A Harvard professor made a historian’s case for same-sex marriage in federal court Tuesday, saying backers of California’s Proposition 8 are offering the same rationale – that the survival of marriage is at stake – once used to defend bans on interracial unions and the legal subordination of wives.
Those who supported prohibitions on weddings across racial lines, bans dating from colonial days that the Supreme Court abolished only in 1967, often argued that “the institution would be degraded, their own marriages would be devalued” if such unions were allowed, Nancy Cott testified in San Francisco on the second day of the U.S. District Court trial of a suit challenging Prop. 8.
Similarly, she said, 19th century laws in most states that required women to surrender their property, earnings and legal status to their husbands were viewed by their supporters as “absolutely essential to what marriage was.” It took a series of Supreme Court rulings in the 1970s, Cott said, to stamp out the remnants of sex discrimination in marriage laws.
Black is white.
White is black.
It’s so obvious.
Isn’t a historical argument of this sort on a marriage between a man and women here largely a legal non sequitor? None of that has anything to do with the definition of marriage, i.e. between a man and a woman.
The legal equation here that you learn to argue in first year law school is “Is A a B for the purpose of C?” The question before the court is thus logically, “Is a Same Sex Union a Right for the Purpose of Constitutional Law as regards Marriage?”
No one was arguing in any of the precedents this historian seems to be referencing that the definition of marriage should be between anything other than a man and a woman. That is a big logical jump to compare legal rights of a couple within the due bounds of what the courts have defined as marriage to say that that applies to something outside the bounds of the original common law definition.
In my mind, that’s comparing apples to oranges. Courts unilaterally changing the base definition as opposed to the relationship of rights within the defined parameter. To my mind, that’s a stretch at best, and at worst creates a slippery slope precedent (poly-amory?). Its easier in a legal definition to change the relationship of the defined players to each other than to change the substantive players themselves.
For example, the courts can change the status of a man and a woman in regards to each other such as in changing racial attitudes. That marriage (between a man and a woman) can be upheld regardless of race because of pre-exisiting rights under the Constitution in regards to race. But to say a black man should have the right for the government to recognize his relationship with another black man is a whole separate issue when the common law precedent defines marriage and man and woman. You’d have to throw out a lot of precedent to create a new precedent for that, and legal restraint would seem to be against that.
Just my humble thoughts, such as they are.
When property laws affecting married women were abolished and when Loving v. Virginia was decided Merriam-Webster did not have to amend its dictionary definition of marriage as would be the case if same-sex marriage were ordered. The witness/historian is using the word “essential” in an equivocal way.
A new illustration of the old adage that some ideas are so stupid you need a PhD to believe them.
Gosh, i wonder if the Court will consult Merriam Webster?
deaconmark, what’s your definition of marriage?
From the online merriam-Webster dictionary:
Main Entry: mar·riage b : the mutual relation of married persons : wedlock c : the institution whereby individuals are joined in a marriage
Pronunciation: ˈmer-ij, ˈma-rij
Function: noun
Etymology: Middle English mariage, from Anglo-French, from marier to marry
Date: 14th century
1 a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage
The presented information, like all historical data, is subject to interpretation and the biases of the presenter. The California Federal courts are the place for trying to foment social engineering through the judiciary. I doubt that the SCOTUS will want to create another Roe vs Wade decision that roils the body politic for decades. The place for this to be decided is by the states not the Feds.
Perhaps the most thought provoking answer she gave was when she indicated that she thought it true that beyond self preservation, human behavior is infinitely malleable.
#7, so you can see from the definitions that they contradict one another. If marriage is the union of two persons of the opposite sex(the prefered definition) then it can’t be the union of two persons of the same sex(the alternative definition). Further, the second definition is a tautology.