October 8, 2007
Conaway v. Deane
Well, it took me a while but I am finally writing more about the Maryland same sex marriage case. The most striking justification for denying the right to same sex marriage in this case is the old tried and true "procreation" defense.
The court has no problem stating that marriage is for procreation (at *77 of the opinion), thus, same sex marriage is not a fundamental right. This argument seems quite outdated. Surely, we quite often look to tradition when determining whether rights are fundamental. However, we also must recognize that the Constitution must adapt to changing times. Furthermore, was marriage ever solely about procreation? I am not a historian, but I am fairly certain that one of the main purposes of marriage was also financial in the past. See, e.g., E.J. Graff, What Is Marriage For? (2004) (note that the entire first chapter is devoted to discussing "money" as a historical reason for marriage).
Today, of course, it seems silly to say that the main purpose of marriage is for procreation. I like to think that the goal of marriage is love, companionship, and the like. Many married couples never have children and many others have them outside of wedlock.
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Hello. I focus on Maryland Family Law with a publication that was launced in 1997. We've been carefully watching this case since it began in 2004.
Even more stunning than the "procreation" justification for upholding the ban on gay marriage was the majority's legal contortions to avoid applying the Maryland Equal Rights Amendment. In the end, the gay plaintiffs won on their ERA argument alone (in the lower court). To reverse that decision, the majority had to find a way to remove the claim from the reach of the ERA. Finding no legislative history to be helpful, the majority read newspapers from 1972 when the bill was passed. NEWSPAPERS! The majority used various articles to make a stunning conclusion: the Maryland ERA was passed only to allow women to be treated equally as men. Ignoring years of precedent that had analyzed the ERA through a very broad judicial lens, they sharply constricted the ERA's coverage so that it would not apply in gay marriage. Thus, they unveiled their "separate but equal" theory to justify the decision.
The dissenters carefully pointed out the majority's weak analysis and quite forthrightly, accused them of reaching a conclusion first, then finding law to back up their holding.
A very poorly written opinion, in the end, utilizing the votes of two judges who had already retired to make the majority.
Posted by: B.A. | Oct 9, 2007 6:11:09 AM
As far as the spouses are concerned, marriage may be about love and companionship -- but that's never been the state's interest. Indeed, in the bad old days of fault-based divorce, married couples were denied a divorce if both had committed fault. Even if they despised each other, they were stuck with their married status.
In their introduction to "A Reader on Family Law," Eekelaar and Maclean note the "universal propensity of human cultural behavior to regulate reproduction."
Cohen wrote in "Rhetoric, the Unnatural Family, and Women's Work," (1995 Va. L. Rev.) that "Marriage is a cultural invention. It is designed to harness men's energies to support the only offspring they may legitimately have, or are likely to have, legitimately or otherwise, in a world in which marriage is the norm."
Margaret Mead made similar observations.
It was necessary to "harness men's energies" into marriage so that mothers and children would have a claim on the property and labor of a man; so that the man could be reasonably certain that he was laboring on behalf of his own offspring; and so that he could be sure that his property was passed to the next generation of his own kin.
Before the state began to regulate marriage, it was an entirely religious institution. It was not until 1836 that England established a formal system of registering marriages, births, and deaths (as opposed to having this events recorded in church records and family bibles). The need to keep such records flowed directly from the state's desire to impose support obligations on responsible individuals so that the support of dependent women and children did not fall on the state.
So, yes -- marriage has historically been about money and procreation.
On the other hand, traditional state-sanctioned (as opposed to religious) marriage has been "under attack" forever. There were the Married Women's Property Acts that -- shockingly! -- allowed married women to own property and make contracts. We now permit prenups when originally parties were not allowed to "subvert" the institution of marriage with private agreements. No-fault divorce is now the norm.
Aside from these changes in the law, societal changes have altered the meaning and structure of marriage and family -- abortion and contraception, longer life expectancies, advances in reproductive technology, changing sexual mores, the end of criminalizing adultery, fornication, and sodomy, and so on.
My rebuttal to the "marriage is for procreation" argument is this -- perhaps marriage was, traditionally, for procreation and enforcement of the resulting support obligation. It no longer is.
Procreation routinely takes place outside of marriage -- frequently resulting in birth or adoption into a home with parents of the same sex. Opposite-sex married couples frequently become parents via adoption, or using artifical insemination, in vitro fertilization, or surrogacy.
Many people marry who do not intend to or cannot have children. A growning segment of this population is among older people, divorced or widowed, who marry for reasons entirely related to procreation.
Since it is a fact that marriage and procreation are now untethered, the historical justification no longer applies.
What other purposes does marriage serve? Once this question is explored, it becomes obvious that those other purposes (mutual support, access to health insurance and other benefits, love and companionship, inheritance, medical decision making, etc.) apply just as readily to same-sex as to opposite-sex couples.
Fundamental right of same-sex marriage? Maybe not "firmly rooted in this nation's history and tradition." But is there any rational basis for denying these benefits to competent adults who choose to build a life together?
Like the Married Women's Property Acts, extension of marriage to include same-sex couples is just the latest step in the continuing evolution of the "cultural invention" we call marriage.
Posted by: Janice Pea | Oct 9, 2007 8:51:59 AM