Redefinition of marriage - history lesson and debate
Commenter Zimzo just submitted an excellent comment on my recent post about the marriage debate (you should read that thread first), and instead of jawing back and forth in the comments I'll make this one a new entry and respond point by point. Zimzo's essay is in the quote boxes:
The reason assault and battery is not specifically defined in the Virginia Code is that it was previously defined in English common law from which the code derives, namely the "an intentional harmful or offensive contact" or the "apprehension" thereof. Society has agreed on that definition for centuries and the only comment the Virginia code makes on that definition is to protect teachers and other school personnel from being charged for assault and battery in the reasonable prosecution of their duties. Otherwise, there is a broad consensus on the definition.
But when it comes to marriage under English Common law, the definition has undergone dignificant changes. In fact, the definition usually relied on in Great Britain and British Commonwealth countries is the one Lord Penzance formulated in Hyde v Hyde and Woodmansee in 1866, to wit that marriage is "The voluntary union for life of one man and one woman, to the exclusion of all others." Obviously, this definition was formulated long after English common law had any influence on Virginia code and we can see already that even this definition has undergone a significant alteration in that the legalization of divorce makes the phrase "for life" no longer necesarily true.
If you look at Commentaries on the Laws of England, by Sir William Blackstone, probably the most well-known treatise on English common law published in 1765 we also see an institution that looks far different from what marriage looks like today. The definition of marriage under English common law according to Blackstone was a union of husband and wife where "the very being or legal existence of the woman is suspended." Again, this definition has undergone extreme alteration. We no longer see marriage as the forfeiting of legal standing under the law by women.
How interesting. Most people, certainly including myself, don't know much about this history. But it sort of proves my point. While all these aspects of marriage have changed, and the majority aren't familiar with them, most people would still contend they know what "marriage" is because the one-man, one-woman part has been the central part of its definition.
When I made the comments about "redefinition" of marriage being an uphill climb for same sex marriage proponents, I wasn't referring to the legal aspect or what will be physically written into the Virginia code. I was referring to their task of changing public opinion - convincing people to vote against the Marriage Amendment. In order to get those million votes they need, they need to convince a million people that changing the one-man, one-woman part of the definition is a good idea. They do need to accomplish a redefinition.
In other words the idea that the definition of marriage has not changed in hundreds of years is a false one. In the intervening years Virginia code made quite a few chnges to the concept of marriage including outlawing interracial marriage in 1791. The age of consent, the definition of bigamy, the definition of incest have all undergone changes under Virginia code. The 1967 case Loving v. Virginia, which outlawed anti-miscegenation laws and which anti-gay marriage activists do their best to try to get people to ignore, was significant because it represented the first time a state marriage law was invalidated by the Supreme Court, which if you are going to invoke slippery slopes is clearly where this slippery slope began. In that case and subsequent cases the Supreme Court rules that marriage was a "fundamental right."
All true, I grant you.
As society has changed the notion of marriage has changed. In many states the Lord Penzance idea that marriage is by definition to the "exclusion of all others" has changed with the idea of no-fault divorce in which adultery is no longer a factor. Some states recognize cohabitation as granting certain marriage-like rights and others recognize common-law marriage. In Virginia, however, adultery and cohabitation are both illegal and can be prosecuted under law. Perhaps while you're fretting about enforcing immigration laws because of your great regard for the sanctity of law, you might want to pressure law enforcement authorities to start enforcing those laws.
The loud buzzer you just heard was Zimzo being zapped by the NOVA TownHall Stun Gun of Truth. He knows perfectly well that the arguments against illegal immigration in this particular locale are not being made on the basis of "sanctity of law" but rather on "quality of life" or "family safety."
We'll allow him to continue now that he's recovered:
And even as Virginia and a number of other states for the first time specified gender requirements for marriage, society has also shifted on that question. If we are going to invoke Webster's for definitions, you might want to check out its definition of marriage: "a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage."
Again, the "redefinition" argument as I would employ it is about social reality, not the words in a (relatively RECENT, I imagine) copy of Webster's.
The notion that "gay marriage" has "never been tried before" is also not true. Same-sex partners are already living together, owning property together and raising children and they will continue to do so whether this amendment passes or not. Whatever harm you might think would be done to society won't be stopped by this amendment and should already be occurring. All that will happen is that certain legal and financial rights will be much more difficult to obtain. If you want to put a stop to something that is already happening it seems to me you should have a rationale for doing so. And gay couples have not suddenly sprung up in the last 10 years. Gay couples have existed for millennia. They existed in ancient times, biblical times and in many cultures around the world, including the U.S. In fact, in Boulder, Colorado in 1975 a county clerk finding no law forbidding same-sex marriage issued legal marriage licences to six couples until an "activist" judge overturned them. So the idea of gay marriage is not as recent as you might think even in the U.S. So if any harm has been done it has yet to be demonstrated. Gay relationships are hardly a recent experiment.
Yeah, sure, (you sly dog), there have been lots of gay relationships throughout history but that's not the question, now is it? The question is whether you change marriage from it's current institutional definition as the union of one man and one woman. From a statistical perspective it most certainly is not "already happening" at all.
With regard to the examples you give of same sex marriage, the numbers your are referring to are piddling - absolutely ridiculous. I mean, "six couples" in Boulder?
William Meezan and Jonathan Rauch, in an article called Gay Marriage, Same-Sex Parenting and America's Children, referred to the huge problems in methodology of trying to determine the impact on kids, and the "difficulty in setting up accurate bases for comparison because of the extreme heterogenuity of the family situations of potential subjects and lack of any means for locating statistically significant numbers of potential subjects." (pgs. 99-102 - sorry no link but I have a .pdf in front of me).
From a social science perspective the jury isn't still out; the jury hasn't even begun to hear the case.
But as I said in the original post you are commenting on, the thing that interests me is how the pro-same sex marriage advocates have shifted the debate from what it obviously is - should Virginia open the door to changing the definition of marriage from one-man/one-woman to something else? - to the way you frame it in the paragraph above - that people who want marriage to continue to mean the same thing actually are trying "to put a stop to something that is already happening" and "should have a rationale for doing so." It shifts the burden of responsibility in a most ingenious manner.
And yet the real issue before us has nothing whatsoever to do with "redefining marriage." Marriage has been "redefined" many times in Virginia over the centuries.
As I noted, the fact that marriage is the union of one man and one woman is likely the principle and only part of it's "definition" that most people would point to if you asked them to define it, and it's the element of public opinion that does require a revolutionary change if same sex marriage is ever to be allowed in Virginia.
There is already a law on the books preventing recognition of gay marriage and courts around the country have resisted efforts to overturn such laws. Even the most ardent supporter of this amendment would have to agree that the Virginia court is not more likely to overturn this law than the New York court. The sole purpose of this amendment is to make it more difficult for the legislature, local governments and private businesses to grant some rights that married couples enjoy to BOTH GAY AND STRAIGHT COUPLES, such as health insurance and contract and property rights. This draconian intrusion into people's private relations is being done under the guise of defending the institution of marriage from a non-existent assault.
No, the "sole" purpose is to ensure no judge overturns the law as happened in Massachusetts. You know that perfectly well. But I have heard the arguments that the Amendment would cause immediate changes to the rights of gay couple in Virginia and I have to say I don't know about that part. I know part of what the "Equality" people have argued along these lines - that it would reduce protections for victims of domestic violence - is unadulterated horse shit because I researched the Ohio case myself. (Haven't posted on it yet, though).
I will consider the point that an "additional" or maybe even "unintended" consequence of the amendment would restrict rights some citizens already enjoy. Not this week, most likely, but definitely before I decide whether I feel like telling anyone else what to do in November on this issue.
What's more this attempt to prevent gays from securing certain rights will have the effect of punishing straight couples as well.
Honestly, I do not know what you are talking about here. It sounds like a stretch, but I'm willing to listen if you want to spell that out.
It seems to me that if one is claiming its necessary to pass an amendment to the Bill of Rights to the Virginia Constitution, which would be extremely difficult to overturn once it's passed, the proponents of this amendment must make a strong case for why such a draconian measure is necessary.
Again, very simple answer, and I imagine the exact same answer all of the people who voted for similar amendments in 20 other states would give: To ensure that existing state law does not get overturned by a liberal judge, as happened in Massachusetts. There's nothing "draconion" about it, it's simply rational people saying, "Whoa! We pass a law but one dude can overturn it. Better do something."
I'm not saying the above as an apologist but as a reporter. It's the truth so you ought to just face that part of it and make your case on other grounds which, I grant you, exist.
After all, they are the ones who want to change the status quo, which is that gays cannot marry and cohabitation of straight, unmarried people is against Virginia law.
The loud applause you hear is me clapping into a mike plugged into a massive Peavey amp set on "11" with the reverb up full tilt, to imitate a huge audience showing their appreciation for Zimzo's deft utilization of the rhetorical ju-jitso I remarked upon originally. Well done, sir.
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