Marriage: An Institution of Immutability?

“Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?” – Sonya Sotamayor During Oral Arguments of Hollingsworth v. Perry

I invite you to partake in a thought experiment. For a moment, concede one of the arguments that opponents of same-sex marriage make:

The definition of marriage, the age-old bedrock social institution should not be redefined to include same-sex couples.

In withstanding the traditional definition of marriage, the following would occur: Women would have no rights over their bodies, women would have no rights in child custody, and women would have no rights to property. Women as an entity independent of the husband, would, in a legal sense, be nonexistent.  Interracial marriage would be illegal, divorce would not be legal or would only be permitted in instances of adultery and marital rape would not be a crime. All of this is true and it is a shame for people to hide their religious beliefs and homophobia behind the cloak of the “traditional definition” of marriage.

For those of you that are inclined to believe that the nightmare the traditional definition of marriage provided is anecdotal, I plead for you to consider the institution as prescribed by biblical and secular law.  Divorce was only granted in instances of adultery in New York during 1797.  In South Carolina, divorce became legal in 1872, repealed in 1878 and legalized again in 1949.[1] The religious should find solace in this since it aligns with what is written in Matthew:8

Jesus replied, “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery.”[2]

Jesus makes it very clear what the traditional definition of marriage is and where he believes the authority of the tradition of marriage comes from.  Ironically, in some cases of marriage, Jesus splits from the traditional tenants of marriage from traditional Hebrew law. Jesus’ kinship for rebellion against tradition is illustrated when he changed the traditional consequences for the crime of adultery that was given in Leviticus.[3]

10 If a man commits adultery with another man’s wife—with the wife of his neighbor—both the adulterer and the adulteress are to be put to death.

It is clearly stated that adulterers should be put to death, but in the New Testament, however, Jesus has a change of heart. When questioned about the law mandating the stoning of a woman who was accused of the crime of adultery, Jesus saves the woman’s life by proclaiming “Let any one of you who is without sin be the first to throw a stone at her.” Even Jesus, the son of the ultimate authority, implemented new covenants for the betterment of society.  However, for so many people made in his image, Christians refuse to be as accommodating as their dignitary and result to taking their holy book a la carte and forget passages such as 1 Samuel 16:7:

“The Lord does not look at the things people look at. People look at the outward appearance, but the Lord looks at the heart.”

So, again, I can grant you the argument of preserving the traditional definition of marriage, but the definition would have to read something like this: A contract relinquishing all property rights, physical rights, emotional rights, of one woman to one man.  As morbid as an institution as this sounds, the law seemed to coincide with that “traditional” definition especially in the case of Packard vs. Packard.

Elizabeth Packard had made a habit of challenging her husband, Theophilus Packard, during bible study. Theophilus, interpreting Elizabeth’s intellectual strength and neglect of the bible’s doctrine of original sin as insanity, decided to have his wife put in an insane asylum. When two physicians entered the Packard home in 1860 and charged Elizabeth with insanity because of a racing pulse, Elizabeth refused to go voluntarily or without trail.  Theophilus quickly let his wife know her legal status in society:[4]

You are not a citizen, while a married woman, you are a legal nonentity, without even a soul in law. In short, you are dead as to any legal existence, while a married woman, and therefore have no legal protection as a married woman.  

Elizabeth Packard would later become incarcerated in an asylum.  Eventually, Elizabeth’s sanity was proven and she was released from the asylum.  This may present itself as a silver lining, but, dear reader, do not be fooled.  Upon her release from the asylum, Elizabeth, lacking custody rights, was compelled to live with her husband to see her children.  After Elizabeth’s return, her husband locked her in the children’s nursery.  Elizabeth escaped by delivering a note through a slit in the window, which was later delivered to Judge Charles Starr, who ordered a trial to determine Elizabeth’s sanity.  The case was short and deliberation only took seven minutes.   Elizabeth Packard was found to be sane, but would not have access to custody of her children and did not have rights over earnings, even after she moved to Chicago and wrote books and pamphlets as a way to make money.[5] How could anyone with an ounce of morality or concern for marriage profess to want to return to marriage in its “traditional” form? How could someone make the case, as Charles Cooper, the lawyer arguing against same-sex marriage, made during oral arguments of Hollingsworth V. Perry, that the definition of the traditional social institution should not be fundamentally changed? Mr. Cooper posed the moral dilemma in the form of, ironically enough, a woman voting in 2008:

… With the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of — of profound redefinition of a bedrock social institution would be.

In America, we’ve tried this experiment before and we do know what redefining the bedrock social institution has done for marriage: Women earning property rights, women having a say over their bodies, and people of mixed races being ably to marry – just to name a few.

It is plausible that someone is against same-sex marriage but not for the reason of changing the traditional definition of marriage. It’s possible that one could support the “one man/one woman” argument on the grounds of the “purpose” of marriage, which according to Mr. Cooper is:[6]

The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.

In fact, it is true, as the people of California believe that it still is true, that the natural procreative capacity of opposite-sex couples continues to pose vitally important benefits and risks to society, and that’s why marriage itself is the institution that society has always used to regulate those heterosexual, procreative — procreative relationships.

 When I first heard this, I realized Mr. Cooper’s argument is strikingly similar to a passage in Malachi 2:15:

“Has not the Lord made them one? In flesh and spirit they are his. And why one? Because he was seeking godly offspring. So guard yourself in your spirit, and do not break faith with the wife of your youth.” 

Mr. Cooper and Malachi seem to be combining procreation and raising children when they are, in fact, separate entities.  Is it to be assumed that all created beings will be reared by their creator(s)? This assumption did not come to fruition during the traditional stages of marriage when physicians did not know microbes caused infection, nor was this assumption true in mid-nineteenth-century America when at least 4 percent of deceased Southern and 2 percent of Northern women died in childbirth.[7] Whether or not someone is married does not increase their chances of having children, and one’s ability to procreate is not an indicator of how well that same individual will fare at raising the offspring he or she procreates. A quick comparison of the maternal mortality rate (In 1915, the maternal mortality rate was 607.9 deaths per 100,000 live births for the birth registration area. In 2003, the maternal mortality rate was 12.1deaths per 100,000 live births in the United States)[8] will show you that the institution of marriage did not facilitate the odds of surviving childbirth.

In the words of Mr. Cooper, as elicited via questioning by Justice Sotomayor, the essential thrust of the anti same-sex argument is:

Same-sex couples and opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principle interest in marriage is in regulating procreation.

Later, during oral arguments, in an almost matter-of-factly way, Mr. Cooper adds a quasi sub-argument, which is whether or not redefining marriage to include same-sex couples would advance the “interest of marriage.”

The correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage

This argument was interesting due to the fact that the comparison to opposite-sex marriages was never made.  Mr. Cooper could have said, “Redefining marriage to include same-sex couples would advance the interest the same as opposite-sex couples.” Personally, I think Mr. Cooper knows the argument can be made that same-sex marriage actually does further the interest of marriage in the same ways opposite-sex marriage has benefitted the interest of the traditional definition of marriage.  Opposite-sex marriage was able to redefine the definition of traditional institution of marriage in terms of the gender roles women and men were forced into by virtue of “traditional definition” of marriage.  The interest of marriage was pushed forward by making the relationship between a man and woman more egalitarian, by providing women with property rights in the death of the husband, and providing women with the ability to have custody of her children Today, it seems as if people assume those rights were always available to women, however, they are the product of redefining what constituted a marriage and the gender roles in it.

In the case of raising children, the process of adoption is more concerned with regulating the raising of children than marriage is.  Regardless of marital status, anyone can have children with whomever they wish, but adoption is not a first come first serve process. The argument against same-sex marriage for the “sake of the children” does not hold weight because same-sex couples can already adopt in California. Even if it were not the case, how many of you are willing to put your parenting under trial? Imagine what the world would look like if the right to have children were distributed based on the speculation of the type of parenting the child could receive. How many of you would be willing to tell a struggling single woman, for example, that people that share her situation have had a difficult time parenting, and she should, therefore, not be able to have children? While it goes without saying that two men or two women cannot procreate, one man and one woman can also be genetically robbed of procreation. An easy way to picture the procreation fallacy is to imagine an island populated only by men and women who identify as gay.  Would the island be left with the remains of what would be known as the last humans? Would the species slowly dwindle? No. Who you enjoy having sex with does not determine your ability to reproduce offspring, and one’s ability to procreate is not an indicator of how well that same individual will fare at raising the offspring he or she creates.  Also, with a population around 7 billion people, the survival of our species and its growing population will not be infringed upon. In fact, our large population has had many negative implications on our economies and nature itself.

 Those opposed to same-sex marriage on the basis of religious authority have no ground to stand on.  How many of you defending the traditional definition of marriage are living within the traditional definition of your religion? Beyond that, all religious beliefs and practices are not protected under the law. Polygamous marriage, female genital mutilation, and denying children medical care based on the power of prayer are a few.  So, do we dare revert back to marriage as it was defined in its traditional sense? Leaving women without a “soul” in the law? Leaving interracial marriages separate from their endogamous (the custom of marrying within the same ethnicity) counterparts? It seems quite simple.  Your right to take the definition of marriage a la carte does not negate my ability to do the same. You do not have a right to deny my right to marry whomever I please by evoking the “traditional” definition of marriage you feel comfortable with. The definition of marriage has evolved with respect to equality since it’s implementation as a social institution, so it seems with same-sex marriage, it should do the same, which is the tradition of marriage worth conserving.


[1] On South Caroline and divorce see Phillips, Roderick. Untying the Knot: A Short History of Divorce. Cambridge [U.K.: Cambridge UP, 1991. 142-43. Print.

[2] Matthew 19:9-10

[3] For New Testament rules regarding marriage see 1 Corinthians 7:1-15 For the New Testament on the unmarried see 1 Corinthians 7:25-40.  For laws regarding adultery in the Old Testament see Leviticus 20: 10

[4] On Elizabeth Packard’s abduction see – Packard, E. P. W., and Sophia N. B. Olsen. “My Abduction.” The Prisoners’ Hidden Life ; Or, Insane Asylums Unveiled as Demonstrated by the Report of the Investigating Committee of the Legislature of Illinois, Together with Mrs. Packard’s Coadjutors’ Testimony. Chicago: A.B. Case, Printer, 1868. 43-44. Print.

[5] For Elizabeth Packard and Theophilus Packard see – Abbott, Elizabeth. “Divorce and Gener.” A History of Marriage: From Same Sex Unions to Private Vows and Common Law, the Surprising Diversity of a Tradition. New York: Seven Stories, 2011. 457-65. Print.

[6] For oral arguments made, see Hollingsworth v. Perry. Supreme Court. 26 Mar. 2013. Supreme Court of the United States. N.p., 26 Mar. 13. Web. 26 Mar. 13. <http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-144&gt;.

[7] Abbott, Elizabeth. A History of Marriage: From Same Sex Unions to Private Vows and Common Law, the Surprising Diversity of a Tradition. New York: Seven Stories, 2011. Print.

[8] Hoyert DL. Maternal mortality and related concepts. National Center for Health

Statistics. Vital Health Stat 3(33). 2007.

4 Comments

  1. Anthony Conwright

    Thank you for reading. Please feel free to comment or ask any questions.

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  2. Joseph Hartman

    Always enjoy your thoughts Anthony. I hope you are doing well. Since you seem to have put a lot of thought into this, I thought I’d turn to you to get some questions I have answered. Before I begin though, let me say I do believe homosexual couples should have the right to marry, but only because I don’t see why government really needs to play a role in how two people define their relationship with one another. Hopefully this perspective will make a little more sense in a moment.

    So here’s my question: what is the rationale for changing existing laws to allow homosexuals to marry? We can probably agree that “no reason at all” is probably not a good reason to change existing legislation, so there must be a justification for the change. I’ve heard many reasons for the change, but none that apply exclusively to the situation of homosexuals. Freedom, equality, “if my neighbor wants to marry a man, how does that affect me?”. These are all good reasons, but they can be applied to any number of causes that I don’t hear many people championing.

    Since you’ve already gone down the slippery slope in detailing consequences of defining marriage traditionally, I’ll go down the opposite slope and ask, why don’t these reasons apply to polygamists? I realize that legalizing gay marriage won’t necessarily lead to the legalization of polygamy (although I wouldn’t care if it did, remember I don’t believe government has a role in these personal affairs at all), but how could a gay man argue for his right to personal freedom and happiness and equality under the law with respect to marriage and then not support a polygamist’s right for the exact same reasons?

    Whether my lesbian neighbor is married to another woman or another six women doesn’t change my own marriage either way, right? Perhaps the reason has to do with biology and the argument that homosexuality is set at birth, but polygamy isn’t? I find this rather specious for two reasons though. The first is that this argument was used against homosexuals for years and it would be pretty dicky to turn around and use it on polygamists now. The second reason is that from what I’ve read about human sexuality and the biology of homosexuality, the main conclusion I’ve taken away is that sexuality is not a strictly definable institution. It is, rather, highly fluid and dynamic. Sexuality changes during people’s lifetimes, based on their biology and also their experiences. Many women have lesbian experiences in their life, but few of these women refer to themselves as lesbians. So most of the research seems to show that human sexuality is a decidedly fuzzy affair that ebbs and flows with respect to populations and time, rather than the binary one we most often encounter. All this is to say, are we sure polygamy is any less a biological orientation than homosexuality? Even if it were, why would that matter for purposes of freedom, equality, and “doesn’t affect me”-ness?

    Perhaps there is an argument against polygamy for good-of-the-species reasons. Diversity of the gene pool and all that. However, this road is unlikely to lead anywhere more truthful than “gay families aren’t as good as straight families”. After all, if two moms is better than no moms, then twenty moms must be better than no moms as well right?

    Okay, so maybe the reasons for gay marriage also apply equally to polygamy and we just cross the polygamy bridge when we get there (or maybe I’m just missing a crucial justification for gay marriage that eliminates polygamists from consideration). In either case, I still think freedom, equality, and “doesn’t affect me”-ness are weak arguments for changing a law. After all, there are all kinds of laws that we have that violate people’s freedoms and make them unequal even though they don’t affect me/us personally.

    Let’s start with the law that you have to be 18 to marry at all. Many countries permit marriages as early as 13, or maybe younger, I’m not sure. Most Americans, however, are perfectly content with the arbitrary time of 6574 days (18 years) before a person can get married. Does anyone honestly believe that a person can be 6573 days old and not be ready to be married, then go to sleep and wake up the next morning ready to be someone’s spouse? This is ridiculous of course, but where is the backlash? Where are the defenders of the freedom and rights of 17 year olds? If my 17 year old neighbor wants to get married, how does that affect my own marriage? The point is that laws are generally discriminatory by nature, often along arbitrary lines. If we are content to infringe on the rights of 6573 day-olds with respect to marriage, why should we not be content to infringe the rights of homosexuals? Put another way, why are we so anxious to change one existing discriminatory law, but so unwilling to change another?

    There are other examples of laws like this, from the 21-year old alcohol law to prostitution to marijuana to fissile material. All of these carry some elements of discrimination against citizens of some kind and violate their freedoms even though if a 20 year old kid wants to drink a beer on his marijuana farm with a prostitute next to his uranium collection it doesn’t affect my marriage at all.

    So I think the best reason for legalizing gay marriage is this: We live in a democracy. This means the majority rules. The majority supports legalizing gay marriage. Therefore, we should legalize gay marriage.

    This, I think, is an argument that applies to gay marriage but not polygamy or minors or drinking or prostitution. However, just because it is the best reason does not mean it is a good one. After all, America would be a very different place if we had to live by all the laws that got passed just because a majority of people supported them.

    Perhaps this goes a bit further though? Maybe it’s “America is a place where we live by all the laws that get passed that don’t violate the constitution just because the majority of people supported the laws at the time they were passed.” or something like that. Is that the answer? Does that include laws allowing homosexual marriage and exclude laws forbidding interracial marriage? I think it does, but I’m not sure.

    So those are my questions. I hope you see them as such and not as some attempt to rebut your post above or as some argument to perpetuate discrimination in the world. I truly have not heard coherent responses to these questions, but I also haven’t been listening as attentively as you have. Hopefully you can set me straight (pun intended). Cheers! -Joe

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  3. Anthony Conwright

    Thank you so much for reading and sharing your thoughts, Joe. I did put a lot of thought into this, which I normally try to do with anything I write and it was nice to receive a response that was thoughtful and thought provoking. I’ll answer the questions your presented in order.

    What is the rationale for changing existing laws to allow homosexuals to marry? In the specific case of California, if same-sex marriage is not added to the definition of marriage, same-sex couples, as a class of individuals, do not have access to the same federal laws as opposite-sex couples. I do agree that the argument is not being championing in other areas, but that shouldn’t be a factor in not applying the definition of marriage to same-sex couples (I know that isn’t what you were saying). Also, the definition has been modified multiple times in history (more on that in a bit), so we do know it is possible to add classes of people to the definition of marriage and we know it is possible to change the gender norms from their traditional legal, both biblical and legal, sense.

    You are right – I did go down a slippery slope of detailing the consequences of defining marriage traditionally. The reason why I choose to go down that path was to illustrate it’s a dangerous road for anyone to go down. Using the traditional definition of marriage to deny same-sex couples the right to marry is also going down a slippery slope. My intent was to lead people away from using the argument of preserving the traditional definition of marriage since the traditional definition of marriage had adverse consequences to society.

    In terms of polygamy you bring up a great point. First, a gay person arguing that polygamist should not get married does not take away from the gay persons right to get married (I don’t think that was a point you were making). For example, a black man saying women shouldn’t vote does not take away from the fact blacks should have the right to vote. It is interesting you bring this up because there are so many blacks in America that are not for gay rights, even though gays have had to fight for the same rights that blacks did not have but now have access to. I’ve tried to explain your question to many of the black people that I’ve had this conversation with, but the connection is rarely seen.

    You are right again. Your Lesbian neighbor’s marriage to six women will not change your marriage. You are also correct on the fluidity of sexuality. Human sexuality is very dynamic. It is also subjective. In the example you mentioned a woman having Lesbian experiences might not refer to themselves as Lesbians, however, they could identify as bisexual or even straight. We’ve seen this in the black men on the “down low” (Black men that are married to women but have sex with other men and consider themselves to be straight).

    In terms of the “biologicalness” of polygamy, I would say it is different than the “biologicalness” of homosexuality. Polygamy and homosexuality are different due to their functions (I don’t think you were saying they are the same thing). A person could be born with same-sex attraction, which would have nothing to do on the amount of people that same person wants to marry. Perhaps a better way I can phrase the difference is this: Sexuality can be seen as the “who, how and frequency” while marriage and polygamy can be seen as the “way.” I could be born having sexual feelings towards women and the way those feelings manifest themselves is through sex and marriage. Being born attracted to women and in this case married to one woman does not stop me from having that same type of love for other women nor does it stop my biological drive to manifest those feelings for those would be mistresses. So, in a sense, we all could be polygamist. The difference is polygamy, as a form of marriage, is a social construct and not something you are born naturally wanting to do. You could be born and develop a high sex drive, which would make you wan to mate with multiple women, but that isn’t the same as marrying multiple women. This is the same as marriage. A person who is not interested in spreading his genes as often as possible is not necessarily going to want to marry one woman. I hope that makes sense…

    You are also right on the diversity of the gene pool. For example, In China men could marry more than one wife as well as taking concubines into their houses. This affected the gene pool greatly. Today, one and a half million Chinese men are directly descended from Giocangga, the Ch’ing dynasty’s founder’s grandfather, through his descendants’ many wives and concubines. The average man, on the other hand, has an average of only twenty descendants. It’s a little different than “gay families aren’t as good as straight families” (I know you weren’t saying this). You do bring up an interesting point about two moms being better than one mom. Apparently, two women do a fantastic job of raising children. There was a study done by Charlotte Patterson for the American Psychological Association in 2005 that concluded children of lesbian or gay parents to be disadvantages in any significant respect to children of heterosexual parents. (I’ll try and add a link to a short PDF describing the study and conclusions)

    Keeping in mind that polygamy being illegal does not indicate whether or not gay marriage should be illegal, I think you are right in terms of some of the arguments of same-sex marriage being applied to polygamy (I know you are not saying they are the same thing, but some of the same arguments can be applied, which I agree with). I differ in the sense that expanding freedom and liberty can be good arguments for changing the law in some cases (I think you would agree under certain circumstances, so I’m not going to assume you don’t). I do, however, completely agree with the “doesn’t affect me” – ness is not a good reason to change a law.

    I agree with the arbitrary age designation. I do not think the lack of changing the age should impede extending marriage to same-sex couples (I don’t think you were saying that). I especially agree with you in terms of the lets call it “age discrimination” for drinking. It does not make sense to me that you have to be 21 to have a glass of wine in the U.S (Which ironically enough is far from the tradition that surrounds drinking, but that is for another post). In terms of marriage, the age of marriage has changed multiple times in history. At one point Pope Alexander III designated the age for girls is 12 and 14 for boys. Gandhi was married at 13. My best guess as to why the age of marriage changed so much was due to the stigma that premarital sex had. I think it stemmed from the ability of a woman to survive pregnancy during ancient times. Back then, the change of surviving a pregnancy was extremely low, so I’m assuming this lead to a negative perception of premarital sex, which then lead to early marriage to have sex. Overall, I don’t have a good answer as to why we don’t change some of our laws regarding the age of consent. Some of them are pretty weird to me, but again, I don’t think that should have any bearing on changing the definition of marriage to include same-sex couples (Of course, I don’t think that is what you are suggesting).

    I don’t think the “majority rules” is the best argument for legalizing gay marriage because the majority is not always right. I think you are right that America would be different if laws were passed based on the majority. We’ve seen the majority get things wrong so many times that I get nervous thinking about what could happen if what is best for the whole, rest in the hands of the majority. In some cases it works, but overall, I don’t think leaving decisions in the hands of the majority is always the best way to go. I think America is a place that does not yield equality to religious beliefs or to traditional customs just for the sake of definition. Even though it doesn’t happen all the time, we try to adapt our laws to accommodate the greater good, which in most cases is equality. Sometimes we get it right and sometimes we get it wrong. I think your quote pretty much has it right, but I think there is a flaw in America living by that principle. It essentially for a waiting line with respect to equality that only moves when the majority of Americans are ready and I think that is problematic. I hope I answered all of your questions coherently… I don’t mind if they were to rebut anything I wrote. I just appreciate you took the time write something meaningful to make me think.

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