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“Gender no longer forms an essential part of marriage.” OH MY!

Rob Tisinai

August 15th, 2010

Oh, the “traditional” marriage people are upset. So upset. And this sentence from Judge Walker’s ruling on Prop 8 has them especially upset:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Here are some upset reactions from those upset people:

I believe gender matters, and I believe that gender plays a role in what makes marriage different from relationships. But Judge Walker has decided that his interpretation of the Constitution trumps all that.

If gender is no longer “an essential part of marriage,” then marriage has been essentially redefined right before our eyes.

Can you believe you are reading these words, not merely as the private opinion of a moral reprobate, a cultural revolutionary, but as the conclusions of a “judge” in the United States of America? … This kind of homosexual propaganda has no place in the legal system of a moral culture, but there it is.

Apparently they think Walker is advancing some radical theory and that his opinion introduces a new concept of marriage into our legal system.

They’re talking nonsense.

Walker is merely noting an indisputable truth: traditional gender roles in marriage used to be mandated by law — the man was legally put in charge of his wife, and his wife’s rights were severely limited by the law — but this is no longer the case. Marriage today, in the eyes of the law, is a union of equals.

Who can claim that this change hasn’t happened? Apparently, it’s invisible to those who believe marriage has been constant and unchanging since Adam and Eve. They need a little history lesson, so here goes.

William Blackstone was an 18th Century English judge who shaped British common law and was a tremendous influence in early American law. The Prop 8 lawyers love him. In their emergency request to stay (i.e., delay) enforcement of Walker’s verdict, they write:

This understanding of the central purposes of marriage is well expressed by William Blackstone, who, speaking of the “great relations in private life,” describes the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”

Yep, Blackstone’s their man. Of course, Blackstone also wrote this:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything.

Guess what? That’s not true in 2010 America. Wives won the right to own property in 1848 (in New York, at least). Men can now be prosecuted for beating their wives. Women can refuse to have sex with their husbands, and those husbands can no longer rape them them at their pleasure. So look again at that upsetting Walker quote:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

It’s simply true. Granted, a married couple can choose to live as if “the very being or legal existence of the woman is suspended during the marriage,” but the law will no longer enforce it. Marriage under law is now a union of equals. That leads to Walker’s point: If we no longer see the need for men to have one legally-defined set of marital rights while women have another, much smaller set, then the law sees no distinction between men and women in marriage, and therefore should see no distinction between opposite- and same-sex couples.

Let’s boil this down to one sentence (one question, actually): If someone’s outraged over Walker’s statement, simply ask, Oh, so you think wives can’t own property, and that men are still allowed to beat and rape their wives? Unless they answer you bet!, they’re admitting the truth in Walker’s verdict.

H/T to Brad Parr for pointing out Blackstone in the pro-Prop 8 brief, and to Ms. Magazine for the history lesson.



Elmo Buzz
August 15th, 2010 | LINK

I think we need to stop refering to this as an issue of same sex marriage or opposite sex marriage.

Instead, I think it’d be best referred to as same sex marriage (in the case of gays and lesbians) or mixed sex marriage in the case of non-gay or non-lesbian couples.


It’s a nuance, but the term “mixed sex” and marriage, I think, carries a certian stigma, just as the right tries to imply applies to same sex relationships

Other Fred in the UK
August 15th, 2010 | LINK

Technically, it’s the common law of England & Wales, not Britain. Scotland has an entirely separate legal system.

Scott P.
August 15th, 2010 | LINK

Elmo, I think the best term is marriage equality.

August 15th, 2010 | LINK

One of the upset “traditional marriage people you quote is President of the Southern Baptist Theological Seminary, Albert Mohler. In his article, he also says: “While Judge Walker declared that the religious freedoms of citizens and religious bodies were not violated because no such body is required to recognize or perform same-sex marriage, the very structure of his argument condemned religious and theological objections to homosexuality and same-sex marriage as both harmful and irrational.”

This, too, is nonsense. For example, State law permits divorce, even though the Roman Catholic Church does not. Does this mean that by permitting divorce, the State condemns religious and theological objections as both harmful and irrational? (And divorce is a hardship on the children involved, unlike having two loving, same-sex parents.)

Mohler is a nut.

August 15th, 2010 | LINK

I want to add one more comment about Albert Mohler’s article. The very structure of Walker’s argument did NOT condemn religious and theological objections to homosexuality and same-sex marriage as “harmful and irrational”! Rather, Walker’s argument is based on the fact that religious and theological objections are IRRELEVANT because we have a SECULAR government under our Constitution. Mohler, like the Baptist Church, wants a theocracy where religious and theological objections to homosexuality and same-sex marriage would have the force of law.

August 15th, 2010 | LINK

How about just calling it what it is? Civil Marriage.

August 15th, 2010 | LINK

In this article, published by The Witherspoon Institute, a leading social conservative think tank affiliated with The Family, Matthew Franck claims that Judge Walker’s conception of gender equality constitutes an “assault on moral reasoning”:

It seems pretty clear to me that the opposition to same-sex marriage is based, in large part, on the defense of patriarchal marriage.

August 16th, 2010 | LINK

My marriage must cause these people’s heads to explode, since I am a M2F TS who married a woman prior to my surgery. Since divorce in California is not required for surgery and since California legally recognizes gender changes, I am a legally married lesbian and I didn’t need the State Supreme Court to say so.

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