“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 In South Carolina, divorce became legal in 1872, repealed in 1878 and legalized again in 1949. 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. 9 I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery.”
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.
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:
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. 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:
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. 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) 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.
 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.
 Matthew 19:9-10
 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
 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.
 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.
 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>.
 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.
 Hoyert DL. Maternal mortality and related concepts. National Center for Health
Statistics. Vital Health Stat 3(33). 2007.