Monday, June 29, 2015

Han Chinese Marriage: A Lesson for Chief Justice John Roberts

In his dissent from the Supreme Court's ruling acknowledging rights of marriage equality throughout the Union, Chief Justice John Roberts protested that the decision was an overreach on the part of the Court. He complained that the ruling “orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” As many have noted, this passage expresses an understanding of social history that is simplistic at best. Rosemary Joyce has explained the absurdity of invoking Aztec marriage as a foundational precedent (hat tip to my friend and colleague Susan Tratner).
        As a historian of China I was likewise shocked to see the Han (206 B.C.E.-220 C.E.) Chinese on Roberts's list. A document that I have frequently used in class to discuss gender history with my students well exemplifies the problem with Roberts's reasoning. It is a letter from a Han dynasty official, Feng Yan, to his brother-in-law, explaining why he is forced to seek a divorce from his wife. In its opening lines, Feng declared:

"According to the rules of society that have been set down by the sages, a gentleman should have a primary wife and a concubine as well (translated in Ebrey, Chinese Civilization: A Soucebook)."

Feng goes on to explain that since his wife (the addressee's sister) has sought to change the age-old definition of marriage by denying him a concubine, Feng has no choice but to jettison the mother of his four children in search of someone more reasonable.  It is interesting to note that this is precisely the same logic deployed by Chief Justice Roberts two millenia later.
       As has been frequently stated, what opponents of marriage equality fail to understand is the high degree to which the institution of marriage has changed and evolved over the course of human history. The reality of same-sex love was understood by the Han Chinese as it was by the ancient Greeks and other early peoples. The reason that an acknowledgment of same-sex love did not translate into an embrace of same-sex marriage is that, as Feng Yan's letter demonstrates, marriage was (in theory, at least) understood to be a hierarchical relationship between master (husband) and servant (wife). This marital hierarchy was assumed to grow spontaneously from the natural gender order written into the framework of the cosmos. Two persons of the same gender thus could not marry, as it would be impossible to determine who was superior and who subordinate.
        Marriage has evolved (much more recently than most people imagine) to become a relationship between equals, thus there is no justification to exclude same-gender couples from the marital bond. In this respect, Chief Justice Roberts is utterly wrong- in upholding marriage equality the court did not legislate from the bench, it merely enforced the natural imperative of the 14th amendment's guarantee to all citizens of "the equal protection of the law." Federal law grants 1,138 rights and benefits to married couples. Anyone arbitrarily disallowed from marrying the individual that they love thus can not possibly be said to enjoy "the equal protection of the law." This ruling is not a thunderbolt from the blue. It is a consummation that has been due since the passage of the 14th amendment in 1868.

Monday, April 1, 2013

Answering Scalia's Question

During oral arguments over the repeal of Proposition 8, Justice Antonin Scalia asked the following question of Ted Olson, one of the attorneys arguing for the repeal: "I’m curious, when—when did—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?" Mr. Olson's answer was rather labored and tentative. To paraphrase his reply, he asserted that this change had happened at some indeterminable point when society realized that sexual orientation is not a matter of choice. Not being a lawyer, I am not aware of the possible legal reasons behind Mr. Olson's evasiveness. Still, I can not help expressing dissatisfaction with this answer.

From my perspective, the answer to Justice Scalia's question is quite clear: denial of marriage equality became unconstitutional with the adoption of the Fourteenth Amendment and its guarantee to all citizens of "the equal protection of the laws." There is no network of legal obligations in which a citizen is enmeshed so binding or significant as the family, and there is no familial relationship more intimate than with one's spouse. This latter fact is a function of U.S. law, and may be deemed a hallmark and prime achievement of our American Revolution. In the Old World the obligations borne to one's natal family trumped that to one's spouse (blood was, as they said, thicker than water). In America, one's spouse became one's next-of-kin, because we recognized that weight should be given to the one family relationship that was entered into freely and of one's own volition. In a democracy, choice trumps birth.

Anyone excluded from the marital compact is deprived of this ability- the power to choose one's closest relative. Given that under federal law alone, marital status conveys 1,138 rights and benefits, anyone barred from the institution of marriage can not possibly be said to enjoy "the equal protection of the law." Unless one is willing to completely discount the role of love in family life, there is no way to square the denial of marriage equality with the imperative of the equal protection clause.

Putting a date on this change is less paradoxical that it may sound. We should not confuse the time when a law became unconstitutional with the point at which it "became" wrong. It was always wrong to deny human beings the equal protection of the law on the basis of race. The fact that it only became unconstitutional and illegal in 1868 did not make it any less wrong in 1791. On the same principle, the exclusion of same-sex couples from marriage always denied them the equal protection of the law. The fact that we are only realizing it now did not make it any less unconstitutional in 1868.  The constitution is not a guide to right or wrong, it is a set of rules by which the organs of our government are bound. As our understanding advances, the implications of those rules change. Now that we know that marriage discrimination deprives millions of our citizens the equal protection of the law, we are bound by our own constitution to the establishment of marriage equality. 

Tuesday, June 19, 2012

Connecticut (II, redux) Senator Richard Blumenthal

Today I correspond with Senator Richard Blumenthal, Democrat, junior senator of Connecticut:

To the Honorable Senator Richard Blumenthal,

       Since your recent election to the Senate, you have been an outspoken opponent of marital discrimination, co-sponsoring the "Respect for Marriage Act" that would repeal DOMA and secure the rights of same-sex couples at the federal level. Though this is a courageous and necessary step, full civil rights will not be extended to eveyone until rights of marriage equality are secured for all Americans living in all states of the union. To that end, I would like to see the federal constitution amended to read: "The right to marry shall not be abridged or denied by the United States or any state on account of sex or sexual orientation." If you would propose such an amendment to Congress, it would broadcast to the world the sincerity and commitment of those of us on the right side of this issue. Proponents of atrocities like DOMA and Proposition 8 wrap themselves in the cloak of tradition and piety. The time is right to let the world know that those of us who believe in marriage equality do so on the basis of principles and values that we hold no less sacred, and that we would see these values enshrined in our nation's basic law.
       Please give some thought to this idea, and consider acting on it in due course. In any case, I hope this communication finds you well, and thank you for your attention on this matter.

               Sincerely,

                Andrew Meyer

Saturday, June 16, 2012

Arizon (II, redux) Senator John Boozman

After a long hiatus, I correspond with Senator John Boozman, who defeated Blanche Lincoln to become Arkansas' junior Senator in 2010.

To the Honorable Senator John Boozman,

       I write to you in protest of your opposition to marriage equality for all Americans. In response to President Obama's recent support of marriage equality, you objected, declaring that discrimination in favor of heterosexual couples is "the way it has been for centuries and I don’t think we need to change that.” You also provided the excuse of your status as a representative, asserting that "the vast majority of [Arkansas] feels like [marriage] should be between a man and a woman."

      Both of these arguments are specious, and beneath the dignity of your office. Centuries ago marriage was a vastly different institution than it is today. Wives were considered the chattel of their husbands, couples of different races could not marry, individuals could be forced into marriage against their will. All of these practices, despite having been supported by large majorities, were recognized as being incommensurate with basic civil rights and reformed, just as discrimination against same-sex couples will end in our lifetime.

      I urge you to consider your legacy and to cross over to the right side of history. Future generations will remember those who stood for discrimination as the enemies of progress. Rather than voting to amend the U.S. constitution to strip citizens of their rights, as you have done, you should support the amendment of the constitution to end discrimination and to secure the 1,138 rights and benefits of marriage under federal law for all citizens: "The right to marry shall not be abridged or denied by the United States or any state on account of sex or sexual orientation." Enshrining this principle in our basic law will advance the fulfillment of the founding principle of our Republic.


      Thank you for your attention on this matter. I hope this communication finds you well.


         Sincerely,


          Andrew Meyer

Thursday, May 19, 2011

Cut the Glitter

Though it has been a shamefully long time since I posted on this blog, a recent event compels me to speak up. On Tuesday, May 17, activist Nick Espinosa dumped a box of glitter on GOP presidential candidate Newt Gingrich, in protest of Gingrich's opposition to marriage equality. Though I would agree that, "Anyone telling people who [sic] they can and cannot love is offensive, especially coming from a serial adulterer like Newt," I cannot approve of Espinosa's actions. Condemning and even embarrassing those who would discriminate against their fellow Americans is legitimate, but no political protest is acceptable that actually trespasses upon the physical person of the target.

This principle has become especially urgent in the wake of the shooting of Representative Gabby Giffords, and does not apply only in the movement for marriage equality but for all Americans of any political persuasion. Though glitter may seem harmless and "fun," Espinosa's use of it exposed vulnerabilities in Gingrich's security that might be exploited by those who mean him actual harm. Security personnel are acutely aware of this fact, and will adjust the public profile of Gingrich and other similar public figures to close off these vulnerabilities in future. Even if incidents like Espinosa's don't open the door to further violence, the sum effect of such actions will be to radically curtail the accessibility of all figures across the entire political spectrum, bleeding our civic life and politics of much of its dynamism and openness.

As a society we must adopt a "zero tolerance" policy to any and all physical assaults on public officials and politicians. Either the persons of our officials and politicians are sacrosanct, or we condemn ourselves to living in a police state in which the "political class" is forever insulated from the public it serves. To pranksters like Espinosa, I say: cut the crap. Speaking truth to power with humor is all fine and good, but physical comedy is not a funny matter when it comes to politics.

Wednesday, May 26, 2010

Illinois (II) Senator Richard Durbin

Today I resume my correspondence with Senator Richard Durbin, Democrat, senior senator from Illinois:

To the Honorable Senator Richard Durbin,

I write to you seeking your support for a constitutional amendment that would end the discriminatory practice of marriage in our country. Such a Marriage Equality Amendment would read: "The right to marry shall not be abridged or denied by the United States or any state on account of sex or sexual orientation."

During the Bush administration, you repeatedly voted against proposed amendments that would have permanently institutionalized marital discrimination in the United States. That defense of basic civil rights was laudatory, but it is not enough to defend against travesties such as the so-called "marriage protection amendment," for the status quo as it stands in most of the Union is an intolerable breach of the rights of millions of Americans. The Fourteenth Amendment guarantees "equal protection of the laws" to all citizens, yet thousands of couples and their children are denied the 1,138 protections and benefits deriving from married status under federal law in deference to the social prejudices of a portion of the population. The constitution must be newly amended, therefore, to clarify the scope of the "equal protection" clause and secure the basic rights of "life, liberty, and the pursuit of happiness" for all Americans.

You have been an outstanding leader in the cause of promoting American support for human rights abroad, please consider joining this fight to promote civil rights here at home. I thank you for your attention and hope that this message finds you well.

Sincerely,

Andrew Meyer