Marriage, custom and history

During a number of periods in our nation’s history, the prevailing law restricted marriage rights, and popular opinion would undoubtedly have favored constitutional amendments to preserve those restrictions if amendments had been proposed. The first such amendment might have read: “Marriage shall be the union of one man and one woman, and she shall be completely subservient in interest to him.” In early generations, husband and wife were one, and the one was the husband. The wife was essentially his personal property. There were those who warned that the granting of more rights to married women would destroy the institution of marriage.

A second possible constitutional amendment on marriage might have read: “Marriage shall be the union of one free man and one free woman.” In other words, slaves need not have applied. In the days of slavery, marriage was forbidden to them, although they were encouraged to breed children in order to add to the slave holdings of their masters. With the abolition of slavery, there were those who warned of the risks to the marital institution posed by the spectre of intraracial and especially interracial marriage.

Hence, the next potential constitutional amendment might have read: “Marriage shall be the union of one white man to one white woman, or of one man of color to one woman of color.”

Interracial marriage between whites and people of color was prohibited by anti-miscegenation laws that remained in place in numerous states into the 1960s. There were those who warned of the demise of the marital institution and even of the white race itself if interracial marriage between whites and people of color was allowed.

The institution of marriage has survived as much as could have been expected. After all, marriage is not a very exclusive club. Just about anyone can do it if a willing spouse is found. Even convicted felons, including killers, child molesters and other sex offenders, stalkers, drug dealers and addicts, and perpetrators of domestic violence can marry. Half of all marriages end in divorce, or worse.

Nevertheless, marriage is a valuable legal and societal institution. Heterosexual people will not be deterred from marrying simply because same-sex couples can do it too 3/4 any more than same-sex couples will be deterred by the somewhat sordid past and the minimal membership qualifications of the marital institution.

It seems that everyone on both sides of the same-sex marriage debate needs to stop pretending to be quite so righteous.

Michael L. Closen of Eastport is professor emeritus of the John Marshall Law School in Chicago.