Pride flag

(WOMENSENEWS)– In oral argument before the Supreme Court over whether same-sex marriage should be legal across the nation, attorney John Bursch argued for the state of Michigan that the answer should be no. He claimed that marriage had existed for millennia to ensure that parents bonded with their children.


The argument has a warm, fuzzy Dr. Spock-ian ring to it, but the reasons for the invention of marriage have almost nothing to do with the welfare of children.

"Whenever people talk about traditional marriage or traditional families, historians throw up their hands," Steven Mintz, a history professor at Columbia University, was quoted by The Week as saying a couple of years ago. "In the ancient world, marriage served primarily as a means of preserving power, with kings and other members of the ruling class marrying off daughters to forge alliances, acquire land and produce legitimate heirs."

The action that drew forth the argument from the Michigan attorney was a Supreme Court decision to grant four petitions seeking a review of a federal appeals court ruling that found there is no federal right to same-sex-marriage. The 6th Circuit Court of Appeals overturned lower court rulings that did find a federal right to same-sex marriage. The 6th circuit disagreed with four other federal appeals courts which have found same-sex marriage to be a right protected by the U.S. Constitution.

Historian Gerda Lerner, author of "The Creation of Patriarchy," notes in a summary of that book’s findings that marriage emerged as humans moved from the hunter-gathered lifestyles they had followed for eons into the agricultural age and a more settled life. Male herders watching their animals began to realize that it took a union of male and female to produce offspring.

These men invented the notion of private ownership; of their own herds and fields. They wished to pass their property to their own blood kin and from this desire grew the imperative that women remain virgins until marriage and to refrain from adultery after marriage. Otherwise, a wife’s infidelity would threaten the legitimacy of a son’s paternity in a society increasingly focused on war, wealth and inheritance. Henry VIII of England beheaded two wives, Anne Boelyn and Kathryn Howard, for adultery (real or imagined).

Control, Not Babies

Marriage was much more about controlling women than about raising happy, healthy babies to bond with.

Supreme Court Justice Ruth Bader Ginsburg, who has officiated same-sex marriages, most recently one last week, noted in oral argument that marriage was "a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him."

Historian Stephanie Coontz, author of "Marriage: A History," wrote in defense of same-sex marriage a couple of years ago, pointing out in the Washington Post that traditional English and American law gave the husband sole control over all property that his wife brought to their marriage and any income she earned during it. "Husbands had the legal right–and the duty–to impose their will by force. A husband couldn’t cede any rights to his wife, said the courts, ‘because that would presuppose her separate existence, according to Blackstone’s Commentaries on the Laws.’ A married woman was not a separate person–she was a wife attached to a man."

In the 19th century, Coontz writes that the power equation didn’t change; but the rationale for it did. "Men were recast as benevolent breadwinners who exercised authority not because they were the patriarchal bosses of the family labor force, but because they were women’s natural providers and protectors. Women were frail dependents whose nurturing nature and innate sexual purity predisposed them to sweet submission."

One major argument against giving women the vote was that the gentle keepers of the hearth would be brutalized and sullied by having to go into the ballot box and out into the public sphere.

But the biggest change in marriage occurred in the mid-to-late 20th century. It was the shift away from power to love, from control to contentment.

"Adopting love as the basis for marriage meant other changes, too, especially greater acceptance of the idea that men and women had a fundamental right to marry, even to people of whom their parents–and society–disapproved," writes Coontz.

In 1967, the U.S. Supreme Court ruled it was unconstitutional for states to prohibit interracial marriage. The Supremes also voided a Wisconsin law prohibiting marriage by parents who had not met prior child-support obligation. In 1987 the justices upheld the right of prison inmates to marry.

Majority in Agreement

If felons can marry, why not gay and lesbian couples who are upright citizen, holding down jobs, paying taxes, many raising happy children, going to PTA meetings and being good neighbors?

Why not indeed? Some 61 percent of Americans agree, according to recent polls.

Most of us have relatives, children, friends or co-workers who are LGBT people, and when they marry–as they have in Massachusetts for years–the skies do not fall. Life goes on much as before, except that a bunch of people are happier.

Journalist E.J. Graff remembers how it used to be. "I was spat upon," she wrote a couple of years ago in The American Prospect. "Right here in liberal Massachusetts I was called hideous things walking down Cambridge’s Oxford Street. I learned to beware of teenagers, especially a particular gang who lived on my street. I worried about my safety at night. I was never physically attacked, thank God, and neither was anyone I knew. But we knew it was possible. The looks of disgust, disdain, contempt, hatred, fear–any hated minority (immigrants, Muslims, African Americans) knows how those slice into your insides."

Times have changed. Massachusetts legalized same-sex marriage. The military policy of "Don’t ask, don’t tell" was repealed. The section of the Defense of Marriage Act (DOMA) that barred married gays and lesbians from receiving federal marriage benefits was ruled unconstitutional.

Graff wrote, after the DOMA decision, that it was "as if the table had tilted and absolutely everyone rolled down to my side. People who were warning gay people not to push so far so fast just 10 years ago are now gobsmacked by the irrationality of the opposition."

Hopefully, one of those people will be Chief Justice John Roberts. Does he want to be one of those who–to use Graff’s words–are gobsmacked by history? Does he wish his court to be counted among the supporters of an argument that already lies on the ashcan of outmoded ideas?

It’s said that the Supreme Court follows the elections returns. The Supremes also read Pew, Gallup, Rasmussen, Harris et. al.

And guess what, if the court does rule in favor of same-sex marriage in coming weeks, reams of research tell us the kids will be just fine.

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