A Historical Guide to the Future of Marriage for Same-Sex Couples

By Goldberg, Suzanne B. | Columbia Journal of Gender and Law, Winter 2006 | Go to article overview

A Historical Guide to the Future of Marriage for Same-Sex Couples


Goldberg, Suzanne B., Columbia Journal of Gender and Law


History and tradition have emerged, together, as contemporary flagship arguments for limiting marriage to different-sex couples. (1) According to advocates of "traditional marriage," same-sex couples can be excluded from marriage today because marriage always has been reserved to male-female couples. (2) Further, some contend, the restriction of marriage to different-sex couples has long been understood as necessary to provide channels to control naturally procreative (i.e., male-female) relationships. (3)

However popular these claims might be in op-ed pieces and on talk radio, when they are made in the litigation context, the question is not whether they have rhetorical appeal but rather whether they can explain the State's different marriage rules for gay and non-gay couples. For this purpose, broad-brush invocations of marriage's history will not suffice.

Yet, it is precisely these sorts of superficial references to tradition that have captivated courts deciding a variety of challenges to marriage restrictions. Pick a case that touches on marriage from federal or state court, from the nineteenth or twentieth century, and there is a reasonable chance that marriage will be described as a fixed, transhistorical institution that is foundational to civilization. Typical is the assertion of the Supreme Court in Skinner v. Oklahoma, the first case to identify marriage as a fundamental right: "Marriage and procreation are fundamental to the very existence and survival of the race." (4)

A cohort of more recent cases that specifically address marriage laws' exclusion of gay and lesbian couples follows this course. Courts in New York, New Jersey, and Arizona, among others, have rejected constitutional challenges brought by gay and lesbian couples on the grounds that the different-sex couple requirement has long been a part of the state's marriage law. (5)

This glib treatment of marriage as historically static and at risk of disintegration should same-sex couples be permitted to marry has caused considerable frustration among scholars of history and family law. There is, of course, the general point, which the Supreme Court has endorsed repeatedly, that history alone cannot justify retention of discriminatory rules. (6) More significant, however, is the reliance on an inaccurate history of marriage. This history, it mms out, contradicts directly the argument that marriage has a set of fixed, unchangeable criteria that represent its essence, including the different-sex restriction at issue in the contemporary marriage litigation.

In fact, marriage has undergone near-constant evolution to the point that marriage today bears little resemblance to marriage in the past. One hundred fifty years ago, a woman lost virtually all of her independent legal identity upon marriage. Even fifty years ago, in numerous jurisdictions, access to divorce was extremely limited, rape within marriage was not a crime, and bans on interracial marriage remained in force. The real history of marriage is thus an extended and consistent account of change to elements of marriage once considered essential. (7)

Because misconceptions of marriage's history have played such an important part in justifying the male-female marriage eligibility requirement, history and family law scholars have become part of the fabric of the litigation over the rights of same-sex couples to marry. In most of the major marriage cases across the country, these scholars have filed briefs to make the basic, yet critical, point that history does not bear out the claim that rules of marriage that were considered fundamental in the past should survive challenge by virtue of their vintage. (8)

The brief that follows this essay, which was filed in New York's appellate court, does this work by demythologizing the history of marriage in New York. It shows that the elements of marriage in New York--including those once thought essential, such as husbands' control over their wives in myriad respects--always have been subject to change. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

A Historical Guide to the Future of Marriage for Same-Sex Couples
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.