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Judges march
3 weeks ago
A gay man's view of the world from down Texas way
C I V I L M A R R I A G E I S A C I V I L R I G H T.A N D N O W I T ' S T H E L A W O F T H E L A N D.
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| Jane Lynch as Maggie Gallagher in the courtroom drama 8, which aired live from Los Angeles last weekend; catch the whole video here. |
Research commissioned by the Third Way, a moderate think tank in Washington, illustrates how this might look. A team of research psychologists conducted in-depth interviews with members of the “moveable middle,” or those considered open to supporting gay equality but not yet fully there. They used psychological tools to identify their subjects’ emotional states and concerns around issues of gay equality. What their research revealed were subconscious anxieties around what they perceive to be a world spinning out of control, a feeling exacerbated by a sense that new understandings of old institutions are being forced upon them. Some may oppose same-sex marriage in an effort to seize control and bolster values they see as besieged. . . .
Equality Maryland, the state’s major LGBT equality group, recently helped secure the freedom to marry with a message that gay people, like straight people, seek to “make a public promise of love and responsibility for each other and ask our friends and family to hold us accountable.” The values that would be more likely to appeal to liberals who already endorse same-sex marriage—those of individual rights and entitlements—were not the message. In her forthcoming book, Supreme Court lawyer Linda Hirshman argues that a rhetoric of moral values, which itself strikes many as conservative, was the gay movement’s “surprise weapon” in beginning to win the freedom to marry. Telling the stories of heroic caretaking throughout the AIDS crisis and of committed relationships through thick and thin, advocates stopped relying on feeble appeals to tolerance, and showed naysayers that gay people shared their moral values and deserved equal treatment.
This doesn't mean that liberal equality advocates must turn more conservative in order to advocate to the middle. What it means is recognizing the common ground that already exists, in the form of what I’d call “sub-values” (responsibility, fairness, respect for tradition, sanctity) within the larger values debate around homosexuality.
This was convincing to Ted Olsen, former solicitor general under President George W. Bush, who explained that he joined a constitutional challenge to California’s gay marriage ban to protect conservative values: “We believe that a conservative value is stable relationships and stable community and loving individuals coming together and forming a basis that is a building block of our society, which includes marriage.” Along the same lines, after discovering in their research that some moderates were offended by seeing same-sex couples throwing weddings in jeans or during parades, Third Way recommended that gay and lesbian couples find a way to signal they took marriage seriously, appreciating the sanctity of such a solemn commitment.
But I didn’t expect that she had thirty-two hours of jail time ahead of her, and I had thirty-two hours of trying, mostly in vain, to find out where she was and what was going to happen to her. . . .
[After her daughter was finally released:] On our way home, Lilah told me that when she was arrested, she had simply been standing in the street. She was asked to move, but she couldn’t, because it was packed with people and there was no room. She was shoved backward with a nightstick poke to the stomach. Then she was pepper-sprayed. Then she was forced to the ground, zipline cuffed, and pulled by her wrists so hard it felt as if her shoulder was about to dislocate. She was given no information about her charge or her status for the thirty-two hours she was in custody—not a thing, not until she walked into her arraignment.
After we got home, Lilah went to the doctor. She has nerve damage to her wrist. She’s wearing a wrist brace. She has bruises all over her arms. So she has her battle scars. Lilah’s great-grandmother marched as a suffragette, her grandmother marched against the Vietnam War, I got arrested protesting nuclear weapons, her sister has attended every OWS protest in New York. We’re a traditional family.
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| Unknown couple in a tintype - from the 1850's, I'd guess by their costumes. |
The legal status of women under the common law may be briefly stated. It was simply that of a slave. A married woman under the common law owned no property, except after the death of her husband. She could make no contracts, not even for necessaries and not even with the consent of her husband. She could not will or devise her property. Upon her marriage the husband and the wife became one--and that one was the husband. He was master, the wife was a nonentity. The moment she married, he became entitled to all her personal property. He was entitled to the rents and profits of her real estate, which he could sell for his lifetime, or it could be sold for his debts. If she died, the husband still possessed the right to the rents and profits of all her realty for the rest of his life, while at his death she received only a child's part of his personalty and a life right, called a dower, in only one-third of his realty, and for a long time under North Carolina law she could be deprived of even this, for, if he chose, he could sell his realty without her consent and deprive her of dower. She could not appoint a guardian for her children even when she outlived her husband.
As to her personal rights, the married woman came under the absolute control of her husband, who could chastise her if he saw fit, provided the chastisement inflicted no permanent injury. The reason given for this by Judge Pearson as late as 1868 was that it was the husband's duty to "make the wife behave herself," and if he beat her without good cause it was held that the courts would not punish him, because it was too small a matter to take notice of, unless she was permanently injured. The reason seems to be worse than the decision. The husband had the right to imprison his wife, and if in her terror she was driven to take his life, she was guilty of petty treason, as was a slave who took the life of his master, and the penalty as to both was to be burned alive at the stake. This last law was not repealed in North Carolina till 1793, and even after the Revolution, in Iredell County [1787] a widow was thus "drawn and burned at the stake" for the murder of her husband. There were doubtless other cases if the records have not been destroyed by the lapse of time. This was the law in England for many centuries. . . .
If, conditions becoming intolerable, a wife left her husband, at common law he had the unquestioned right to bring her back by force, like any other runaway slave. About twenty years ago, in the famous "Clitheroe case," this was done, but the highest court in England, without any change by statute, reformed the common law and set the woman free. Old-fashioned lawyers were shocked, and asserted that this was the end of marriage; but the prophesied evil has not materialized. . . .
In this State, down to 1899, in at least two sections of our Code "married women, infants, idiots, lunatics, and convicts" were placed in the same category. Practically they have been more or less deemed in that category, in all respects, by decisions of the courts til these have been overruled by the Constitution or by legislative enactment.
A single woman was held fully capable of contracting and controlling her property. On marriage she instantly lost that capacity. The fact of marriage proved her in the eye of the law fit to be classed with idiots and lunatics. In view of the legal status of married women at that time, it may be that there was some force in the idea. . . .
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| Unknown male couple in a daguerrotype from the 1850's. |