Why is it that one of the most powerful arguments against opponents of same-sex marriage so often gets completely ignored by supporters of same-sex marriage?
Once again, during yesterday's oral arguments in Hollingsworth v. Perry, a social conservative, Justice Alito, threw out this canard:
"Traditional marriage has been around for thousands of years."This false framing of the marriage issue presumes that opposite-sex marriage has remained static and unchanged throughout human history and the development of civilization and that only now with the advent of same-sex marriage is this institution about to change, when nothing could be further from the truth.
Women know better.
Certainly, the opposite-sex "traditional" marriage of today would look completely different to a woman from thousands of years ago who may have been required to bring a dowry (which would be paid back to the father by the woman's husband if she died) into the marriage.
The "traditional" marriage of today would look completely different to a woman from hundreds of years ago who lived under the harsh conditions of chattel marriage, where a married woman was nothing more than the property of her husband by virtue of her marriage.
Certainty the "traditional" marriage of today would be very foreign to a woman in the early United States before the advent of Married Women's Property Acts passed on a state-by-state basis during the 1800s, where married women's individual rights were basically non-existent thanks to a legal theory known as Coverture. This theory is enthusiastically described in William Blackstone's legal commentaries as such:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.Yes, the female sex was such a favorite under "traditional" marriage understandings of the past that she was not able to keep her earnings or get a job or own a business or own a home in her own right.
These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favourite is the female sex of the laws of England.
Of course, maybe it is too much to expect the social conservative men of the Supreme Court to comprehend just how radically marriage has changed over the years, at least for women, when they can't even wrap their brains around the concept of menopause.
MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.
Suppose, in turn --
JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
MR. COOPER: No, Your Honor, it would not be constitutional.
JUSTICE KAGAN: Because that's the same State interest, I would think, you know. If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage. So why is that different?
MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional --
JUSTICE KAGAN: No, really, because if the couple -- I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.