President Bush and other conservatives charge that gay marriage “redefines” marriage. True enough, but the notion that marriage has always been fixed is false. Marriage has always been changing.
Consider William Blackstone, whose “Commentaries on the Laws of England” (1765) defined English and American common law for nearly a century. For Blackstone the essence of marriage was not “one man and one woman,” but “one legal entity”: “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 is incorporated and consolidated into that of the husband.” On the basis of this principle, Blackstone defends the spousal testimonial privilege, not as a wise policy, but as a logical necessity. Allowing one spouse to testify for or against the other spouse is absurd because it violates the essence of marriage by treating them as separate individuals.
A husband once had the right to “chastise” his wife physically. Blackstone notes that in his day this was only still true among “the lower rank of people,” and a legal scholar writing in 1895 says “this right of chastisement may be regarded as exceedingly questionable at the present day.” But, he adds, “The right of gentle restraint over the wife’s person rests upon better authority than that of chastisement.” This right depends on the man’s being the “dignior persona” [more worthy person] in the partnership.
A legal treatise published in 1816 declared: “The husband, by marriage, acquires an absolute title to all the personal property of the wife, which she had in possession at the time of the marriage; such as money, goods or chattels personal of any kind. These, by the marriage, become his property, as completely as the property which he purchases with his money; and such property can never again belong to the wife, upon the happening of any event, unless it be given to her by his will; and in the case of the death of the husband, this property does not return to the wife, but vests in his executors.”
One might add that the custom of arranged marriages and dowry, so common and so criticized today in many less-developed countries, survived in the United States into the nineteenth century. I could cite many more examples of how the institution of marriage has changed for the better in the last two centuries.
In defending “traditional marriage” (whatever that is), conservatives are ignoring history by disingenuously suggesting an imaginary fixed and immutable essence of marriage. Surely, the people deserve a more honest public debate.
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