federal guidlines.
0 Replies
 
Sturgis
 
  1  
Reply Mon 20 Feb, 2006 06:10 am
Re: JB
mesquite wrote:

Sturgis,
The use of class in this instance is only in the context of a discriminated class. I for instance am a Viet Nam era veteran which put me in a protected class under federal guidlines.



Perhaps this was BBB's approach, all I can say is that my initial view of it and the way in which it was written made it seem to be something of an affront. It is my hope that BBB will respond soon and indicate her choice and meaning of words. It is doubtful that she meant anything hurtful from it, however, it did indeed hurt me. (yes, as strange as it may seem I do have feelings)
0 Replies
 
 

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