By Stacey Patton:

Two weeks later, I am still on high about the historic election of our first black president, and at the same time, perturbed by debates about whether gays and lesbians should have the legal right to marry. Right-wing politicians, religious leaders and other proponents of Proposition 8 argue that allowing same-sex marriage threatens “traditional” marriage, conflicts with religious freedoms, weakens families, and harms public health and children. Some folks have even publicly suggested that if same-sex marriage is legalized then people will want the right to marry minors and even legalize bestiality and other “unnatural” relationships.

What is especially troubling to me is how opponents of same-sex marriage vehemently argue that we must “protect the sanctity of marriage” and that we cannot “redefine” marriage. But since the founding of the American Republic, marriage as a legal institution and social practice has continually evolved and been redefined at least 40 times through our legal system.

During the colonial period, American colonies based their marriage laws on English common law, which said, “The very being and legal existence of the woman is suspended during marriage, or at least is incorporated into that of her husband under whose wing and protection she performs everything.” Women were considered the property of their fathers who transferred them to their new husbands. Maryland and Virginia enacted laws criminalizing marriages of whites with Indians, black (and mulatto) slaves and indentured servants. If a White person (bond or free) married a person of color, he or she could be banished from the colony. In 1724, Louisiana enacted a Black Code forbidding marriages between slaves without the consent of the slave master.

In 1780, Pennsylvania repealed its anti-miscegenation law, together with some of the other restrictions placed on free blacks, when it enacted a bill for the gradual abolition of slavery in the state. But during the 19th century, most states continued to pass anti-miscegenation laws forbidding interracial marriages.

Mississippi in 1839 granted women the right to hold property in their own names; but with their husband’s permission, most states would not allow women to control their property and earnings until 1900. In 1855, the Missouri Supreme Court, in the case of Missouri v. Celia, a slave, ruled that enslaved black women were property without the right to defend themselves against a master’s rape. In 1978, New York became the first state to outlaw rape in marriage and not until 1993 did all fifty states revise laws to include marital rape.

The defining of marriage laws was expanded in the early 20th century beyond race, ethnicity, immigration status and even age as Progressive era reformers sought to extend childhood and raised the age of sexual consent up from age 10. By 1930, 12 states still allowed boys as young as 14 and girls as young as 12 to marry (with parental consent). As the civil rights movement came to the fore, by 1967, with victory in the Loving v. Virginia case, the Supreme Court overturned all state bans on interracial marriage, declaring that the “freedom to marry” belongs to all Americans.

Now here we are again, facing yet another one of those watershed moments in American history where some folks keep arguing that certain kinds of love and marriages are “unnatural” and that the marriage model they are comfortable with must not be redefined for the sake of tradition and public health. The history of marriage in America, however, has taught us otherwise: that marriage is not just a private act between two people that love each other. It is an institution inextricably linked with the preservation of public policy, welfare, national identity, gender order, racial hierarchy, citizenship status, and civil rights for certain groups.

Like heterosexuals, many gay and lesbian couples regard the right to marry as part of the fulfillment of the American Dream. Gays and lesbians feel the same way about marriage as heterosexuals do. The right to marry is an essential part of being recognized as full members of “we the people” who are entitled to all of the privileges and protections that America promises to its citizens. To deny people access to fundamental rights is to undermine our pursuit of a more perfect union.

History has taught that marriage is both deeply personal but also a social value and political tool used to define the boundaries of our whole community. Since we have already redefined marriage at least 40 times in our history, perhaps we can draw on lessons of the past by revising marriage yet again as we strive for continued progress and equality for all.

Below is a historical timeline on the development of marriage in the United States. There are at least 40 instances where marriage as a legal institution and social practice was revised with specific attention to race, gender, class, sexual orientation and immigration status.

Sources:

• Beyond Gay Marriage, 1999, Michael Warner; Challenging White Supremacy Workshops timeline of “Racism and the Rise of the Right “
• “Civil Rights: A Chronology.”
• National Black Justice Coalition, “Timeline on Blacks and Marriage Equality.”
• National Network for Immigration and Refugee Rights, BRIDGE (Building a Race and Immigration Dialogue in the Global Era) Curriculum:
• Timeline of Legal History of Women in the United States
• A Selective History of Marriage