A reader writes:
Walker writes (and you quote):“Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.”Huh? “Race and gender restrictions shaped marriage during eras of race and gender inequality…?” Um, there were no such “eras” unless he’s really speaking of one era: all of recorded history. For there never was a time when gender did not matter in marriage. Historically a word the judge bends and shapes at will, but let’s assume it means what everyone knows it to mean there never was a time when marriage referred to anything other than the union of man and woman.
So when he says that “such restrictions were never part of the historical core of the institution of marriage,” I begin to wonder if he is not taking advantage of California’s relaxed laws regarding the use of marijuana, because what he states is wrong in every possible way. If ancient societies did not codify the illegality of gay marriage, it was only because marriage was, to them, so obviously meant for opposite-sex unions that it never occurred to them to make a law about it. But written as a law or not, the fact is that historically (to use that term accurately and not as the Judge uses it) there was no gay marriage. Nope, never.
There were homosexual relationships and, of course, gay people living together. But such relationships were never called marriage. Marriage has always, throughout all of history, referred to a union of men with women. I suspect that “history,” to the Judge, means “How I think things should have been, and how I will for the purposes of this ruling assume they were, even though they weren’t.” (But maybe that’s the marijuana talking.)
But you know, when your reasoning and logic rely upon faulty premises, you get yourself into trouble. To prove just that point, it seems, he writes (and you quote):
“…plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.”
As the Judge might say, “Oh, gnarly, dude!” Because as everyone knows, the very reason this trial occurred is because gay marriage is nowhere to be found in the “core of history, tradition and practice of marriage in the United States.” And the very reason there is opposition to gay marriage is because a majority of the people of the state of California (in two referenda, remember) found it to be inconsistent with “the core of history, tradition and practice of marriage in the United States.”
The Judge gave us a good explanation for why he would have, and might have, voted “No” on Proposition 8. He did not give us a good reason why the votes of everyone else should have been cast out, and his the only one that matters.
Leaving the marijuana issue out of it, and leaving all the other reasons Walker deployed out of it, we are back again to the historical argument: Because something never was, it never can be. My reader has a point, nonetheless, about the sentence he cites. In much of the world, and a whole swathe of America, racial restrictions were indeed integral to civil marriage from the get-go - since marriage meant procreation and racial "purity" was a core value. And for much of human history, marriage entailed ownership of women by men. Were these things integral to the meaning of marriage? You bet they were. So was the prohibition on divorce. Because these things no longer count, does this mean that marriage strictly speaking, has ceased to exist? If not, then what is the common thread that makes sense of marriage as an institution that is continuous?
Opponents of marriage equality say procreation, which is obviously untrue. Or heterosexuality, which is partly true (although many gay people entered into opposite-sex marriages for fear of social ostracism). But if a civil institution with enormous cultural meaning, social status and enumerated benefits, is to be defined by the exclusion of a minority, what of equal protection? That's what Walker is grappling with.
For the record, it is also untrue that gay relationships have never been formalized in the past, or referred to as marriages. In my anthology, you can read about many precedents, from Montaigne's diary to Africa and China and the Balkans and, yes, Massachusetts. Ever heard of what was once called a "Boston marriage"? Yes, in the West, these institutions never got legal status. Because gay people were easily suppressed. But they existed, as my reader acknowledges, and were understood as marriages by their participants.