Coverture, The Marriage Scab

Coverture, The Marriage Scab

By John Taylor; 2006 August 01

Courts in New York and now Washington have rejected legal appeals for legalizing same-sex marriages. They apparently used such lame arguments that gay journalists openly mock them in the press. This is from a recent New York Time opinion piece:

"Washington's judges (found) that limiting marriage to opposite-sex couples furthers procreation, (is) essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents. Children, the decision continues, tend to thrive in families consisting of a father, mother and their biological children. A concurring opinion (read that) due to the binary biological nature of marriage ... only opposite-sex couples are capable of responsible child rearing." <http://www.nytimes.com/2006/07/30/opinion/30savage.html?th&emc=th>

Canadian judges have already rejected this last ditch argument for exclusively opposite-sex marriage. After all, most people are reasoning, if heterosexual singles and gays can already adopt, why should children raised in these households not be regarded as legitimate in the eyes of society? What does "legitimate" mean, anyway? Is it legitimate to set up a prejudice against innocent children born out of wedlock? If not, why not eliminate the roots of this injustice by extending wedlock to gays?

Justice, and arguments for justice, cannot be squeezed into a few words. Still, it is pretty clear by now that our idea of legitimacy is, well, far from clear. Like the reasons for marriage, legitimacy has been pared away beyond recognition, like a tree with all its branches but one cut off, and one solitary leaf growing out of that branch. Does it matter much if we lop that last leaf off? Why not? A one-leafed tree is not likely to survive anyway! This tree metaphor is no whim, it is a recurrent image in most if not all world scriptures. I think we have no choice but to stick to it, for the concept of legitimacy is based upon a set of assumptions that work together just like a living organism, a very large organism, a world tree.

Believers defend exclusively heterosexual marriage by saying, in essence, that "God wants it this way." We believe that marriage is a sacred thing, central to the divine Will. This "God" argument is not really an argument. It is an abdication of argument, or, more charitably, a humble delegation of reasoning to a brighter Mind, a higher Authority. Faith holds no claim to understand God or His reasoning. It would be arrogant to claim that we can understand it or ever will. There may be many reasons why God wants it this way, and those reasons may be diverse but they are, I like to think, homogeneous and consistent. I believe we can observe this: God's grouping of arguments acts together as an abiding, growing presence, just like a tree. Holding to that tree, like holding to marriage and having legitimate children, tends to make us fruitful, productive, prosperous and happy.

"Your children will be like olive shoots around your table." (Ps 128:3)

Like a tree, the presuppositions bearing up the only partly understood God arguments live and die organically, as a whole, together, all or none. To believe in God is to hold that His reasons are deeply grounded in the nature of things, as a tree that derives its substance and stability from roots extending down and out into the ground of being. A tree at the same time grows many large branches upwards, each bifurcating into smaller twigs, and at the end of each waves an almost infinite number of leaves, each busy taking in energy from the sun of metaphysical reality. A tree may well bear the loss of a branch or two; judiciously chosen paring can be a healthy thing. Pruning by a skilled gardener will improve a tree's viability. But if you cut off too many branches indiscriminately the tree must die sooner or later.

Western scripture goes further than merely holding that marriage is a sacred bond only between one man and one woman. It furthermore asserts that since whatever harms the tree of being is immoral, homosexuality must be abhorrent in itself. "Abomination" is the word used in the Bible. This implies that God abhors homosexuality itself, again for reasons we cannot honestly claim to wholly understand. Believers are divided as to God's reasoning, as well we might be, considering that He is by nature an unknowable Essence.

Baha'is remove the Old Testament's moral blame (not to mention its death penalty) on gays themselves by holding that homosexuality is an illness or aberration of nature. This tends to remove homophobic prejudice but it no longer gain the gratitude it might have a century ago. Now Gay Pride Day parades are a loudly celebrated annual fixture in most communities. Gays aggressively assert that they are not perverts, they are proud of their sexual orientation. They hold that sex is value neutral, a free lifestyle choice like the choice we make in the morning between one color of shirt or another. Indeed, gayness is only the tip of a strong pry bar in the doorjamb. Outside, waiting to get in, are an infinity of other sexual orientations, transsexuals, bisexuals, transvestites, and on and on. An articulate gay might well say to a Baha'i: You believe in unity in diversity don't you? Well, what is wrong with diversity of sexual expression?

I would like to begin to answer that by citing the following article in full, a mini-history of the decline of marriage in the West. Because of sexual inequality marriage was understood in terms of coverture, making the whole thing into a scab that had to be removed when healthy regeneration had taken place. Here is the story of the scab.

Op-Ed NYTimes: The Heterosexual Revolution

By STEPHANIE COONTZ

Originally Published: July 5, 2005

THE last week has been tough for opponents of same-sex marriage. First Canadian and then Spanish legislators voted to legalize the practice, prompting American social conservatives to renew their call for a constitutional amendment banning such marriages here. James Dobson of the evangelical group Focus on the Family has warned that without that ban, marriage as we have known it for 5,000 years will be overturned.

My research on marriage and family life seldom leads me to agree with Dr. Dobson, much less to accuse him of understatement. But in this case, Dr. Dobson's warnings come 30 years too late. Traditional marriage, with its 5,000-year history, has already been upended. Gays and lesbians, however, didn't spearhead that revolution: heterosexuals did.

Heterosexuals were the upstarts who turned marriage into a voluntary love relationship rather than a mandatory economic and political institution. Heterosexuals were the ones who made procreation voluntary, so that some couples could choose childlessness, and who adopted assisted reproduction so that even couples who could not conceive could become parents. And heterosexuals subverted the long-standing rule that every marriage had to have a husband who played one role in the family and a wife who played a completely different one. Gays and lesbians simply looked at the revolution heterosexuals had wrought and noticed that with its new norms, marriage could work for them, too.

The first step down the road to gay and lesbian marriage took place 200 years ago, when Enlightenment thinkers raised the radical idea that parents and the state should not dictate who married whom, and when the American Revolution encouraged people to engage in "the pursuit of happiness," including marrying for love. Almost immediately, some thinkers, including Jeremy Bentham and the Marquis de Condorcet, began to argue that same-sex love should not be a crime.

Same-sex marriage, however, remained unimaginable because marriage had two traditional functions that were inapplicable to gays and lesbians. First, marriage allowed families to increase their household labor force by having children. Throughout much of history, upper-class men divorced their wives if their marriage did not produce children, while peasants often wouldn't marry until a premarital pregnancy confirmed the woman's fertility. But the advent of birth control in the 19th century permitted married couples to decide not to have children, while assisted reproduction in the 20th century allowed infertile couples to have them. This eroded the traditional argument that marriage must be between a man and a woman who were able to procreate.

In addition, traditional marriage imposed a strict division of labor by gender and mandated unequal power relations between men and women. "Husband and wife are one," said the law in both England and America, from early medieval days until the late 19th century, "and that one is the husband."

This law of "coverture" was supposed to reflect the command of God and the essential nature of humans. It stipulated that a wife could not enter into legal contracts or own property on her own. In 1863, a New York court warned that giving wives independent property rights would "sow the seeds of perpetual discord," potentially dooming marriage.

Even after coverture had lost its legal force, courts, legislators and the public still cleaved to the belief that marriage required husbands and wives to play totally different domestic roles. In 1958, the New York Court of Appeals rejected a challenge to the traditional legal view that wives (unlike husbands) couldn't sue for loss of the personal services, including housekeeping and the sexual attentions, of their spouses. The judges reasoned that only wives were expected to provide such personal services anyway.

As late as the 1970's, many American states retained "head and master" laws, giving the husband final say over where the family lived and other household decisions. According to the legal definition of marriage, the man was required to support the family, while the woman was obligated to keep house, nurture children, and provide sex. Not until the 1980's did most states criminalize marital rape. Prevailing opinion held that when a bride said, "I do," she was legally committed to say, "I will" for the rest of her married life.

I am old enough to remember the howls of protest with which some defenders of traditional marriage greeted the gradual dismantling of these traditions. At the time, I thought that the far-right opponents of marital equality were wrong to predict that this would lead to the unraveling of marriage. As it turned out, they had a point.

Giving married women an independent legal existence did not destroy heterosexual marriage. And allowing husbands and wives to construct their marriages around reciprocal duties and negotiated roles - where a wife can choose to be the main breadwinner and a husband can stay home with the children- was an immense boon to many couples. But these changes in the definition and practice of marriage opened the door for gay and lesbian couples to argue that they were now equally qualified to participate in it.

Marriage has been in a constant state of evolution since the dawn of the Stone Age. In the process it has become more flexible, but also more optional. Many people may not like the direction these changes have taken in recent years. But it is simply magical thinking to believe that by banning gay and lesbian marriage, we will turn back the clock.

Stephanie Coontz, the director of public education for the Council on Contemporary Families, is the author of "Marriage, a History: From Obedience to Intimacy, or How Love Conquered Marriage."