Evolving marriage

An article summarizing the testimony by Nancy Cott, one of the PRop8 trial's expert witnesses:

Marriage has evolved into a civil institution through which the state formally recognizes and ennobles individuals’ choices to enter into long-term, committed, intimate relationships and to build households based on mutual support. With the free choice of the two parties and their continuing consent as foundations, marriage laws treat both spouses in a gender-neutral fashion, without regard to gender-role stereotypes.

At least, most of the time. Except in Massachusetts, Iowa, Vermont, New Hampshire, Connecticut, and Washington, D.C., men may only marry women, and women may only marry men. This requirement is an exception to the gender-neutral approach of contemporary marriage law and to the long-term trend toward legal equality in spouses’ marital roles.

Those who would maintain this exception argue that the extension of marital rights to same-sex couples would render marriage meaningless. They say that the sexual union of a man and a woman, capable of producing children, is essential to marriage and is its centerpiece.

The history of marriage laws tells a more complex story. The ability of married partners to procreate has never been required to make a marriage legal or valid, nor have unwillingness or inability to have children been grounds for divorce.

And marriage, as I have argued, has not been one unchanging institution over time. Features of marriage that once seemed essential and indispensable proved otherwise. The ending of coverture, the elimination of racial barriers to choice of partner, the expansion of grounds for divorce—though fiercely resisted by many when first introduced—have strengthened marriage rather than undermining it. The adaptability of marriage has preserved it.

Marriage persists as simultaneously a public institution closely tied to the public good and a private relationship that serves and protects the two people who enter into it. That it remains a vital and relevant institution testifies to the law’s ability to recognize the need for change, rather than adhere rigidly to values or practices of earlier times.

Enabling couples of the same sex to gain equal marriage rights would be consistent with the historical trend toward broadening access. It would make clearer that the right to marry represents a profound exercise of the individual liberty central to the American polity.

The legal issue behind Prop8: strict scrutiny

The legal issues behind the Prop8 case, from the Keen News Service

Judge Walker will, of course, decide. The primary questions before him are whether California’s ban on same-sex marriage violates the federal constitution’s guarantee to equal protection and due process.....

“I’ll be floored if he does not offer the Ninth Circuit [U.S. Court of Appeals] his conclusions about whether very rigorous scrutiny should be applied to antigay discrimination,” said Lambda’s Pizer.

Kendell said she thinks Walker will use “some higher level of scrutiny” than just a simple “rational” one—the easiest level to satisfy. The higher levels of review—quasi and strict—she noted would be “enormously helpful in challenging all manner of laws that discriminate based on sexual orientation.”

The highest level of review—strict scrutiny—is applied to laws that disfavor persons on the basis of race, and Olson relied heavily on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has “traditionally” been understood to be one man and one woman does not constitute a reason to ban same-sex marriage.....

But if Walker applies the lowest level of scrutiny, said Kendell, “virtually every state law we attack survives because, at the rational basis level, laws essentially get a free pass.

Greatest hits from the Prop8 trial

The Courage Campaign has assembled a list of some of the highlights of the Prop8 testimony.

I just want to get married…it’s as simple as that. I love someone. I want to get married. My state is supposed to protect me. It’s not supposed to discriminate against me.” – Plaintiff Paul Katami

Check it out for a summary.