The recent endorsement by the President of United States for same-sex marriage as determined by state statute posted a flurry of pronouncements from both sides of this legal and moral issue as presented by PBS’s The NewsHour with Jim Lehrer. And when examining the definition of “marriage” as defined by Cornell University Law School, Legal Information Institute website, it states the definition as “the legal union of a couple as spouses; with the basic elements of a marriage as: (1) the parties' legal ability to marry each other, (2) mutual consent of the parties, and (3) a marriage contract as required by law.”
Historically speaking, following the Civil Rights Act in 1965, the U.S. Supreme Court in a 1967 decision eliminated racial discrimination in marriage from state statues. However, it was not until 1996, with the Defense of Marriage Act (DOMA 1 U.S.C. § 7) is where the federal government defined the term marriage as “in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Then, in January 2012, the U.S. Code cites 28 U.S.C.§1738C that augmented DOMA to specify that “no State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same-sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.” Which brings us to back to today’s debate on same-sex marriage and civil unions.
The term “marriage” derives from late 17th C and 18th C England according to historians and used in colonial America. It composed of two varieties of marriage settlements: (1) strict settlement that entitled property to eldest son and then his eldest son, etc. It is also known as the practice of primogeniture and used in other cultures as well; (2) sole and separate estate settlement for a married woman, which preserved an independent interest in the specified property during her marriage, and which her husband has no right in equity. As in early modern England, it had a patriarchal society where women were often victimized by common law of marriage as this was a way to acquire a woman’s family’s property or financial inheritance. These same marriage settlements continued in the American legal framework from colonial times and are still in effect.
After examining the historical origins of the word or use of marriage in America today, the word marriage has easily become intertwined in the legal definitions and within our religious dogmas. According to Lambda Legal Executive Director Kevin Cathcart, “We welcome the news that President Obama understands the importance of equality for all people in this country and we are excited that he joins the majority of Americans in supporting the freedom to marry.” And, from Thomas Kohler, professor at Boston College Law School, “The real impact of changes in marriage law will not be on their teachings, but on the religious institutions themselves. The external law will not, and under present First Amendment doctrine could not, force a religious group to conduct same-sex marriages if doing so would be contrary to their teachings. However, the law would require those religious groups to recognize such marriages, to grant spousal benefits to same-sex couples in employment situations, etc.”
In conclusion, it would serve the American people best if our leaders can separate the legal terminology from the religious beliefs when it comes to the term of marriage. The legal aspects of the marriage origins have been firmly placed in the legal arena as it relates to property ownership. If we continue to uphold the separation between church and state, then as Thomas Jefferson once wrote to Alexander von Humboldt in December 6, 1813, “History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes.” And in letter to Dr. Thomas Cooper, February 10, 1814, “Christianity neither is, nor ever was a part of the common law.” The ambiguous nature of the American use of the word marriage in regards to law and religion continues to confuse and confound Americans from resolving efficiently and effectively dispose of property. We have arrived at the current definition without respecting the legal origin and conditional usage of the word marriage.
Susanne L Woodford, Freelance Writer