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 Now, however, most Americans recognize these gender roles as outdated and immoral.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 Husband’s Property
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.