Law and Society at the Altar

It seems that the President, perhaps prompted by Crazy Ol' Joe Biden, has revised his stance on gay marriage. Perhaps you heard something about this. As is often the case, I'm stuck between feeling like it would be foolish not to write anything about this, and worrying that I can't find something to say that hasn't already been said by someone else - and probably said better. There are, however, a few points worth making about the interrelationships between law and society that come to a head in the debate on marriage. Even if some of them aren't new or groundbreaking, I think they're worth putting on the table. If only because we need fewer people saying mind numbingly stupid things like allowing gay marriage means there's no principled reason to prevent someone from marrying a goat, or ice cream. 

[Before moving on, a note to Dr. Daniel Heimbach, picture above: have you ever been able to enter a non-marital contract with a goat or an ice cream cone? That's what I thought.]

The Marital Relationship is Contingent, Variable, and Constructed

It has meant different things at different times to different people in different societies. Marriage was primarily a tool for consolidating political power for much of history. Have a daughter and a territory you would like to annex? Marry her off to someone in that family with a large dowry in exchange for political control. Done. It's what allowed the Hapsburgs to control much of Europe while fighting a surprisingly low number of actual wars (though, yes, they did that too). And yes, I cede the irony of having marital coupling be the primary political tool of people who looked like this:

Spain's Charles II, as you can see, was not a looker. But I seem to have digressed. The point was that marriage is NOT, as certain critics would have you believe, an ancient institution that has always been considered the union of one man and one woman for procreative purposes. It has not infrequently been the union of one man and one woman for economic or political purposes, the union of one man and one woman with many other women on the side for procreative and, let's face it, recreational purposes. It has, for most of our particular legal history (English common law), been not so much the union of one man and one woman as the eradication of a woman's legal identity and the subsuming of her legal person under the aegis of the mans. 

Upon marriage, a woman ceased to be her own person in the eyes of the law. This practice - known as coverture - was old hat when Blackstone wrote in the 1700s and wasn't really eradicated in the United States until the late 19th/early 20th century. So, even in the narrow context of American history, marriage isn't historically any one thing. Until about 100-120 years ago, it was the assimilation of a woman's identity into a man's (which is a slightly nicer way of saying the eradication of her legal identity). It was about property, patriarchy, and economics, and of course about procreation. 

I could go on. Plural marriages have been "normal" in one form or another in western culture from Biblical history to the present. In fact, as a bit of an aside, the biblical story about Onan that is most often associated with an injunction against... let's say "self-pleasuring," isn't really about that at all. It's about Onan's failure to perpetuate the family line by impregnating his dead brother's widow. That used to be required as a part of marital practice, but I suspect it would raise some eyebrows on the Beltway these days. Societies have constituted differing facades of marriage - and differing legal treatments thereof - over and over throughout history. 

The point is that to say marriage is a concept that transcends historical pressures and vagaries is simply wrong. It has been as flexible a social institution as any, and limiting it to one particular "normal" isn't just myopic and stubborn, it's incorrect. 

Traditional Reasons for State Intervention Have Eroded

State regulation of married/intimate life rests on what's known as "police power;" that is, the state's need/right to regulate society for its own health, safety, and morals. Before, say, the 1960's

there were two factors that made this at least a defensible connection. The first was societal: prior to the sexual revolution, we as a society constructed the marital bed as the only site of licit sexual practice. Now, there was obviously lots of sex had outside the confines of the marital relationship (isn't that right, Mr. Ambassador?)

but that's where we decided that acceptable sex was to be had. Part of this was a societal need for the "legitimacy" of children; we wanted to know that a child was the offspring of a particular (married) couple. Because there were no reliable means of birth control until pretty late in the game, controlling parentage meant confining acceptable sexual relationships to marital sexual relationships. 

But two intertwined changes over the last fifty years have wiped this almost totally off the face of the map. It's impossible to say what the relationship between the two is, so I'll just go for it. First, we no longer think that "acceptable" sex is necessarily in the context of a martial relationship. In the aftermath of the Sexual Revolution, we can take lovers and bedmates in a far wider range of scenarios than we used to, and without fear of being social ostracism.

[N.B.: Yes, there are still sexual politics surrounding male-female relationships, double standards, "slut-shaming," (which only happens to women), etc., etc. The point isn't that we've ceased to treat men and women differently, but that we've expanded the definition of licit sex for both sexes.]

Simultaneously, the technological advancements in birth control have erased the necessary connection between sex and reproduction. It is no longer true that a sexual relationship is likely, over the course of not that much time, to become a familial relationship. This obviously reinforces (and is reinforced by) the social expansion of acceptable sexuality. 

Relatedly, our laws have evolved over the last fifty years to largely remove morality as a justification for state intervention. The Supreme Court struck down laws against contraception for married couples (Griswold v Connecticut), and unmarried couples (Eisenstadt v Baird), has struck down anti-abortion statutes (Roe v Wade; Planned Parenthood v Casey), and most recently has struck down laws banning sodomy (Lawrence v Texas). In Lawrence, though, it's possible we saw a new turn. 

Griswold, Eisenstad, Roe, and a host of other, older cases, rely on the concept of privacy. "Private" behavior is at least consistent with the idea that we want to regulate or outlaw it, but simply can't because it's beyond our power. Lawrence, however, emphasizes "liberty" far more than "privacy," which could signal a move to a more libertarian social sentiment. If so, it may be more that we don't want to regulate intimate behavior; Kennedy's opinion explicitly says that - by itself - moral disapproval isn't a good enough reason to outlaw something. 

So, with procreation de-coupled from sex, sex de-coupled (ha!) from marriage, and morality allegedly out as a legal justification, it seems we no longer have particularly good reasons to under-gird state regulation of the marital relationship. So... what are we still doing?

Incrementalism v. Civil Rights

Again, I could go on, and any pollster or politico will tell you that the gay marriage fight - though it rages on - is only matter of time. As a pure matter of demographic shift, it will happen. The conversation this week, however, has been on the one hand President Obama's Federalist argument that this is best resolved on a state-by-state basis, and on the other the very reasonable point that if marriage is a civil right, you don't get to vote on it. My apologies to the Rachel Maddow meme. 

There is a good argument, though, to be made for the state-by-state incrementalist approach. Think about what abortion has meant in the almost 40 years since Roe. A one-size-fits-all judicial fiat didn't end the fight; it threw gasoline on the fire. It's still a hot button wedge issue. Compare this with the point I made a month ago about Rickey, Robinson, and the Supreme Court's end of desegregation. The Court did wait until the nation's polling indicated readiness of desegregation, but the Civil Rights Act of 1964 fractured the democratic party, which only won a single Presidential election between 1964 and 1992. 

Even when something is inevitable, even when it's right, pushing for it too early can set back the cause. This is why gay rights organizations were wary - at best - about the Boies/Olsen led lawsuit to overturn California's Prop 8 (last seen winning a narrowly tailored victory at the Ninth Circuit; stay tuned).

I don't know how long it will take for gay marriage to gain nationwide acceptance, but I'm fairly certain it's a "when" not an "if." Society has changed too much, and the state's relationship to marriage eroded and shifted to far, for it to be otherwise. Whether you herald Obama's announcement this week, wish it had been stronger, or disagree altogether, it was a step. Maybe symbolic more than legal, but a step nonetheless.