4
   

Gay marriage debate centers on history vs. change

 
 
Arella Mae
 
  1  
Reply Mon 6 Mar, 2006 06:03 pm
Debra Law,

If you tell someone they are breaking the law, are you condemning them? - No, you are just pointing out to them that they are doing something that is against the law. If I ONLY tell someone that I do not think homosexuality is ok in God's eyes then I am only doing the same thing. I don't remind them every single day that I see them that they are doing something wrong. We rarely discuss it. Anymore, when we do discuss it it's about these arguments on this board and they crack up.

I do not treat them any differently than anyone else. If I truly did condemn them I would not have them in my home. I would not have them as my friends. I would cut them from my lives. I do not do that. I don't do that because they are God's children and I am going to show them that I love them even if I don't agree with how they do things.

They do the same with me. They don't agree with me but they love me right back. So, as long as you and others just THINK that my THINKING someone may be doing something wrong in God's eyes is me being a bigot, then have at it.

God knows in my heart I don't hate anyone. He knows right now I'm pretty close to not caring about one particular person but I'm dealing with it. He knows that I believe we all have the right to our religion and how we see it and He knows that I am willing to suffer whatever consequences I will suffer for my wrongs. But, I will not, willingly, just change my opinion because other human beings think I am wrong. If someone, anyone could show me where God says homosexuality is ok, then I could adjust my thinking. But no one, not one person has offered me anything that makes me believe the Bible is wrong about it.

Now, I'm tired of all this. I'm tired of people getting angry at me because I believe the way I do.
0 Replies
 
Lash
 
  1  
Reply Mon 6 Mar, 2006 08:28 pm
J_B wrote:
I think Lash might be disappointed by being left off the list of offenders.

I would have been proud to have my name among those. <nods>


J_B, soz, Debra Law, Setanta, seaglass~

Much respect and admiration.

~~~~~~~~~~~~~~~~~~
0 Replies
 
Arella Mae
 
  1  
Reply Mon 6 Mar, 2006 08:41 pm
Just for clarification, I did not mean that list as an offensive remark. I meant it as some of those that disagree with my views. Lash, yes, in that respect you could be added to that list. But, no offense is meant to any one of you.
0 Replies
 
Setanta
 
  1  
Reply Tue 7 Mar, 2006 08:48 am
Typical MOAN horseshit . . . i have not at any time stated that you have stolen or killed for Jesus . . . don't add to the tally of your lies, or i may start calling you the Mother of Lies . . .
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Tue 7 Mar, 2006 09:14 am
BBB
Once again, Momma Angel has used her sabotage and diversion skills to redirect the topic of this thread assisted by those who endulge her compulsive need for attention. The original post is reposted here to try to bring the discussion back to the topic of history versus custom. It's not about Momma Angel nor her's beliefs we've been told about ad nauseum.---BBB

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."
0 Replies
 
dyslexia
 
  1  
Reply Tue 7 Mar, 2006 09:31 am
So anyway, I was chatting up MA the other day about how many snakes could wriggle in the hands of a devout believer, I never did get an answer. I guess I should specify copperheads over sidewinders.
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Tue 7 Mar, 2006 10:10 am
Dys
dyslexia wrote:
So anyway, I was chatting up MA the other day about how many snakes could wriggle in the hands of a devout believer, I never did get an answer. I guess I should specify copperheads over sidewinders.


Ok. I will play the game with another diverter. My snake of choice would be the Lesser Antillean Threadsnake,the world's smallest snake. It lives on islands in the West Indies, in the Caribbean ocean. It's so small that if you took the lead out of a pencil, it could crawl through!

The Caribbean is also home to the world's smallest reptile, a gecko lizard that can fit on a dime! Islands are good breeding grounds for these small creatures, because they don't have any natural predators in the wild.

BBB
0 Replies
 
Arella Mae
 
  1  
Reply Tue 7 Mar, 2006 10:42 am
dys,

You aren't supposed to tempt God. You pick up snakes, you get bit. I hate snakes.

Setanta,

You didn't say I HAVE killed or stolen for Jesus. You said I WOULD.

The same sex marriage issue is starting to be discussed here a bit more in Louisiana. There was a show on last night, a PB station, and the general concensus seems to be that it probably will not pass in Louisiana if (and/or when) it becomes an issue.

The state seems to be divided at about 1/3 for and 2/3 against.
0 Replies
 
seaglass
 
  1  
Reply Tue 7 Mar, 2006 10:57 am
BBB have you thought about contacting the moderator or whawever powers that be and have them pull the thread and put an end to this inane stupidity??????
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Tue 7 Mar, 2006 11:33 am
seaglass
seaglass wrote:
BBB have you thought about contacting the moderator or whawever powers that be and have them pull the thread and put an end to this inane stupidity??????


Nope! I never ask the Moderators for anything unless I feel personally threatened. I've only made such a request once.

I support freedom of speech. Those who abuse such freedoms should not be indulged by others to continue their abuse.

bbb
0 Replies
 
sozobe
 
  1  
Reply Tue 7 Mar, 2006 11:40 am
Now it's abuse of freedom of speech?

Good grief.
0 Replies
 
seaglass
 
  1  
Reply Tue 7 Mar, 2006 12:34 pm
You know something BBB, I think you and Momma Angel are both suffering from old-timers disease.

Can't remember which foot you're standing on from one minute to the next. Now that's an opinion since I am allowed freedom of ****now dernit I forgot what I was saying*****
0 Replies
 
Thomas
 
  1  
Reply Tue 7 Mar, 2006 04:20 pm
sozobe wrote:
Now it's abuse of freedom of speech?

Good grief.

Young lady, you know the answer to that very well, don't you. Don't let me catch you abusing your freedom of asking questions again.

As for the article BBB reposted, I agree that the history of marriage is a history of change, and that the time is ripe for gay marriage. I would be happy to see American states change their marriage laws accordingly, and would encourage liberal Americans who persuade their traditionalist compatriots that change is a good idea here.

But I do emphatically not believe in courts and their reinterpretation of existing law as an instrument of that change. BBB's article describes the reason why in its episode about women becoming lawyers, and the court's opinion about the matter. The court's reasoning, which sounds so profoundly pompous and silly to us today, teaches a lesson that still applies today: Behind their intimidating eloquence, judges are just people like you and me. Their insights on which social change is appropriate are no deeper, no well informed than those of ordinary Americans. They are just as prejudiced and full of themselves as regular people. You can't rely on them support the right side of social change. I therefore oppose as authoritarian and misguided the reflexes of many American liberals, who hope that courts will interpret their favorite social changes into existing laws. In the long run, I expect this approach to do more harm than good.
0 Replies
 
Debra Law
 
  1  
Reply Tue 7 Mar, 2006 07:06 pm
It is a ridiculous idea--totally without merit--that states should not be constitutionally required to treat homosexuals as equal members of society because doing so would effectuate court-imposed "social change."

Upholding individual rights under the due process and equal protection clauses of the constitution is the court's duty.

No individual or class of persons should be deprived of due process or equal protection under the law simply because some people don't like the "social change" that is effectuated when they are constitutionally prohibited from imposing their discriminatory views on others via the application of our laws.
0 Replies
 
Thomas
 
  1  
Reply Wed 8 Mar, 2006 12:30 am
Debra_Law wrote:
It is a ridiculous idea--totally without merit--that states should not be constitutionally required to treat homosexuals as equal members of society because doing so would effectuate court-imposed "social change."

Upholding individual rights under the due process and equal protection clauses of the constitution is the court's duty.

The problem is that there is no consensus among jurists whether gays have a right to marry under the equal protection clauses of the American constitutions, state and federal. They are similarly conflicted about the issue as the rest of American society; over time, the size of the factions has changed similarly to society at large. The 14th Amendment was enacted 140 years ago; for 110 of those years, there was consensus, or near-consensus, among jurists that states didn't violate the 14th amendment by constraining marriage to couples of the opposite sex. Hence, when they discover a right to gay marriage in the equal protection clause now, that's an after-the-fact rationalization of a cultural change in the legal community.

If the 14th Amendment itself compels your interpretation, America's legal community has been dragging its feet for 110 out of the last 140 years; presumably it ran against its cultural biases to stand up for a fundamental right. On the other hand, if the 14th Amendment does not compel your interpretation, part of the legal community is manipulating the law now -- presumably to change society in ways jurists desire. Either way, American jurists have been imposing its cultural values under the color of the law. Why should American non-jurists accept such an imposition?

I have no problem with gay marriage. In Germany we have civil unions that come fairly close to it, and I like that. Massachussets has full-fledged marriage, and I like that. The only thing I don't like is when social change-- including the change in Massachusetts that I like -- is in practice driven by the cultural attitudes of the legal community. as opposed to the culture of society as a whole.
0 Replies
 
Debra Law
 
  1  
Reply Wed 8 Mar, 2006 01:36 am
Thomas wrote:
Debra_Law wrote:
It is a ridiculous idea--totally without merit--that states should not be constitutionally required to treat homosexuals as equal members of society because doing so would effectuate court-imposed "social change."

Upholding individual rights under the due process and equal protection clauses of the constitution is the court's duty.



The problem is that there is no consensus among jurists whether gays have a right to marry under the equal protection clauses of the American constitutions, state and federal. They are similarly conflicted about the issue as the rest of American society.


You are wrong. When a case or controversy arising under the Constitution is brought, it is the sworn duty of judges to impartially decide the case or controversy.

ALL of us--homosexuals included--have the right to petition the government for redress of grievances. The right to petition guarantees ALL of us access to courts to decide cases and controversies arising under the Constitution. Our courts have jurisdiction (authority) to decide cases and controversies arising under the Constitution. Homosexuals have the right to petition the courts to set aside state marriage laws as unconstitutional. Like it or not, they are entitled to a decision on the merits from a court of law. They don't have to wait for due process or equal protection under the law until someday in the future when "society" is willing to to give it to them.

The fact that YOU personally would rather have the people decide this constitutional issue rather than have the courts decide the issue is of no consequence. The people were not vested with that duty; the courts are vested with that duty and for good reason. Tyranny by the majority is still tyranny.



Quote:
The 14th Amendment was enacted 140 years ago; for 110 of those years, there was consensus, or near-consensus, among jurists that states didn't violate the 14th amendment by constraining marriage to couples of the opposite sex. Hence, when they discover a right to gay marriage in the equal protection clause now, that's an after-the-fact rationalization of a cultural change in the legal community.


The explicit language of the Fourteenth Amendment extends its protection to all persons. It says what it means and it means what it says. A long history or tradition of gay bashing does not transform unconstitutional discrimination of homosexuals as a class of persons into constitutionally acceptable discrimination. There is no language in the constitution that says its protections against state deprivations of fundamental rights and equal protection under the law extend to all persons EXCEPT homosexuals.

Individuals have a fundamental right to marry the person of their choice. Unless the state has a compelling interest that is served by depriving homosexuals of the right to marry the person of their choice, the state statute that authorizes that deprivation violates both the due process clause and the equal protection clause of the Fourteenth Amendment.

A state does not have a compelling interest in preserving its long history and tradition of discriminating against a disfavored class of persons simply because ending that reprehensible tradition might effectuate "social changes" requiring tolerance of the differences in individuals.



Quote:
If the 14th Amendment itself compels your interpretation, America's legal community has been dragging its feet for 110 out of the last 140 years; presumably it ran against its cultural biases to stand up for a fundamental right. On the other hand, if the 14th Amendment does not compel your interpretation, the legal community is manipulating the law now to achieve a social result jurists desire. Either way, America's legal community has been imposing its cultural values under the color of the law. Why should American non-jurists accept such an imposition?


Your view of the Fourteenth Amendment and our long history of discriminatory and unequal treatment of some classes of persons would require us to ignore the express language of the amendment itself in favor of furthering the very evils that it prohibits. Thankfully, our courts have recognized on many occasions that our history has taught us that laws once thought proper serve only to oppress. We have learned that lesson over and over again throughout our history.

Providing the constitutional protections against tyranny and oppression is NOT imposing "cultural values" as you claim. Enforcing the constitution and adhering to our constitutional values is what makes this country worth living in and worth fighting for. Although some small-minded, hateful persons would rather lynch or oppress homosexuals (or blacks, or Jews, or women, etc.) than allow them to participate as equals in our society, that discriminatory animus does not trump the Constitution.


Thomas wrote:
The only thing I don't like is the notion that social change should be driven by the cultural attitudes of the legal community, as opposed to the culture of society as a whole.


Your argument is without merit. We do not live in a pure democracy. Therefore, the tyranny of the majority does not dictate the nature of the society we live in. Like it or not, our Constitution provides that all persons (even persons belonging to disfavored groups) are entitled to due process and equal protection under the law.
0 Replies
 
Thomas
 
  1  
Reply Wed 8 Mar, 2006 03:29 am
Debra, if you don't mind, I would prefer to discuss this issue one disagreement at a time, and we have two of them here. First, you and I disagree on the proper interpretation of the 14th Amendment. We have been arguing about this about a dozen times already. I don't think we're getting anywhere. In particular, we aren't saying anything our readers wouldn't predict us to say. Until we do, I suggest we just agree to disagree on this point.

Our second disagreement is about the role of the legal community in American society. My point here is that in practice, American court decisions are driven by the mores of the legal community, which can differ from the mores of society at large. Because jurists have no superior claim on proper mores than the rest of us, this presents a `tail wags dog' problem. This point of mine stands independently of what I think about the 14th amendment. Even if I conceded that your interpretation is obviously correct here and every other is false, that would only raise the question why American courts have taken so long to discover it. Why did it take them 90 years to ban anti-miscegenation laws? Why didn't they immediately grant full economic rights to women? Why didn't they immediately hold that marriage must be an option for gay couples? And the list goes on and on.

The answer, I submit, is that American courts generally enforce claims as constitutional if the jurists on them justices approve as a policy matter. Conversely, the courts drag their feet when the justices on them disapprove of the claim as a policy matter. I submit this is true whatever the actual constitutional rights are, and whatever opinions the jurists on courts and bars ought to hold. And, with respect, I have a problem with that.

Debra_Law wrote:
The fact that YOU personally would rather have the people decide this constitutional issue rather than have the courts decide the issue is of no consequence. The people were not vested with that duty; the courts are vested with that duty and for good reason. Tyranny by the majority is still tyranny.

I agree my opinion is of no consequence to the outcome of any court cases. But that doesn't mean it is of no consequence to this thread. BBB started it with an article discussing the changing role of marriage in society, and the way American courts have historically responded to that change. It stands to reason that this is the subject she intends to have us discuss here, and that's exactly what I'm doing: Overall, I am not impressed with the role American courts have historically played in regulating marriage and gender roles. While the tyranny of the majority is a bad thing, so is tyranny by a minority of judges. And, with respect, I find it perfectly appropriate for me to say this in the context of this thread. If you disagree and find it of not consequence, you are free to ignore me.

Debra_Law wrote:
The explicit language of the Fourteenth Amendment extends its protection to all persons. It says what it means and it means what it says. A long history or tradition of gay bashing does not transform unconstitutional discrimination of homosexuals as a class of persons into constitutionally acceptable discrimination.

If this is true, American courts have been dragging their feet about the rights of gays for most of the history during which they have interpreted the 14th amendment. This is a reason to mistrust American courts as they compel the social changes they desire through the 14th Amendment.

Debra_Law wrote:
Thankfully, our courts have recognized on many occasions that our history has taught us that laws once thought proper serve only to oppress.

... and when people find that out, they are free to change the laws. My point is that in deciding which laws have become oppresive, courts have no insights superior to those of ordinary citizens. I submit that this is reason for justices to restrain themselves, and for citizens to mistrust interpretations through which jurist impose their professional biases upon the rest of society.

Debra_Law wrote:
Unless the state has a compelling interest that is served by depriving homosexuals of the right to marry the person of their choice, the state statute that authorizes that deprivation violates both the due process clause and the equal protection clause of the Fourteenth Amendment.

That is what the courts current precedents imply -- I know that. But if this is so obviously what the constitution says, why did American jurists find this out in 1975? Why not in 1875?

Debra_Law wrote:
Providing the constitutional protections against tyranny and oppression is NOT imposing "cultural values" as you claim.

Would you say, then, that American jurists imposed their cultural values when they decided that women can't be competent lawyers? When the Supreme Court, in an opinion justifying sterilization programs, held that "three generations of imbeciles are enough"? Between 1874 and ca 1970, when they didn't stand up for a gay person's right to marry someone of the same sex?
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Wed 8 Mar, 2006 09:03 am
Debra and Thomas
Great discussion. Thanks for bringing the focus back to the theme of this thread. It is an important issue.

I'm not going to intrude into your debate. Only want to add that sometimes it takes a long time to do the right thing. Some people, including judges, have more courage than others to do the right thing. It sometimes takes the people decades to realize what the right thing to do is and adjust to it. It usually results in no real harm. The only people at a disadvantage are those who use the wedge issue to win elections, to recruit to their organizations and to raise money for their use. How noble is that?

Equal protection of homosexuals under the Forth Amendment does not follow the usual problem of having to follow the money interests to understand the dilemma in most cases. Instead, the change under discussion will most likely produce benefits to society.

It is sad that it took the people and their courts so long to realize this.

BBB
0 Replies
 
Setanta
 
  1  
Reply Wed 8 Mar, 2006 09:25 am
MOAN wrote:
You didn't say I HAVE killed or stolen for Jesus. You said I WOULD.


However, earlier . . .

MOAN wrote:
ARE YOU GOING TO BRING UP LIES AGAIN? YOU ARE BEING A COWARD (IMO) BY NOT ADDRESSING WHAT YOU POSTED OF ME ABOUT ME STEALING AND KILLING FOR JESUS! HYPOCRISY!????
(Caps for emphasis only)


The Mother of Lies strikes again. You dance and sing, and lie, on this topic, just as you do on all others. Your position on homosexuality is a significant example of your willingness to quibble just to make yourself appear to be reasonable.
0 Replies
 
Arella Mae
 
  1  
Reply Wed 8 Mar, 2006 11:55 am
Quote:
Once again, Momma Angel has used her sabotage and diversion skills to redirect the topic of this thread assisted by those who endulge her compulsive need for attention. The original post is reposted here to try to bring the discussion back to the topic of history versus custom. It's not about Momma Angel nor her's beliefs we've been told about ad nauseum.---BBB

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."


I am respecting this post.
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