OK, I get that we see the same in the big picture. Maybe because it is Sunday or something, I am not following your logic at all.
Laws only matter if people agree with them?
Huh?
No emotional appeal is needed - that is what lost the proponent’s case in the 9th Circuit Court. They said they didn’t need evidence, and they rolled the dice on that too, bringing only 2 witnesses, both of whom the Court found had no credibility.
What about our protection from Tyranny of the Majority? Isn’t that the whole point of the Constitution?
Even aside from that, what? Anti-SSM are going to hold protests against marriage laws that allow SSM how? By marrying someone of the same gender?
If you don’t want a SSM, then don’t have one seems to be the simple solution.
If the “able” attorneys who were in Court don’t know what it means, then there is a bigger problem here.
In fact, the way I know it is because it was described as such in the Judge’s opinion, plus the universal parroting of the term “traditional marriage”. Sure, Joe Sixpack might not know what it means, but then he is just parroting. It means something. They Judge seems to me to be explaining what it means, and why it is not relevant.
Hence my OP - did others read the opinion the same way?
I’m not sure what kind of cite you are looking for. Since the Anglican church was a quasi-governmental institution in England, we inherited a lot of religious concepts surrounding family issues into our common law, and it took some time for those to work their way out of the system. I’d argue that the concept of coverture stems from religious ideas about the nature of women (although from the mid-nineteenth century onwards, a lot of pseudo-science was used to justify things such as coverture).
For example, here’s a link to Bradwell v. The State [of Illinois] (1872). In that case, the Supreme Court of Illinois ruled that a married woman did not have the right to practice law. One of the justifications for this that the Illinois Supreme Court used was this:
This kind of appeal to religious reasoning is commonly found in state court rulings prior to the 20th century (I could keep finding these). It’s not the only reasoning used to discriminate against women (courts didn’t tend to be that sloppy), but you’ll definitely find it cropping up enough.
Note: Although the Supreme Court upheld the Illinois Supreme Court, though, it didn’t touch on any religious reasoning either way in its own ruling.
Ok, I’ll drop it now.
I agree that without coverture, gender roles insofar as the legal institution of marriage become pretty meaningless (although I would point out that because CA is a community property state, we never had a strictly coverture regime here, but that’s a minor quibble, since it was close enough).
Yes. You can pass all the laws you want, but if the general public doesn’t follow a particular law, it’s fairly useless. You can’t shoot or lock up everyone [insert cynical remark here].
Yes, a big part of the constitution is about that. But you’re still going to need a relatively substantial minority to uphold any laws that are unpopular. I think the US has some sort of process for amending the constitution that spells it out in hard percentages too.
All they’d need to do is continue business as usual. It’d be illegal, but that won’t stop people from trying. But in my experience, as a Dutch citizen, once SSM becomes explicitly legal, most of the opposition will probably just slink away into complete irrelevance. Maybe I was too cynical, and a purely legalistic strategy will work. I dunno.
You don’t understand; these people don’t just not want a SSM themselves; they don’t want other people to have one either. If your question is why, it’s because they’re bigoted assholes. But there’s no law against being a bigoted asshole.
I was not familiar with the term “coverture”, but in general this (or something like it) is an argument I’d thought of in the past. That, once upon a time, asking “Same-sex marriage? You mean, two men or two women? But which of them will be the husband and which of them will be the wife?” would have been a perfectly valid thing to ask. But, we have re-defined heterosexual marriage to mean an egalitarian union of two consenting adults, rather than a union of two people with pre-defined (and gender-based) legal roles. (And most of us think this is a good thing; I daresy even most women who say they aren’t “feminists” wouldn’t put up with the legal situation described in the O.P.)
And to my mind, all this definitely undercuts the whole “Marriage has always meant one man and one woman!” semantic argument. Without even getting into polygamy, marriage has only “always meant one man and one woman” in a fairly superficial way; and in fact the legal relationship between that “one man” and that “one woman” in the 21st century is radically different from what it was in the 19th century. Therefore, I see no bar to extending marriage from being the egalitarian union of two consenting adults (who happen to be of different genders) to also including the egalitarian unions of two consenting adults who happen to be of the same gender. I also see clear benefits (both in terms of justice and fairness and probably also in terms of promoting social goals like getting more people in stable long-term relationships that will be better for their overall health and welfare) to permitting gay marriage. On the other hand, opposition to gay marriage boils down to semantic quibbles; feelings of “ickyness” (which feelings are insufficient things to set public policy by, and can be remedied by the “gay=cooties” crowd just, you know, not getting married to members of the same sex); and religious objections (which are clearly not acceptable as the sole basis for setting public policy in our society; and can also be remedied by churches or clergy who believe homosexuality to be immoral simply declining to recognize and/or perform same-sex marraiges, which they certainly should still have a right to do).
So, pretty much, due to the end of “coverture”, I say gay marriage wins, almost by default–there’s no good reason not to (and on top of that, there are good reasons to recognize it).
Hence my reading of In Re: Marriage Cases that CA Constitution always allowed same sex marriages, even if local ordinances or even state law forbade it and went unchallenged until recently.
Now I wonder how much this sort of legal reasoning played into the the folks at City Hall in SF who were clearly instructed to look into it as soon as Gavin Newsom was elected (or perhaps local activists were on it a long time and had persuaded Newsom before he was elected?).
Because from where I sit, whatever they were thinking must not have been done on a whim, and so far, it seems to have stuck in the Courts.
Walker’s decision is certainly consistent with the jurisprudential trajectory that struck down many sex-specific laws in the 60s and 70s. One that comes to mind was a Louisiana law that required that, ceteris paribus, a man would take priority over a woman when appointing the executor for an estate. Another was a law in Oklahoma that set different drinking ages for men (21) and women (18). This trend toward courts striking down as violative of equal protection laws that treated men and women differently came up around the same time that we saw national movements to purge the remaining incidents of coverture from the statute books and common law as well as the introduction of no-fault divorce in nearly every state. Coverture would be clearly unconstitutional today, although at the same time it was clearly not seen as such in the late 19th century (as the Illinois case cited above by BrightNShiny shows).
I’d not be the least bit surprised that the view of “traditional marriage” that the Prop 8 supporters hold near and dear to their hearts encompasses something akin to coverture, even if they don’t explicitly understand this.
Walker’s decision relies on two findings: first, that the state has no legitimate rational interest in restricting marriage to a union of one man and one woman, and second, that the state’s decision to do so “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected” (Romer v. Evans, 517 U.S. 620 (1996)). If coverture still existed, it might act to satisfy the “rational interest” requirement, but I think it far more likely that a state that attempted to implement coverture would run into a rational interest problem. In any case, Walker’s decision is a pretty short walk from Romer, and while I imagine the appeals will die on the Article III standing issue, the Court would have little choice but to uphold Walker’s decision, simply because it is so well-grounded in precedent.
This strikes me as a philosophical argument about the nature of rights and how they become recognized, rather than a strictly legal argument. Since In Re: Marriage Cases elevated sexual orientation to strict scrutiny, it follows that the state couldn’t bar SSM. However, prior to that, sexual orientation wasn’t subject to strict scrutiny (although previous court rulings and legislation had removed sexual-orientation discrimination pretty much everywhere), so I’m not sure its proper to say that the CA constitution alone always allowed same sex-marriage. I would instead say that the combined weight of previous court rulings and legislation made holding the position that sexual orientation was not subject to strict scrutiny legally untenable. Do you have specific passages from In Re: Marriage Cases in mind?
Personally, I don’t think they gave much thought to the legal reasoning and instead were making a civil disobedience stand. Had they chosen to deny marriage licenses to everyone, including straight couples, they would have been on firmer legal footing (although still not good legal footing). But, since local officials cannot define marriage in CA, they really had no authority either way on the matter.
Suddenly Lily Bart’s burning desire to marry in House of Mirth makes more sense to me.
Anyway, back to the OP. Is this argument one brought up by the anti-prop 8 side? It sounds like it should be.
But whether it was something the witnesses talked about or the filings discussed, or neither, the judge certainly made the point in his decision. I highly recommend everone read it - it is filled with very little to no legalese and is very readable to the typical Doper. Very very plain language.
IDK. But if you’re right, that’s interesting. I haven’t read the verdict itself in detail, but I wasn’t aware that the coverture issue was part of the ruling from the general coverage. I thought the issue that was used was discrimination against gays, and whether they meet the burden of being considered a ‘suspect class’.
Well this is not right. At least not intentionally. I don’t think prop 8 people actually have any concept of the actual history of marriage. “Traditional marriage” is just a code phrase for “we never had homo marriages before!!”.
I don’t think coverture really matters except as 1) a terribly clever but not really legitimate legalese to overturn prop 8 on some kind of smartass technicality and 2) as a legitimate example of one of the many many ways in which marriage has evolved over the years proving that there is no such thing as ‘traditional marriage’.
Nah. Although, for some reason people want to close their eyes, cover their ears, and say “nah nah nah nah”, really, secular marriage, and spiritual marriage are two very very different things.
No matter what kind of marriages eventually become legal, it will never ever be illegal for a church to refuse to sanctify a marriage between, say, multiple interracial gay goats.
Marriage law is rightly only concerned with proper legal issues such as who gets what in a divorce, and what happens to the kids, and who gets what if someone dies, as well as things like shared bank accounts and changes of last name.
It has no say, and should have no say, in what religious groups do in terms of ceremony.
It rightly, as a matter of convenience, lets religious officials also act as legal witness to the legal marriage contract, but this in no way should be construed as saying the legal marriage contract, and the spiritual marriage union have anything at all to do with one another.
There are many aspects of it. There are 80 (IIRC) “Findings of Fact”.
But I think if you ask them to pin down when was the best example of this “traditional marriage” they tend to point to parts of history when marriages were coverture-bound. Even if they don’t know the term, they romanticize the era and the “traditions”.
What is clever or technical about it? Also in the rulings are notes that the Supreme Court has ruled 14 times, dating back to like the 1870s (IIRC) that marriage is a fundamental right without mentioning that it was tied to gender even once.
And that history is clear that any gender issues related to marriage and the law were tied up in coverture, which is long gone.
What’s left but the conclusion that marriage is genderless, and not something that a mere State Constitutional Amendment can change? That seems to be the case Walker made, and he also noted quite clearly that NO evidence credible or otherwise was presented otherwise despite a full trial, and now if there are to be appeals (I understand that is an open question too), they are going to have to proceed with the evidence already presented, no more, no less.
Yes, marriage is of course a moving target. The proponent’s case, which is sickening, is that even though Anti-miscegenation laws were despicable, they at least still required a man and a woman despite the racial bigotry.
So marriage is a moving target to them, but still “traditional” in that one way always.
Until confronted with “coverture”?
Off to bed now, maybe the Board Legal Eagles will pipe up tomorrow.
And this in turn happened simply because for centuries, those who had made religion their job were the people most likely to be able to read and write. Religious agencies started tracking social interactions because someone had to (and for the RCC and marriage, this is only at the “recommendation” level and only from the late 16th century, and it got brought up because the lack of records was known to cause problems occasionally); civil governments didn’t start doing it until the late 18th century.
that is what will happen here too of course. We just need to get to the legal threshold if the other side won’t simply capitulate/come to their senses. It has happened before, regarding interracial marriages, in my lifetime, no reason to believe it won’t happen again. Since it is a sure thing to happen eventually, it seems spiteful to drag it out an hurt people just because.
All of the usual suspects are there But this part about coverture stuck me as different and worth discussing.
Well, yeah, but once they are in court, they have to address it somehow, and even if they don’t, the judge’s decision has to be couched in better terms than that
Those are both pretty significant,not mere technicalities, because that is precisely the claim of the lawsuit. It really strikes at the heart of it.
I guess I’m just not seeing the point. Okay, coverture has been abolished and replaced with one man and one woman, both being equals in the relationship.
How does that translate into destroying the necessity of gender diversity itself in the marriage? So by giving women equal rights, we must assume that in law they are no different than men, so marriage between two men is now legitimate?
The OP didn’t want to rehash the gay marriage debate, but I don’t see the logical nexus on this point alone.
As a minor note, as best I can figure Quebec was one of the last venues in North America (well, the U.S. and Canada - I don’t know about Mexican laws) to abandon coverture (my mother has mentioned some legal hassles about signing her own contracts and such) but one of the first to casually embrace civil unions and gay marriage.
As I figure it, the thing to do is let the Catholic Church run things for a while, then deprive them of all power and nearly-all reverence, leaving a vacuum in which citizens can be as free as possible. It’s harder to get rid of tight-assed Fundamentalist Protestants, who continue to inflict themselves on numerous U.S. states, because they lack a unified power structure that one can ignore in toto.
Just musing, here.
No, the argument is without coverture, there is no restriction on gender. It was not replaced, it was abandoned.
There is no “necessity”. That’s the point.
Women were not “given” equal rights. ERA failed to be adopted.
In this case, which is narrow in scope, coverture has been eliminated as a legal doctrine. Coverture itself was the ONLY legal doctrine that specified the roles of women in marriage under the law. Without coverture, the law simply does not care. And it is pretty clear you could not expect to (re-)implement blanket coverture today, it would be viewed as unConstitutional from the get-go.
So when Prop 8 Proponents argue for “traditional marriage” in court, they are by necessity arguing a legal principle. What traditions? It seems they imply the traditional roles of man and woman in the marriage, even though they never spell it out exactly. So when we look for what laws implemented those roles, in the time frames of which they refer to as “traditional”, we find coverture.
And coverture is gone, never to come back.
Prop 8 (and probably other anti-ssm efforts) may end up being seen as a back-door way to re-implement at least parts of coverture, which if they were more direct about it would never be allowed.
None of this affects how real men and real women ACT in their heterosexual marriages. If they want one to be subservient to the other, one to make a ll the decisions, one to raise the kids, etc. nothing stops them from doing that today, and with Prop 8 repealed, nothing would stop them from living that way tomorrow.
I suppose they could even draw up contracts that specify these roles if they wanted. I think I have heard of such things. They seem onerous to me, but c 'est la vie for consenting adults.
In fact, now that I think about it, if the anti-ssms really long for traditional marriage, then maybe they should be the ones looking to implement some new kind of union - a “coverture union” instead of a “civil marriage” perhaps, which would have only some of the benefits of marriage, but maybe some of the obligations of coverture. Let it be “separate but (only arguably)equal”. Let them take it up with each State, if they want the State to sanction the roles in their marriages somehow.
But why they are interested in the roles in someone else’s marriage , I have never seen addressed from other than a moral point of view, and Judge Walker made the same point in his decision: Proponents raised nothing but moral objections if they raised anything at all. He only has the law to worry about, not people’s morals.
But which of them will be the husband and which of them will be the wife?” would have been a perfectly valid thing to ask. But, we have re-defined heterosexual marriage to mean an egalitarian union of two consenting adults, rather than a union of two people with pre-defined (and gender-based) legal roles. (And most of us think this is a good thing; I daresy even most women who say they aren’t “feminists” wouldn’t put up with the legal situation described in the O.P.)
But this part about coverture stuck me as different and worth discussing.