Sorry if this has been discussed already in another thread. I have been “away”.
My understanding of Judge Walker’s ruling in teh California Prop 8 case goes like this (in part):
Supreme Court has ruled many times that “marriage” is a fundamental right.
In the long ago past, only men and women could get married, but those marriages were bound by the additional principle of coverture
Briefly, coverture means that man and women’s role within marriage were strictly defined under the law.
I (not_alice) think that when Prop 8 proponents refer to “traditional marriage”, they are referring to “marriage plus coverture”
Coverture laws were struck down a long time ago.
Therefore, there is no “marriage plus coverture” anymore in the US, just marriage decoupled of coverture.
All references to gender related to marriage and the law are not inherent in “marriage”, but in the principle of “coverture”.
Therefore without coverture, gender of the partners plays no role in marriage itself.
One could further argue that without coverture, under US law, gender NEVER played a specific role, and we are just now getting around to noticing it or acting on it.
Actually my reading or In Re: Marriage cases was similar - the CA Supreme Court found that the right to genderless marriage was long inherent in the actual law, only no one had got around to noticing or forcing the issue until 2008.
Thank you for introducing me to the term “coverture”.
That said, I don’t think much of the opposition to (or support of) same-sex marriage is to do with anything as formal as definition of terms. It’s a moral question, and because of that, it’s very hard for either side to put up a convincing purely reasoned basis for their stance.
For instance, I think that allowing SSM is the right hing to do, based on the premises that gay people should have the same rights as everybody else as far as possible, that marriage is largely a legal construct and that gay marriage won’t hurt anyone. On the other hand, people can start from the premises that being gay is immoral in itself and/or that marriage is a mostly a religious concept and that any change to that is an attempt to influence religions (and that trying to change religions is wrong). Both stances are logically defensible; it’s just that we can’t agree on the premises.
I think people’s first reaction is to say, “No, that’s not it.” But in point of fact, you have hit the nail on the head on what a lot of people suspect are the underlying motivations of those who “support traditional marriage.” It is not, of course, the rationale they argue publicly.
For anybody who doesn’t what coverture is. Basically under common law and husband and wife were considered to be a single legal person for most purposes and that person was the husband. A feme covert was a minor for all practicle purposes. She could not enter into a contract (other than for basic neccesities), manage her finances, sell/buy property, or make a will. All of these needed to be done by her husband on her behalf. Any wages she earned legally belonged to her husband. Her husband was also responislbe for her debts and could be sued for torts she commited. In contract a feme sole (ie a spinster, widow, or divorcee) had the same legal rights as a man (other than voting). She could enter into contracts, manage her finances, sell/buy property, and make a will. She was responsible for her own debts & torts.
But of course, making secular laws about who can and can’t get married is taking marriage away from the churches. Churches should be up in arms against this governmental intrusion into their domain, regardless of whether they themselves support same-sex marriage or not. If you think that marriage is arbitrated by churches, then petition your church leadership on what marriages to allow. If you think that marriage is arbitrated by God alone, then pray to God on the subject. But once you start voting on referenda about marriage, you’re making marriage a purely secular affair.
While I like the spirit of the argument, it’s not going to be compelling. Quite a lot of religions (and other philosophies) see laws as tools to implement their moral views. In other words, you’re allowed to use the law to enforce moral concepts as long as it’s the right concepts: religion > law > common people.
Oh they ran a campaign based on morals, all right.
But when you are in a court, you need evidence, as Judge Walker also noted in his opinion. We are a nation of laws. If proponents want to discuss morals, the place to do that is within their church or churches, not the courts, legislatures, or ballot boxes. Because one thing is clear - we don’t establish the morals of this church or that as law simply because they want to impose their morals on everyone.
May I ask you read Judge Walker’s decision and get back to me on if you still think that?
I am afraid that the whole “marriage is a religious idea,” that is a common theme on this board, is in error. Most of the laws and traditions that we have concerning marriage, (through Christianity in our culture), were borrowings from Roman Civil Law, not inherited from Judaism or created by Christianity.
Marriage provides a clear legal method to define for rights of inheritance, obligations to child rearing, responsibilities for debts, and provide authority for medical decisions, among other things, that has absolutely nothing to do with religion. That marriage has generally been administered through religious agencies in Western culture has more to do with the fact that all social interactions, (births, deaths, etc.) were handled through religious agencies for several hundred years. Religions did not invent marriage.
With all due respect, as the OP, I’d prefer this not to be a rehash of endless threads and discussions on this and other sites, but to focus on the relationship (if any) between “traditional marriage” and coverture, and also between marriage today without coverture and the issues of gender of the parties.
This is a question regarding legal interpretations (but not a request for advice per board rules)
Please use another thread to discuss moral issues, religious distinctions, etc.
I think the trend toward acceptance of gay marriage is because traditional marriage has lost a lot of it’s value.
I mean when you have celebrities like Britney Spears getting married as a joke, it’s hard to deny marriage to gay people. It’s like if straight people can treat marriage as a joke, why can’t gay people, at least those who are serious about it, get married?
I can name you at least four people (two men and two women) that were so blase about their upcoming marriages they told me “Well if it don’t work out, I’ll just get a divorce”
I read part of it just now (forgive me, it’s almost 140 pages even if it’s a pretty interesting document). And I still think that. I think the ruling shows that the proponents of prop 8 made a really shoddy argument that’s fairly clearly unconstitutional, and I think that to make any further clear constitutional argument against SSM is going to be difficult, but it’s just not going to matter to a lot of the opposition of SSM. Yes, coverture was brought up in the case, and in my view it’s a good example of where “the definition of marriage” was changed in secular law. I just don’t think those kinds of arguments are going to sway people towards acceptance. Most of their arguments (when they bother to present any) are in my view just found wherever because the conclusion appeals to them. The ruling document is filled with examples of that.
I don’t agree, because the anti-SSM argument you’ve laid out here is based on a faulty premise. The state institution of marriage is not a religious concept in the US, it is a completely distinct institution that has nothing to do with religious concepts of marriage. Sure, back in the day, the two were intertwined, but it really hasn’t been that way in the US for a very long time. Now, it’s become very clear to me in these debates that a lot of people erroneously think that their religious marriages and state marriages are the same exact thing, and they absolutely refuse to believe otherwise. But it’s not a logically defensible stance.
Please clarify, then. You asked him for a cite regarding the non-secular nature of laws, and I’m pointing out that marriage today is a completely secular institution. I’m not sure how you want to limit the discussion then.
Well for one thing, you weren’t replying to my posit for a cite.
For another, I don’t see a cite in your post regardless.
For a third, I was not interested in a cite that civil marriage today is secular, but rather that anytime post-ratification-of the-1st-Amendment it was not.
I don’t want to get into a debate into what is a good cite or not, so just assume I am referring to the highest bar possible.
Or, we can drop this part as a dead end, and really focus on coverture, which would actually be my preference.
How do you come to the conclusion that Prop 8 proponents are arguing in favor of traditional marriage as it relates to coverture? I’d be surprised if most of them even know what that is.
Of course not. I did not mean to imply either at all. What I meant is that some of the arguments against SSM are presented as being purely legalistic, linguistic or religious; “changing the definition of marriage” stuff. With regards to those arguments, the coverture example seems to me to be a relevant example of the clear (and secular) power the state has in “redefining” constructs like marriage.
However, as far as I can see, the broad resistance to SSM is not at all based on linguistic or legal principles.
As an aside: anti-SSM sentiments are often framed in the guise of moral arguments but I doubt even moral objections are really the basis for the opposition. I also consider any legal anti-SSM argument based on morality to be a an argument that will end up with SSM being unambiguously recognized. The moral reasoning for SSM is much stronger than the opposition.
What I do see the anti-SSM crowd is working from is gut feelings and (some) religious intolerance. Probably mostly gut feelings. Neither are legally useful, even if both might be understandable, but that doesn’t mean that examples like the overturning of coverture are going to persuade them. What’s needed is a more emotional appeal to the general public. The laws in the land make no difference if the public doesn’t care about respecting them.
To be absolutely clear: I fully support the right of same-sex people to marry and have all the consequent rights implied by marrying and I don’t particularly care if that right is currently law or constitutional or not; if it’s not, it should be.
