Judge Vaughn Walker's decision in the California same-sex marriage case has sure set off the right. Today gay marriage, tomorrow, the end of Western civilization as we know it. Prop 8 defenders were thoroughly Boiesed (a new verb meaning to have your groundless assertions subjected to merciless cross examination by lawyer David Boies) on their argument that same-sex marriage hurts kids raised by gay couples. So now gay marriage opponents need a new cause. If the kids are all right, same-sex marriage must threaten the other helpless population—women.
Heterosexual marriage is necessary—and must be protected by being exclusively available to heterosexual couples—the new argument goes, because those naughty heterosexuals have selfish sexual agendas. In the New York Times, Ross Douthat writes that males are at the mercy of their "impulse toward promiscuity." This makes men naturally incline toward polygamy, prostitution, and concubinage.
Females, more strategically, have an "interest in mating with the highest-status male available." By contrast, George W. Bush Institute adviser and commentator Sam Schulman attributes to women no agency. They need marriage, he asserted in the Christian Science Monitor last week, because otherwise a man "would turn her into a slave, a concubine—something less than fully human." Not just any form of marriage will do. Douthat's conception of marital union requires "two sexually different human beings" to "give up their reproductive self-interest" and "commit to lifelong fidelity and support." Schulman's marriage must make women "sacred" and "protect" them.
For conservatives, the argument that only traditional marriage can protect women has the virtue of targeting two of their favorite demons: gays and uppity women. Going back to the days before Massachusetts legalized same-sex marriage in 2004 isn't enough to undo the harm the modern world has done to this essential institution. The best reset point, from the point of view of the right, would probably be before 1809. That's the year Connecticut became the first American state to pass a law allowing married women to control property by allowing the sacred little darlings to make their own wills. Before 1809, under the common law concept of coverture, married women had almost no property rights of their own. They couldn't sign contracts or keep their wages. Their legally enforced role was to take care of the household and see to her husband's and children's material needs. It was the husband's role to provide for his family, with wages he earned and distributed as he saw fit (and also, of course, to vote).
As Harvard historian Nancy Cott testified in the Prop 8 trial, marriage, an ever-evolving institution, changed enormously in the 19th century as laws like Connecticut's spread to other states after the enactment of the influential Married Women's Property Act in New York in 1848. Starting with that repeal of coverture and culminating in modern feminism, the concept that marriage joined together human beings with completely different roles and responsibilities took a big hit. With marriage evolving away from strict gender roles and a physically strong protector for a weak dependent, as Judge Walker figured out, there was no reason that modern marriage had to exclude gays and lesbians—humans not divided by sex.
Schulman and Douthat concede the force of the argument that once people dismantled the strict barriers between male and female gender roles in marriage, there was no reason that marriage should require one person from each category—male, female—to be faithful to its purpose. Their answer is to take away the premise of gender fluidity. Douthat suggests an unbridgeable gulf between males and females based on their so-called "Darwinian" sexual agendas. Schulman, with a bizarre disregard for law enforcement, suggests that only marriage law or a woman's family can protect women from rape.
But the concept of marriage that Douthat and Schulman extol is vastly worse than the dangers they dramatically describe. They argue that in its heyday marriage protected women against rape, concubinage, or prostitution. But until the 1970s, marriage was actually an exception to the crime of rape. In every American state, a husband could rape his wife at will repeatedly. In 1975, South Dakota became the first state to enact a law against spousal rape. North Carolina was the last in 1993. In a majority of states, rape inside marriage is still treated as a less serious offense than rape outside it. So rather than protecting women against rape, old-fashioned marriage actually makes them more vulnerable to it.
Douthat thinks that all women are looking for permanent sugar daddies ("high status men"), but men just wanna have fun. So, he contends, marriage helped women because it forced men to be faithful. It turns out that marriage actually helps men force women to be faithful. During most of the period of idealized Douthat marriage, a husband who observed his wife in the act of adultery had a defense to the murder of the cheating wife or her lover. Not satisfied with the possibility of acquittal or a reduced sentence, several American states made the murder of an adulterer no crime at all. Women, however, could not invoke the same defense. Finally in the late 19th century, the states moved to a gender-neutral defense to a murder charge of "reasonable provocation" in the event of adultery. But it mostly still applied in cases of men killing their wives. When the United Kingdom finally repealed its adultery provocation defense in 2008, the Telegraph reported that it was the most common defense for the approximately 100 Brits a year who killed their wives.
A law against spousal rape. A law against spousal murder. A paycheck of her own. And egalitarian marriage. Once women got political power, they insisted on being protected by the ordinary privileges of citizens of a modern democratic society rather than a husband fenced in by the medieval kind of marriage to which Douthat and Schulman would return. Uppity women changed marriage a lot. If they hadn't, why would any gay or lesbian person want a share in it?
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.