Forgotten or Unknown?

Our collective memory can be frightfully shallow.

Take, for instance, an on-line discussion I was in recently where there were people who weren’t aware that not that many years ago it was illegal to be gay. By which I don’t just mean that the notion of gay marriage didn’t exist, but that if the authorities found out you were gay, they could send you to prison. I had to tell them of an acquaintance who had been arrested for indecency back in 1970 for kissing his boyfriend in the wrong neighborhood. That meant that he didn’t just have a criminal record, but a sexual offense (albeit a misdemeanor).

Note that he was not arrested for rape, attempted rape, or anything like that. Chris was 21 years old, his boyfriend was 24, they were consenting adults who had just left a gay bar together. It was late at night, and they were making out in the boyfriend’s car near Chris’s dorm at the University of Washington. Yes, they were here in a city with a reputation as being ultra liberal. But they were two men kissing, and that was something society could not abide in 1970!

If I recall correctly, Chris said his boyfriend lost his job because of the arrest, and had a difficult time finding a new one. Chris didn’t begin to run into problems getting hired himself until a few years later, after he graduated and started looking for more substantial jobs than the starving-student-type of employment he’d had before.

He wound up working as a hair stylist, saved up his pennies, and eventually opened his own shop. It hadn’t been what he’d meant his career to be, but he made do.

Contrast that with something I witnessed during my own college days (some years later): one of my dormmates convinced a bunch of us to go with him one night to a park that was near the school. I have completely forgotten what the purpose of the excursion was, now, but we got a bit lost and stumbled upon a guy and a gal who were having sex under a tree.

It was long after dark, they were off of any paths, behind some bushes, and they were clearly trying not to be seen or heard.

We hurried away before the angry guy could do more than yell at us.

Not much further, we encountered a cop, who stopped us and asked us what we were doing in the park after dark. There was a point where I thought we were all going to be showing him our student IDs or something, but something one of the guys said made the cop grin and ask us if we had run into anyone doing something they oughtn’t. And then he made a reference to the size of the girl’s breasts.

It was clear he had seen them, as well, but had decided not to do anything about it. I think he implied that he had been sent to the park because of complaints about such activity, and he thought it was a waste of time, since no one was being hurt.

I suspect the cops reaction would have been very different if it had been two guys.

I’ve been running into a lot of people, when discussing issues such as marriage equality, the Violence Against Women Act, or wage disparity, who are completely unaware of just how recently things that they currently think of as mere fruatrations were either mandated or at least aided and abetted by the law.

For instance, up until the mid 70s, a married women did not have a legal right to withhold sex from her husband. Even if they were living separated, in the midst of divorce proceedings, and he had been witnessed physically abusing her many times, if he forced her to have sex she couldn’t get him convicted of rape. Heck, most of the time she couldn’t get him charged. Finally, a woman who had attempted to get the rape included in the assault charges against her husband (ex-husband by the time it went to trial), managed to appeal the decision not to include the charges up to a federal judge who agreed: if she says “no,” it’s rape.

That didn’t cause a sudden change in the law or practice in this regard, but it was the very first recognition that in the U.S. legal system that a wife’s body wasn’t literally and entirely the property of her husband to do with as he pleased. And that only happened a mere 36 years ago.

There are still laws on the books related to that notion. My favorite are the “alienation of affection” laws. If you look up the topic online now, all you will find are articles that refer to the versions of the laws as they have been altered in response to legal challenges. So wikipedia, for example, says that the laws allow a spouse to file a lawsuit against a third party alleged to be responsible for the failure of the marriage.

The original laws allowed only the husband to file a lawsuit against another person for “malicious conduct that contributed to or caused the loss of affection.” The most common malicious conduct was, of course, seducing her into having an affair. For a long time a wife could not file a similar lawsuit against someone she believed she could prove had acted to alienate her husband’s affections. In the last several decades, most of these laws that have remained on the books have been revised to be gender-neutral, which I suppose is an improvement.

The problem is that while the original justification of the laws was assumption that a wife’s body (and affection, et cetera) were the property of the husband and he could expect the legal system to protect his property rights, the gender-neutral versions still assume a property rights relationship. If you need the law the force your partner to love you, that is not love. Okay, successful lawsuits under these laws don’t end up with orders to anyone to go back to loving their spouse, but when the law is able to inflict punishment because someone has fallen out of love, the principle is the same.

There’s going to be a lot of talk on the news and around the web this week where people are emphatically insisting the marriage has been an unchanging institution for all of human history, and that’s pure nonsense. In the last five decades alone in this country we have redefined marriage in several ways:

  • so that it includes interracial couples,
  • so that it includes persons previously considered less than full citizens because of certain mental and medical conditions,
  • so that even prisoners on death row must be allowed into the institution if they want, and,
  • so that a wife’s body is not treated as the legal property of her husband.

Over the course of five decades before that we have legally redefined it so that a couple who have realized the marriage was a mistake could end it without having to prove that one spouse was abusive, or go through other legal hoops to satisfy society that the marriage was over.

In the century before that we have legally redefined it so that people didn’t have to get the approval of a church (and before that, the official state church) in order to get married, allowing people who were raised in different faiths to get married, as well as allowing those of no faith at all in.

In the last few centuries we’ve redefined marriage in a way that almost no one realizes was never an integral part of the institution: we made marriage about love. For most of human history marriage has been a matter of creating/reinforcing family alliances, securing the orderly inheritance of property, and/or politics. The notion that two people would meet, fall in love, and decide all on their own to get married has only been around for a few centuries.

So any so-called defenders of traditional marriage who mention a relationship of mutual love and respect is not talking about a very old tradition, at all.

Yes, the notion that two people of the same gender might be the ones who fall in love is new for a lot of people, but when looked at in comparison to all the other ways that marriage has changed, it’s actually only a very minor refinement.

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About fontfolly

I've loved reading for as long as I can remember. I write fantasy, science fiction, mystery, and nonfiction. I used to publish an anthropomorphic sci-fi/space opera literary fanzine. I attend and work on the staff for several anthropormorphics, anime, and science fiction conventions. I live near Seattle with my wonderful husband, still completely amazed that he puts up with me at all.

4 responses to “Forgotten or Unknown?”

  1. Eva Maria Snyder says :

    While I’m entirely in favor of marriage equality, I don’t think the law should be involved if marriage is just about love. The only reason marriage is a legal institution is because it is about property. You brought up the issue of the wife as property, but really that was only important because the wife is necessary for the husband to have heirs for his property. An unfaithful wife was defrauding her husband by giving his property to the children of another man (if she had children by that man and they inherited the husband’s property). I still contend that the primary legal purpose of marriage is to declare unrelated people to be legally related (like adoption). If marriage is just about love there is no need for the law to get involved at all. Even now straight couples are choosing not to get legally married because they don’t think the government should be involved in their emotional relationships. And they are suffering the legal consequences of not having the legal protections of marriage. If you want someone to be legally a member of your family you should go through the court process to have them declared a member of your family. If you love them you will give them that protection. But legal marriage is about property rights not love. I’m also in favor of polygamous marriage. People should be able to form whatever consensual families they want.

    • fontfolly says :

      If it really were merely about love, the law wouldn’t be involved. That’s one of the incongruities of the marriage equality debate. There is no requirement in the law that love is involved, we certainly don’t force people to pass love tests. But many of the arguments against marriage equality assume love as one of the characterizations. If not, why do you have people (including very prominent politicians) argue against marriage equality with such statements as, “I love my mother-in-law, but don’t want to marry her,” or “I love my couch, but shouldn’t have the right to marry it.”

      The underlying argument in both of those statements is that the love between same-sex partners is not equal to that between a traditional husband and wife, therefore it isn’t worthy of the legal recognition.

      On the other hand, why do you wish to designate someone your legal next of kin? That is what civil marriage is about, ultimately, and for the vast majority of people the answer is love.

      And yes, we should be even more flexible with that legal designation than we are. But sometimes we have to do things in increments.

      • Eva Maria Snyder says :

        I would say that “the underlying argument in both those statements” is that marriage is not about love; that love, no matter how genuine, is not a sufficient justification for any marriage.

        The primary arguments I hear against marriage equality are: that same sex couple can’t reproduce “naturally”, and marriage is primarily a religious institution. Both those arguments are flawed because many heterosexual couples can not reproduce “naturally” but are allowed to marry, and if marriage is a religious issue it should not be regulated by the government at all. Personally I like the argument the making same sex marriages illegal interferes with the freedom of religion of churches to perform the marriages they want to (such as Wiccan and Unitarian Universalists). If marriage is a freedom of religion issue than any church that wants perform same sex marriages should be allowed to do so. It does not restrict the freedom of Catholics to make same sex marriage legal. It does restrict the religion of UUs to make same sex unions illegal.

        I only hear the argument that marriage is about love coming from the marriage equality side. That “love is all you need to make a family” is an argument that appeals to some of the undecided, and young people. But doesn’t go anywhere against the “traditional” marriage crowd.

        In general I’m against legislating based on emotions. I think our society’s emphasis on love as the basis for marriage is bad for marriage. People mistake infatuation for love and aren’t willing to stick with the relationship when things get difficult. You should love your children but if you don’t always feel that way you can’t just walk away from them. If people thought of marriage more as a commitment to be a family, and have responsibilities toward each other, whether they actually like each other or not, I don’t think we would have as many divorces. Should family members love each other? Of course. But they are still family even if they don’t. Should people who get married love each other? Of course. But they are still married even if they don’t. You can’t legislate emotions. That is just bad law. Marriage is a legal contract. Personal motivation is not a part of the contract.

        I understand what you are saying when you say that love is why you designate someone your next of kin. You are correct that people usually love those they leave their property too. But when it comes down to filling out the paperwork it is a rare person who says “I love you so much I’ve decided to make you the recipient of my life insurance!” That decision is more likely to be “It’s irresponsible for me to to leave this all for my family to sort out after I’m dead, and I don’t want the government to get my money, so I guess I have to fill out the paperwork now”. Or “If anything happens to me I don’t want my crazy family to be making decisions for me. I had better fill out the paperwork to have someone I trust take responsibility.” If people filled out the paperwork based on love a lot fewer people would die without wills. Filling out paperwork is something people do out of fear, duty, or responsibility not love.

        And don’t even get me started on what happens if your relationship changes and you forget to update the paperwork. (Which is why so much of the law handles this by default). *sigh* I need to update my will. I left my cat, Kipp, to my old roommate because they got along. But that roommate moved out 3 years ago and Kipp died. The relationships changed but the paperwork hasn’t caught up.

        • fontfolly says :

          (First, I first saw your comment when I was checking something on my iPad, and when I tried to exit, I hit the “unapprove” icon by mistake. For a second I had a panicked thought that I had deleted your comment. But I hadn’t, and I re-approved you as a commenter once I figured out what I’d actually done. I have no idea if you received any notice of any of this, but in case you did, it was me being fumble-fingers)

          There are several aspects of this whole thing that fall into the old chicken-and-egg category. People do not drop on one knee and ask someone to “become the person who has the right to visit me in the hospital,” that’s true. However, everyone assumes that, of course, a person’s spouse has the right to visit a person in the hospital, as well as the right to be told by the doctors what’s going on with their spouse in the emergency room, has a right to live in the home they shared together if the worst happens, and so on. Those aren’t at the top of anyone’s mind when deciding to get married, but everyone expects those sorts of considerations to be extended to the person you have asked to be your husband or wife if those events come up.

          I have to completely disagree with your first point. I’m sorry, there is absolutely no way that the sneering tone that Bill O’Reilly used when he talked about someone loving a goat and wanting to marry it, nor the sneering tone in that congressperson I saw making the “I love my TV, but that doesn’t mean I can marry it” or the roll of the eyes when Romney made the mother-in-law comment means anything other than “their love is not genuine.”

          Just last year, the anti-equality group in Maine made the public statement that love had nothing to do with homosexual relationships, that the basis of those relationships was anonymous and predatory sex. When they faced an enormous blacklash they dropped the ads and scrubbed all references from the web site.

          You don’t publicly hear the “their love isn’t real love” argument much any more from that side, because in recent years they’ve learned that it doesn’t fly with moderates any longer. But, literally one-quarter of the statements made by congresspeople during the original Defense of Marriage Act debate back in 1996 was exactly that: homosexuals don’t love, their relationships are incapable of love, therefore allowing them to usurp the label of marriage for their loveless unions would be wrong. They still believe that. That’s why people laugh at the I-love-my-car/tv/mother-in-law/etc jokes, because they all understand the implication.

          They have simply learned to (mostly) only talk about in in code or behind closed doors.

          And you hear the pro-equality making the argument now, rather than talking about fairness, precisely because while in 1996 the “their love isn’t real” was a winning argument for the right, societal acceptance has flipped.

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