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.