Traditional Marriage

Richard and Mildred Loving, 1965

Richard and Mildred Loving, 1965

In 1883, the Supreme Court of the State Missouri announced that, mixed marriages “cannot possibly have any progeny and such a fact sufficiently justifies those laws which forbid intermarriage of blacks and whites.”  State v. Jackson (1883) 80 MO. 175, 179.

None of the ‘justices’ making the decision believed what they were saying.  Their decision to uphold a law banning interracial marriage was incapable of being defended on any scientific ground.  So they simply fabricated a justification for defending legal segregation in marriage.  Just as Antonin Scalia fabricates pretenses about what the ‘original’ meaning of the Constitution is.

Often, words and phrases are used with a casual disregard of definition or facts supporting the usage.  When people speak of freedom what do they mean by the word?  We all know that the Puritans left England for the new world to gain freedom.  But what freedom did they actually seek.  History tells us that the Puritans wanted at least two freedoms.  They wanted to be free to ignore the liturgies of the Church of England, which they considered to be unbiblical and heretical.

The Puritans also wanted the freedom to inflict their religious beliefs on other people.  They hanged Quakers on Boston Common both to prevent them from preaching Quaker beliefs about the Bible and to serve as a “flag for others to take example by,” that is, as a deterrent to voicing officially wrong religious views.  Freedom for Puritans meant loss of Freedom to anyone who disagreed with Puritan leaders religious views.

In Family Law cases, people often express the desire to have the freedom to raise their children as they choose.  But we do not allow parents strict religious freedom to kill disobedient children.  We don’t even allow them to beat children into obedience or good manners, although it seems to be Biblically commanded.

What is Traditional Marriage?  The phrase Traditional Marriage gets tossed around in public discussions with little focus on what it means.  How far back should we go to find a definition of Traditional Marriage?  If we look back to the Bible, we see that marriage often involved multiple wives.  King David had many.  King Solomon had 700.  And other men throughout the Old Testament had multiple wives.  Biblically speaking, traditional marriage included polygamy.

Although western society gravitated away from polygamy, other religions did not.  Islam is one of the world’s major religions and it allows men to take multiple wives. People who say that Islam is not traditional need to explain what they mean by that word.

As early as 1818, the Cochranite community in Maine believed that the Bible was their authority for spiritual wifery, relying on the Biblical passage about seven women sharing one husband.  Followers of Joseph Smith worked among the Cochranites and after Smith invented the Mormon religion, many Cochranites joined the Mormon migration to Utah.

When Joseph Smith invented the Mormon religion, he practiced polygamy, although the true number of his wives is disputed.  Smith made a pronouncement in 1843 that plural marriage was ordained by God, but that it should be kept secret for the time being (hiding information about one’s life is still a Mormon tradition).  Polygamy was officially announced as Mormon theology in 1852 and was codified into the Mormon Doctrines and Covenants in 1870.  (The same Doctrine and Covenant provides that men who take multiple wives will become gods — specifically stating that such men “are not angels but are gods.”)

It is, therefore, difficult to ascertain a clear religious definition of Traditional Marriage.  So, perhaps, we can find one in historic legal tradition.

The Pilgrims arrived in Massachusetts Bay in 1620.  The Puritans settled in what is now Boston in 1630.  But it wasn’t until 1686 that the Massachusetts colonial assembly passed a bill allowing ministers to solemnize marriages.  The devoutly religious Puritans believed firmly that marriage was a civil institution, to be regulated by the civil government, rather than by the church.

California derived its legal system not from the Puritans or from the English roots that informed the East Coast colonies.  The initial California system was adopted from the Spanish legal system, which was in place when California wrested its independence from Spanish rule.  But when writing Californias first constitution, a decision was taken to welcome people from many faith traditions.  Article XI, 12 of the 1849 California Constitution says:  ”No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect.”  Are there any “Traditional Marriage” proponents who do not claim that their definition of “Traditional Marriage” are religiously ordained?

In the spring of 1850, California enacted An Act Regulating Marriages.  The first sentence of the Act provided: “Marriage is considered in law as a civil contract, to which the consent of the parties is essential.”  Thus the California Legislature in 1850 agreed with the Pilgrims and Puritans of the early 17th Century that marriage was a civil matter, rather than a religious one.

In 1852, the California Supreme Court wrote that, “Marriage is regarded as a civil contract, and no form is necessary for its solemnization. If it takes place between parties able to contract, an open avowal of the intention, and an assumption of the relative duties which it imposes on each other, is sufficient to render it valid and binding.” Graham v. Bennet (1852) 2 Cal. 503, 506.  The California Legislature and Courts have revised this position repeatedly, beginning in 1895.

Should Traditional Marriage include the descriptions and restrictions placed on marriage by the Massachusetts Bay colonists, or the 1850 California Legislature?  Should we accept all of their rules for marriage?  In California’s Act Regulating Marriage, the Legislature also said, “All marriages of white persons with negros or mulattos are declared to be illegal and void.”  Not voidable, but void, and illegal.  In 1691, the Virginia colony prohibited marriage between white and black partners.  In 1866, after the Civil War, the state of Alabama made interracial marriage a felony.  In the case of Green v. State, the Alabama Supreme Court ruled that an interracial couple could not form a civil contract of marriage.  Since the laws and cases mentioned here were all closer in time to the founding of the nation than we are today, should their racial segregationist view of Traditional Marriage be more acceptable than modern race neutral views?

In The Body of Liberties of 1641 the Massachusetts Bay colonists declared that committing adultery was a capital offense.  The 1850 California Legislature passed An Act Defining the Rights of Husband and Wife.  Section 6 of that Act provides, “The husband shall have the management and control of the separate property of the wife during the continuance of the marriage.” Do these legislative pronouncements define Traditional Marriage better than our current laws which consider adultery to be a matter for husbands and wives to address between themselves, or that allow women to control their own separate property?

Most references to Traditional Marriage today are made by for-profit businesses and televangelists, who use the phrase to raise millions of dollars in support of business plans based on promoting discrimination against people who want to get married.  The 1691 Virginia law prohibiting marriage between Africans and whites was part of several efforts to make slavery a more profitable business model.

Tom HallThe so-called liberal media never asks the Traditional Marriage campaigners to define their phrase, or to say which features of Traditional Marriage they espouse.  But for all of the major Traditional Marriage mouthpieces, the phrase is simply a device to justify bigotry, just as was the Missouri Supreme Courts fanciful pretense that interracial couples cannot possibly have any progeny.

Tom Hall

Posted: Tuesday, 24 July 2012

Published by the LA Progressive on July 24, 2012
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About Tom Hall

Tom Hall is a family lawyer in West Los Angeles. He is from Boston, and was raised in Friends Meeting at Cambridge (Quakers) to think that religion was a progressive force. During the Vietnam War, he organized draft counseling centers and worked with groups training people in techniques for disciplined nonviolent demonstrating. After the war, he became just another yuppie working to make a comfortable life. The Bush administration shocked him back into social concerns. Now he’s working to see that the Obama administration lives up to its progressive promises. Tom can be reached at ProgBlog@aol.com