"Activist Judges" or "Re-activist" Judges?

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Ms. Coontz is the author of Marriage, A History: How Love Conquered Marriage. She teaches history and family studies at The Evergreen State College, in Olympia, Wash, and is Director of Research and Public Education at the Council on Contemporary Families.

According to President Bush, we must protect the institution of marriage by preventing"activist judges" from tampering with its time-honored traditions. But marriage has been in constant evolution for thousands of years. If judges and governments had not responded to the demands of ordinary people to democratize and humanize its rules and workings, few modern Americans would be interested in entering it.

Until 200 years ago, marriage was based on the economic and political interests of elites and on the authority of men over women. In the middle and upper classes, parents arranged their children's marriages with an eye toward their own gain, completely ignoring the desires of the two individuals involved. Poor people were often not allowed to marry at all. But under the influence of the Enlightenment and the American and French Revolutions,"activist" judges and legislators began to deny that the older generation had the right to dictate the marital choices of the young. They repealed laws that invalidated marriages made without parental consent.

However, our Founding Fathers were not yet ready to tamper with the time-honored marital tradition of giving the husband total control over the person and goods of his wife. When Abigail Adams suggested that her husband, the future President John Adams, write protections for women in the Constitution, he replied that the very thought made him laugh. Husband and wife"are accounted one person," said prevailing opinion,"and he hath power over her person as well as estate." In 1861, the New Jersey Supreme Court ruled:"The husband is entitled not only to all the personal property which the wife owns at the time of her marriage, but to all that she acquires by her skill or labor" during the marriage.  A father's claim to custody of children, even infants, was"entirely axiomatic."

In the mid-nineteenth century,"activist" judges responded to demands of the emerging women's movement and its male supporters by expanding the legal and economic rights of wives. To the dismay of many defenders of traditional marriage, they even began to rule against the traditional right of men to"physically correct" their wives or imprison them at home. But as late as 1911, the U.S. Supreme Court resisted this trend, invalidating a statute that allowed wives in the District of Columbia to sue for damages on their own behalf. A lower court had interpreted this statute as permitting a battered wife to sue her husband. The Supreme Court majority indignantly dismissed the"revolutionary" idea that wives had such individual legal rights.

While the Supreme Court long refused to recognize that husband and wife might have separate interests, the state courts that had to deal with real marriages increasingly found it necessary to rework tradition. In 1954, the New York Court of Appeals ruled that it"would not be consonant with our present social concepts of husband and wife" to persist in saying that the two did not have separate identities. In 1968, the same court reversed the 150 year tradition that forbade a wife to sue for the loss of emotional, housekeeping, and sexual services in the event of her husband's wrongful death. Formerly, this privilege was reserved for men, on the grounds that only wives were"supposed to render services in and  about the home" and they could not sue for the loss of something they were not entitled to in the first place.

 In 1967, the U.S. Supreme Court joined the rush toward"judicial activism" by declaring unconstitutional the many state laws banning whites from marrying Filipinos, Asians, Native Americans, or African-Americans (a category that was defined by some legislatures as including any individual carrying"one drop of Negro blood").

By the 1970s, the revived women's liberation movement was forcing judges across the country to conclude, as did the New Jersey Supreme Court in 1980, that the legal doctrine of wifely subordination was"anachronistic."  As the court put it, the law must recognize that wives were now"their husbands' partners, not their servants." By the mid-1980s,"activist judges" were also reversing the long-standing legal principle that a man could not be convicted of rape for forcing himself upon his wife.

All these interpretations radically challenged the time-honored traditions of marriage. But the courts that updated and democratized marriage did not suck these new ideas out of their thumbs. They were responding to new social realities as men and women became more equal in public and private life. What are often called activist judges and courts might be better termed reactive.

Our legal system is reacting to a worldwide transformation of marriage that cannot be reversed by constitutional amendment. Today, Americans spend, on average, half their adult lives outside marriage. The last decade has seen a sevenfold increase in the number of individuals who live together out of wedlock. Many of them pool resources, accumulate joint assets, and share caregiving obligations, with or without permission from the state. One-third of the children born today have unmarried parents. Many gay and lesbian couples also are raising children.

These arrangements require types of legal recognition that used to be reserved for marriage. When individuals take on caregiving tasks for each other that would otherwise have to be provided at public expense, they need the legal rights to follow through, such as making hospital decisions or receiving inheritance rights. And if they walk away from a relationship in which they took on such responsibilities, they should not be allowed to abandon the obligations they incurred just because they lack a marriage license. It would be irresponsible for courts and legislators not to respond to these changing realities.

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    More Comments:

    andy mahan - 9/18/2006

    1. The "public policy" exception to full faith and credit would preclude it's application. The feds would not "devolve" power. They don't have jurisdiction.

    2. Slim, because the line of precedent supporting the "public policy" exception.

    andy mahan - 9/18/2006


    Are you me?...but, eloquent? It is so unusual here at HNN that a woman (or a man for that matter) understands the real life affects of adulterating marriage.

    Your incites to the "feminist" agenda and its repercussions is dead on.

    andy mahan - 9/18/2006

    What a sloppy mess. All examples used in the article apply to traditional marriage, not a homosexual union. At the end the author defies logic to apply the wholesale redefinition of marriage as only a change. The overwhelming majority of society does not think marriage should be between two of the same gender.

    As the author seems to understand, “If judges and governments had not responded to the demands of ordinary people to democratize and humanize its rules and workings, few modern Americans would be interested in entering it.” Why can’t the people decide that the sancity of “marriage” be protected and to potentially give the homosexuals another arrangment of another name? They can and will.

    By polluting the legal institurion with such a radical concept that all these years of evolution has not included, is to destroy it. The consequent fraud, polagamy and who knows what, will decimate the basis of our society.

    That aside, the problems that the institution of marriage has today are directly connected to no-fault divorce.

    andy mahan - 9/18/2006

    No doubt you are right as to the question before the S.C. if it gets there.

    But while we are forecasting the future, I'd like to add my 2 cents.
    I doubt the court will grant certiorari. They will effectively uphold the States right to make such laws. The plaintiffs are gonna have to live with it, and the defendants will acquiesce.

    Nancy REYES - 6/25/2006

    "Until 200 years ago, marriage was based on the economic and political interests of elites and on the authority of men over women. In the middle and upper classes, parents arranged their children's marriages with an eye toward their own gain, completely ignoring the desires of the two individuals involved. Poor people were often not allowed to marry at all."
    Exactly what culture are you talking about? This is a Marxist analysis that ignores biology, ethics, traditions, and the ties of human beings.

    You assume marriage is limited to Western Europe...and even then the comment "poor people were often not allowed to marry at all" is so absurd that one wonders where this "fact" came from. (from slaves in Southern US perhaps--but they married nevertheless, jumping the broom to form faithful common law relationships...European peasants married...as did Asian and African peasants).

    Marriage is a universal institution that dates back to prehistory. It protects women and children from abuse, and was the only "social umbrella" for individuals before the "modern" socialistic state. It is the way societies used to encourage the pair bonding instinct of human beings and channel sexual activity and the affection associated with the sexual act into nourishing children. By limiting promiscuity, it lowered STD's and provided for illegitemate children who could not be supported otherwise. "Arranged marriages" often led to love and companionship, since romantic sexual attraction is fleeting, and long term marriage requires a more stable form of love. Parents who arranged marriages usually took more than money into consideration, and Christian churches insisted that the woman had to consent to marriage for it to be valid.

    Your basic argument assumes a radical free individualism that can rely on the state to supply everything that elsewhere is supplied by the family. This idea is quite place specific and, given the population decline in Europe, one suspects is economically and biologically non viable.

    The collapse of marriage as an institution is partly due to the fact that it's reason of being is no longer absolutely necessary. The collapse of marriage as an institution long predates the gay marriage debate...it started when contraception freed men from taking responsibility for their actions, and accelerated when no fault divorce awarded those who did not want responsibility for their wives and children. So, given the fact that marriage contract gives no protection to women, why marry?

    Despite this, the large number of long term "living together" relationship suggests these people have a common law marriage without the useless paperwork.

    This deconstruction of marriage as an institution ignores the lessons of thousands of years of human experience encoded in various religious and common law codes of conduct. Even stripped of it's economic necessity, marriage implies growing up, being sexually faithful to one's spouse/spouses, and caring for offspring. None of these things are popular or promoted as desirable in our consumer culture.

    Given the promiscuity of male homosexuals in partnership, calling this relationship "marriage" goes completely against the deeper meanings of marriage. Economic partnership, yes. Marriage, no.

    However I will allow that faithful lesbians who raise children should be entitled to the dignity of marriage.

    Kevin R. C. Gutzman - 6/18/2006

    Does one have to know anything to post to this site? I found this very interesting -- "When Abigail Adams suggested that her husband, the future President John Adams, write protections for women in the Constitution, he replied that the very thought made him laugh." -- since John Adams was out of the country during the Philadelphia Convention. Abigail certainly did not implore him to write anything into the Constitution.

    John Chapman - 6/18/2006

    I don't believe the point of Ms Coontz's article here had much to do about gays marrying but about women having the same rights as men. As usual, any subject on women's rights is sidelined for some hot topic. Even on HNN.

    Jason B Keuter - 6/17/2006

    impassioned, clear...beautiful!

    Joan Maxine Boost - 6/16/2006

    I do, indeed, defend marriage and family. The historical background so often quoted by the so-called feminists (in reality ultra-egotists) has ceased to exist long ago. Nevertheless, we have seen, in the last two to three decades, a merciless onslaught on everything that would protect relationships built on love and honesty, as well as a secure childhood, adolescence, and reaching maturity.
    That Simone de Beauvoir claimed that marriage and family are "not a proper existence for a woman", and that others called it "slavery for women" only proves thast they were incapable of maintaining or even entering a real relationship. There are loners and bitter spinsters - but why should their (mis-)judgment of happiness be the rule for everyone?
    Whatever they have in their dreams is not in mine. Neither can I feel at home in the world of the NOW Presidentia who said "a woman can only be a feminist if she is a declared lesbian". Nor can I accept that my vow at the wedding does not include a consent of sexual activity. I want it as much as he! The "feminists" who succeeded in declaring that "every heterosexual act is rape" only show how little feminine is in them - if any at all!
    I don't dream of my "right to abortion" either. I am furtunate I did never have to think of it. But if I had to - SERIOUSLY, NOT FOR CONVENIENCE! - it would be a sad day, not one of joyous "right".
    And what about the ultimate weapon against marriage at the moment: DV (Domestic Violence). I know as many bossy, controlling, and even slapping wives or girlfriends - it is quite normal - and not only in the slums; almost more common in the upper classes. So, where do all these lies come from? And what else do they intend but to rip couples apart, and families, and make children fatherless?
    And what is the result: more kids in drugs, crime, down the drain. Is that what those stupid pseudo-feminists want?
    Real FEMINISTS stand by their men, "in riches as in poverty", i.e. don't claim "abuse" on every little dispute just as an occasion to show their power.
    As for happiness: That ME-ME-ME independence is a sad self-isolation. An idividual does not loose by going into communion with another one: THEY BOTH WIN. So do their children - because they won't destroy what they created in love. They won't let them down either.
    That is what marriage means, and family. Yes, it is sacred, because it is Nature's way to happiness and, therefore, HUMAN. And that is what I and my folk wish to remain: human - not some semi-computerized tyrants, just quasi-females with an artificial brain.
    If they want their artificial world, let them go to silicone valley and see what their hearts are made of.

    Andrew D. Todd - 6/14/2006

    Well, four words for you:

    A) Gretna Green




    As near as I can make out, the principal business of the town seems to be the "nostalgia wedding" business.

    B) Nevada Divorce


    look for: "Social Engineering Through Civil Procedure"


    Jason B Keuter - 6/14/2006

    I forgot about that...

    Just for fun, what's your view on how the current court could handle that question. I would be curious to know:

    1. assuming the majority of the court is inclined to devolve power to the states, how would get around the full faith and credit clause?


    2. What is the likliehood that they would interpret the full faith and credit clause in favor of gay marriage? In other words, is such an interpretation of the full faith and credit clause consistent with devolving power to the states?

    Steve Broce - 6/13/2006


    9. Gay partners married in the few states that will allow gay marriage will file suit in states that do not allow gay marriage to force those states that do not alow gay marriage to recognize their marriage under the "full faith and credit" clause of the U.S. Constitution.

    Jason B Keuter - 6/13/2006

    The real problem with the post is its assumption that the question before the courts is going to be the legality of gay marriage. The question is going to be the Constitutionality of State Laws that prohibit it, and on that point one would guess that the Court will not find that the State's have done anything unconstitutional.

    The question then is: will both sides on the debate concede to cultural pluralism, with a myriad of states with an equally myriad number of responses to this question - or will both look to the National Government to enforce their moral vision on everybody else? I believe both sides will want to do the latter, but, because they are minorities, they'll have to live with the former.

    Jason B Keuter - 6/12/2006

    The question remains: is gay marriage constitutional?

    The answer will be provided in the following fashion:

    1. gay couples will challenge state laws banning gay marriage.

    2. The case will find its way to the Supreme Court.

    3. The Supreme Court will decide whether those state laws are Constitutional.

    4. The Court will most likely determine that states can determine such laws.

    5. Some states will have gay marriage and some states will not.

    6. More states will not.

    7. Efforts to adopt an amendment protecting gay marriage will fail and will not be seriously mounted.

    8. The religious right will find that strict constructionism does not work in their favor.