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Austin Cline

Definition of Marriage in 1886

By May 18, 2005

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Opponents of same-sex marriage like to argue that a marriage between two members of the same sex is a contradiction in terms because it does not fulfill the traditional requirements of marriage. This argument is a-historical because it ignores the ways in which the "essentials" of marriage have changed along with culture over the years - and in recent history.

Roderick Long (via Alas) writes about a case from 1886. Two "free-love activists," Lillian Harman and Edwin Walker, announced a marriage which they had performed in private — they didn't believe that either the state or the clergy were necessary.

The judge presiding over the case, Valentine, agreed that under common law “the mere living together as husband and wife of a man and woman competent to marry each other, with the honest intention of being husband and wife so long as they both shall live, will constitute them husband and wife, and create a valid marriage.” Still, he rejected the validity of the marriage:

In my opinion, the union between E. C. Walker and Lillian Harman was no marriage, and they deserve all the punishment which has been inflicted upon them. … In the present case, the parties repudiated nearly everything essential to a valid marriage, and openly avowed this repudiation at the commencement of their union.
(Quoted in Hal D. Sears, The Sex Radicals: Free Love in High Victorian America, p. 94.)

What "essentials" to a valid marriage had Walker and Harman "repudiated?" Long explains:

In their marriage ceremony Harman had declined not only to vow obedience to her husband (such a vow being repugnant both to her feminism and to her libertarian anarchism) but also to vow love unto death: “I make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act, always, as my conscience and best judgment shall dictate.”

She also declined to submerge her individuality in another’s by taking her husband’s last name: “I retain, also, my full maiden name, as I am sure it is my duty to do.” Walker for his part vowed that “Lillian is and will continue to be as free to repulse any and all advances of mine as she has been heretofore. In joining with me in this love and labor union, she has not alienated a single natural right. She remains sovereign of herself, as I of myself, and we ... repudiate all powers legally conferred upon husbands and wives.”

In particular he repudiated any right as husband to control his wife’s property; he also acknowledged his “responsibility to her as regards the care of offspring, if any, and her paramount right to the custody thereof should any unfortunate fate dissolve this union.” Harman’s father added: “I do not ‘give away the bride,’ as I wish her to be always the owner of her person.” (Sears, p. 85.)

Thus, according to Judge Valentine, the "essentials" of marriage included: life-long commitment, a wife's obedience to the husband, the husband's absolute control over all property, the wife taking the husband's last name, the right of the husband to force sexual intercourse on an unwilling wife (that would be rape, by the way), and the right of the husband to control and have custody of any children.

Long also quotes Horace "go west, young man" Greeley from an 1853 debate over free love:

[T]his reminds me of the kindred case of two persons in Nantucket who have advertised in the newspapers that they have formed a matrimonial connection for life, or as long as they can agree; adding, that they consider this partnership exclusively their own affair, in which nobody else has any concern. I am glad they have the grace not to make the State a party to any such arrangement as this. But true Marriage – the union of one man with one woman for life, in holy obedience to the law and purpose of God, and for the rearing up of pure, virtuous, and modest sons and daughters to the State – is a union so radically different from this, that I trust the Nantucket couple will not claim, or that, at all events, their neighbors will not concede, to their selfish, shameful alliance the honorable appellation of Marriage. Let us, at least, “hold fast the form of sound words.”

This is consistent with Valentine's ruling and Long argues that if today's opponents of same-sex marriage also want to “hold fast the form of sound words” and thereby maintain a traditional understanding of marriage, then they should reject the legitimacy of current unions which do not "require the wife’s legal subordination to her husband, or fail to require her to take her husband’s last name, or do not give the husband total control over his wife’s body, property, and children..."

I wonder, alongside Long, how opponents of same-sex marriage can argue that their definition of marriage is preferable to the definition used by Greeley and Valentine, given the fact that the "selling point" of their definition is that it is allegedly "traditional." Of course, this question assumes that opponents of same-sex marriage don't reject the definition used by Greeley and Valentine — but I'm not sure that that's the case. They may not say much openly to promote it, but as we saw in the recent revelations of Dr. W. David Hager, there is much in their behavior that is consistent with how Greeley and Valentine saw marriage.

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Comments
Chairm(1)

You are making far too much of the word, traditional, that has been used to distinguish marriage from the nonmarital one-sexed arrangement. Just because SSMers call that arrangement “marriage” does not make it so. However, it presents the rhetorical problem of referring to marriage without these qualifiers.

By the customs, traditions, and legal principles in our society (and virtually every society across geography and history), marriage is a both-sexed social institution.

Marriage is marriage. Gay “marriage” is nonmarriage. This is really not based on tradition alone.

The nature of humankind is two-sexed; the nature of human generativity is both-sexed.

Marriage, as a social institution, combines 1) integrations of the sexes and 2) responsible procreation.

Note: the nature of something is not a reference to naturalism.

Note: Responsible procreation is a subset of procreation.

Note: Sex integration occurs within and outside of marriage, however, it is within marriage that it finds its foundation. Sex integration is much more than sexual intercourse but it arises from the both-sexed nature of human generativity and, thus, the both-sexed nature of human community.

By tradition, this is the preferred arrangement for integration of the sexes and for procreation. Marriage has a preferential status based on this combination.

Now, what is the claim of the one-sexed arrangment? Is it based on some special feature of the homosexual relationship or is it asexual in nature?

February 10, 2007 at 9:49 pm

By the customs, traditions, and legal principles in our society (and virtually every society across geography and history), marriage is a both-sexed social institution.

There are many aspects to “marriage” in other societies and in the past which do not exist today. Why must the diferent-sex aspect be retained?

The nature of humankind is two-sexed; the nature of human generativity is both-sexed.

Oh, really?

Marriage, as a social institution, combines 1) integrations of the sexes and 2) responsible procreation.

Those are common aspects of marriage, but not the only ones.

Note: the nature of something is not a reference to naturalism.

Since there is no “nature” to marriage, just custom, that doesn’t apply here.

Now, what is the claim of the one-sexed arrangment?

There is no “the one-sexed arrangement,” just as there is no “the two-sexed arrangement.” There are simply the arrangements which cultures choose to create.

If you were seeking to offer some argument against gay marriage, I must have missed it because there is nothing in your post which suggests that marriage must involve opposite sexes.

February 10, 2007 at 10:16 pm
Chairm(3)

The nature of something is its essentials, its core, its definitive aspects.

So when you say, there is no nature to marriage, you either misunderstood or have asserted that there is no core meaning to marriage. Which is it Austine?

* * *

I did not say that there are only three aspects to marriage. I said these are the essentials — the core — of marriage, the social institution:

1. sex integration
2. contingency for responsible procreation
3. these combined as a coherent whole

1 = the man-woman criterion
2 = the marital presumption of paternity
3 = the social institution, foundational to civilizaton

The one-sexed arrangement — call it whatever you wish — is nonmarital because it stands outside this core meaning of the conjugal relationship type.

If you have in mind a gay relationship type, please state its essentials such that it can be distinguished from other one-sexed arrangements.

And then cite the definitive legal requirements that provide the boundaries which directly connect to the core meanining of the relationship type you have in mind.

It can’t be love, nor gay sex, nor same-sex sexual attraction, since these are not legal requirements anyplace that SSM has been enacted or imposed.

But the core meaning of marriage has such definitive requirements. See points 1 through 3. The government recognizes the social institution. It does not own this foundational social institution of civil society.

Since “gay marriage” (a misnomer) does not have a core meaning, at least you have offered nothing, then, it does not merit special treatment among all other nonmarital types of relationships and arrangements.

The range of nonmarital arrangements is far broader than the “gay” qualifier you chose to add, mistakenly, to marriage. Merging non-marriage with marriage ought to be justified by something other than gayness.

Cheerio.

January 24, 2009 at 3:51 am

So when you say, there is no nature to marriage, you either misunderstood or have asserted that there is no core meaning to marriage. Which is it Austine?

There is no “core” to marriage that is independent of culture.

I said these are the essentials — the core — of marriage, the social institution:

Yes, you did. I notice you didn’t support this assertion.

If you have in mind a gay relationship type, please state its essentials such that it can be distinguished from other one-sexed arrangements.

I’m guessing you didn’t follow the link I gave. I suggest you do.

But the core meaning of marriage has such definitive requirements. See points 1 through 3. The government recognizes the social institution.

Yet it doesn’t require procreation for marriage. You noticed that, right?

January 24, 2009 at 7:56 am
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