Tuesday, January 12, 2010

The Purposes and Functions of Marriage

A women's history professor from Harvard has been giving testimony in the Proposition 8 lawsuit, currently in progress. This is from the AP report by Lisa Leff and Paul Elias:
Nancy Cott, a U.S. history professor and the author of a book on marriage as a public institution, disputed a statement by a defense lawyer that states have a compelling interest to restrict marriage to heterosexual couples for the sake of procreation.

Cott said marriage also has served an economic purpose, with each spouse doing different jobs in the partnership. As the purposes of marriage have changed, the reasons to bar same-sex couples from marrying have gone away, she said.

"It seems to me that by excluding same-sex couples from the ability to marry and to engage in this institution, that society is actually denying itself another resource for stability and social growth," she said.

Cott conceded under cross-examination that she couldn't predict the consequences for society of same-sex marriage.
Interesting, too, is that the plaintiff's lawyer is a heavy-weight conservative.
Regardless of the outcome, the case is likely to be appealed to the U.S. Supreme Court, where it could lead to laws that restrict marriage to a man and a woman being upheld or abolished nationwide.

The expert testimony marked a change in tone from the trial's first day, when the plaintiffs gave intimate accounts of their private and public lives, at times tearfully testifying about moments of awkwardness, disappointment and shame that they said resulted from their inability to legally wed.

"I've been in love with a woman for 10 years, and I don't have access to a word for it," said 45-year-old Kristin Perry of Berkeley, the lead plaintiff. "In a store, people want to know if we are sisters or cousins or friends, and I have to decide every day if I want to come out wherever we go, if we are going to risk that negative reaction."

Perry and her partner, Sandra Stier, 47, and a gay couple from Los Angeles, Paul Katami, 37, and Jeffrey Zarrillo, 36, were the first witnesses.

On Monday, their noted conservative litigator Theodore Olson quoted the U.S. Supreme Court's own lofty description of matrimony to demonstrate what his clients were being denied.

"In the words of the highest court in the land, marriage is the most important relationship in life and of fundamental importance to all individuals," said Olson, who represented George W. Bush during the Florida recount in 2000 and later served as his solicitor general.

Charles Cooper, who is representing Proposition 8 sponsors, said in his opening statement that Proposition 8 was motivated not by "ill-will nor animosity toward gays and lesbians, but special regard for the institution of marriage."

"It is the purpose of marriage - the central purpose of marriage - to ensure, or at least encourage and to promote that when life is brought into being, it is by parents who are married and who take the responsibility of raising that child together," he said.
Once you admit that the purposes and functions of marriage include other things in addition to childraising, the arguments against same-sex marriage disintegrate. But if the Supreme Court decides childraising is the only raison d'etre for marriage, then all sorts of new issues could conceivably arise for marriages that are childless or where one partner has decided they don't want children. (Try it out as the premise of an sf story, and see where it leads you...)

Anent what the AP story says Cott said, I'd argue that probably the purposes of marriage haven't changed all that much. Key financial benefits and social arrangements have always been a part of the purposes and functions of marriage. (Read Jane Austen!) It's just that a veil is generally drawn over them, in order to focus on the heterosexual romance narrative that has stamped most discussions of why people get married.


Josh said...

Hm, wonder if they'll get Stephanie Coontz up there.

I hope Cott didn't concede "that she could not predict the consequences" without remarking on the other countries that have gay marriage, which have not asploded.

My father believes the sanctity of heterosexual marriage was proven by Marx in the Economic and Philosophical Manuscripts of 1844; but I somehow doubt that argument will come up in the courtroom.

Kristin said...

What right does the state have to restrict marriage, anyway? We are socialized to think of marriage as a union between men and women, based on a promise of commitment, with the support of the community and the rubber stamp of the state. But that definition is unique to a culture, place, and time. I checked Wikipedia's definition of marriage (http://en.wikipedia.org/wiki/Marriage), under "Recognition by the state" and it looks like a requirement of state recognition began with the Calvinists in the 1500s. That's pretty recent.

A friend of mine, both moms in heterosexual relationships, considered the question of the state and chose a different course of action. She, feeling marriage is an institution of the state and, not believing in the state, chose not to marry. I, believing that marriage can exist independently of state recognition, and represents a choice by the participants to enter into a family relationship, chose to marry. Both of us challenged the institution of marriage as the media defines it.

My heart breaks when I see this comment by Kristin Perry that she doesn't have access to the word "marriage." For the record, no matter what happens in the court of law, if people tell me they are married, I will take that at face value.

One further thought: I am sick and tired of people hurting other people in the name of "children." If Charles Cooper really believes "It is the purpose of marriage . . . that when life is brought into being, it is by parents who are married and who take the responsibility of raising that child together," then why is he trying so hard to break up families?

Okay, and I am so angry about this that I can't resist one further thought: I am sick and tired of people who find it so important to "bring life into being" but are then happy enough to abandon that life to poverty, violence, hunger, and so on, by destroying our social safety nets.