Activism or facing reality?

Philadelphia Inquirer, Thursday March 15, 2006
By Stephanie Coontz

U.S. courts' rulings on marriage have evolved in response to changing norms.

Stephanie Coontz is a teacher of history and family studies at Evergreen State College, Olympia, Wash.

With several state supreme courts due to rule on suits from same-sex couples demanding access to marriage, conservatives must be delighted to have a Justice Samuel Alito. During his confirmation hearings, Alito argued that judges should interpret the Constitution based "on the meaning that someone would have taken from the text... at the time of its adoption."

But if courts had held fast to the meaning of marriage as it was in the days of our country's founding, marriage would still be based on the legal, political and sexual subordination of women.

When Abigail Adams suggested that her husband, the future President John Adams, write protections for women in the Constitution, he replied that the very thought made him laugh. Husband and wife "are accounted one person," said prevailing opinion, "and he hath power over her person as well as estate." In 1861, the New Jersey Supreme Court ruled: "The husband is entitled not only to all the personal property which the wife owns at the time of her marriage, but to all that she acquires by her skill or labor" during the marriage.

As late as 1911, the U.S. Supreme Court invalidated a statute that allowed wives in the District of Columbia to sue for damages on their own behalf. A lower court had interpreted this statute as permitting a battered wife to sue her husband. The Supreme Court majority indignantly dismissed the "revolutionary" idea that wives had such individual legal rights.

However, as the 20th century progressed, courts increasingly found it necessary to reject many traditions. In 1954, the New York Court of Appeals ruled that it "would not be consonant with our present social concepts of husband and wife" to continue denying that spouses had separate identities. In 1967, the U.S. Supreme Court ruled against laws banning interracial marriage.

The New Jersey Supreme Court rejected the legal doctrine of wifely subordination as "anachronistic" in 1980. These activist judges said the law must recognize that wives were now "their husbands' partners, not their servants." By the mid-1980s, courts also were reversing the long-standing legal principle that a man could not be convicted of rape for forcing himself upon his wife.

All these interpretations radically challenged the intent of the framers of the Constitution. But the courts that updated and democratized marriage did not suck these new ideas out of their thumbs. They were responding to new social realities as men and women became more equal in public and private life. What are often called activist judges and courts might be better termed reactive.

In the 21st century, judges and courts must continue to respond to changing social realities. Strict constructionists such as Alito see marriage as the central organizing principle for the legal regulation of interpersonal rights and obligations. In real life, however, marriage no longer plays that role.

Today, Americans spend, on average, half their adult lives outside marriage. The last decade has seen a sevenfold increase in the number of individuals who live together out of wedlock. Many of them pool resources, accumulate joint assets, and share caregiving obligations, with or without permission from the state. One-third of the children born today have unmarried parents. Many gay and lesbian couples also are raising children.

These arrangements require types of legal recognition that used to be reserved for marriage. When individuals take on caregiving tasks for each other that would otherwise have to be provided at public expense, they need the legal rights to follow through, such as making hospital decisions or receiving inheritance rights. And if they walk away from a relationship in which they took on such responsibilities, they should not be allowed to abandon the obligations they incurred just because they lack a marriage license.

Responding to the changing role of marriage in our society will certainly lead to further innovations in our legislation and legal interpretations - innovations that most of our founding fathers would not have approved. But there is one precedent from the 18th century to fall back on - the revolutionary precept of the Declaration of Independence that all human beings have an inalienable right to life, liberty, and the pursuit of happiness. That tradition must now be placed foremost in our legal thinking about marriage.

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