Posted on October 7, 2014
“The very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.”
On Monday, the Supreme Court brought the legal battle over marriage equality just inches from a conclusion. By refusing to review several court decisions holding that the Constitution requires gay couples to be treated the same way as straight ones, the justices effectively increased the number of states where same sex marriage is legal to 30. This is the way marriage discrimination ends, not with a bang, but a whimper.
Extending full marriage rights to same-sex couples would not fulfill the Constitution’s promise of equality, it would “redefine marriage,” in the eyes of those judges still willing to defend discrimination. And this redefinition is not something that falls within the purview of the judiciary. As Justice Samuel Alito argued in 2013, supporters of equality “implicitly ask us to endorse” a more expansive definition of marriage and “to reject the traditional view.”
Yet even if the Supreme Court concedes this point, that providing the full blessings of liberty to gay men and lesbians would somehow change the way we define the word “marriage,” this objection makes little sense. The reality is that the way we define the concept of “marriage” bears little resemblance to the way it was defined just a few decades ago, and that the courts have played an active role in redefining the institution for much of American history. Not so long ago, for example, marriage was defined as a fundamentally sexist institution where the wife was both financially and sexually subservient to her husband. Now, however, most Americans recognize these gender roles as outdated and immoral. The definition of marriage changed, and America is a stronger nation because of it.
The Blackstone quote that precedes this article captures the way marriage was defined by the English colonists who formed the United States — or, at least, it captures the way marriage was defined if you were a woman. It also captures how their descendants defined marriage for much of American history.
In recent weeks both companies have rolled out new software enhancements for their respective smartphones that make it harder for police or federal agents to obtain emails, photos, or call information that may be stored on the devices. The encryption is also designed to protect against fraud, theft, and other digital invasions. The move was widely applauded by privacy rights advocates, who in the wake of revelations about NSA surveillance practices on the U.S. population made possible by whistleblower Edward Snowden say that the American people are rightly concerned about the ways in which government agencies and law enforcement are using digital means to spy on their personal lives.
But in statements on Thursday, Comey criticized the companies. The head of the FBI said that his offices have already been in touch with Apple and Google to express the government’s dismay and told reporters he could not understand why companies would “market something expressly to allow people to place themselves beyond the law.”
The Washington Post reports:
Comey’s remarks followed news last week that Apple’s latest mobile operating system, iOS 8, is so thoroughly encrypted that the company is unable to unlock iPhones or iPads for police. Google, meanwhile, is moving to an automatic form of encryption for its newest version of Android operating system that the company also will not be able to unlock, though it will take longer for that new feature to reach most consumers.
Both companies declined to comment on Comey’s remarks. Apple has said that its new encryption is not intended to specifically hinder law enforcement but to improve device security against any potential intruder.
Though Comey may not understand why such devices are increasingly appealing to customers, Apple’s CEO Tim Cook seems to understand the reason very well.
In an open letter that accompanied the company’s announcement of the new encryption service last week, Cook was explicit about understanding his customers’ desires for increased privacy.
At Apple, Cook wrote, “we respect your privacy and protect it with strong encryption, plus strict policies that govern how all data is handled.”
He also addressed the concerns raised over corporate complicity with government agencies that have been raised in the last 16 months, stating, “I want to be absolutely clear that we have never worked with any government agency from any country to create a backdoor in any of our products or services. We have also never allowed access to our servers. And we never will.”
Apple’s new move is interesting and important because it’s an example of a company saying they no longer want to be in the surveillance business–a business they likely never intended to be in and want to get out of as quickly as possible.
This was a big step for Apple, and one that likely required significant engineering work. What is so interesting and smart about this move is that rather than telling the government that they no longer want to help the government, they re-architected iOS so they are unable to help the government. Think of it as Apple playing a game of chicken, and the company has just thrown the steering wheel out of the window.