Stephanie Coontz: Activism or facing reality?
[Ms. Coontz is a teacher of history and family studies at Evergreen State College, Olympia, Wash.]
With several state supreme courts due to rule on suits from same-sex couples demanding access to marriage, conservatives must be delighted to have a Justice Samuel Alito. During his confirmation hearings, Alito argued that judges should interpret the Constitution based "on the meaning that someone would have taken from the text... at the time of its adoption."
But if courts had held fast to the meaning of marriage as it was in the days of our country's founding, marriage would still be based on the legal, political and sexual subordination of women.
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.
As late as 1911, the U.S. Supreme Court invalidated 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.
However, as the 20th century progressed, courts increasingly found it necessary to reject many traditions. 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 continue denying that spouses had separate identities. In 1967, the U.S. Supreme Court ruled against laws banning interracial marriage.
The New Jersey Supreme Court rejected the legal doctrine of wifely subordination as "anachronistic" in 1980. These activist judges said the law must recognize that wives were now "their husbands' partners, not their servants." By the mid-1980s, courts also were 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 intent of the framers of the Constitution. 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....
Read entire article at Philadelphia Inquirer
With several state supreme courts due to rule on suits from same-sex couples demanding access to marriage, conservatives must be delighted to have a Justice Samuel Alito. During his confirmation hearings, Alito argued that judges should interpret the Constitution based "on the meaning that someone would have taken from the text... at the time of its adoption."
But if courts had held fast to the meaning of marriage as it was in the days of our country's founding, marriage would still be based on the legal, political and sexual subordination of women.
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.
As late as 1911, the U.S. Supreme Court invalidated 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.
However, as the 20th century progressed, courts increasingly found it necessary to reject many traditions. 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 continue denying that spouses had separate identities. In 1967, the U.S. Supreme Court ruled against laws banning interracial marriage.
The New Jersey Supreme Court rejected the legal doctrine of wifely subordination as "anachronistic" in 1980. These activist judges said the law must recognize that wives were now "their husbands' partners, not their servants." By the mid-1980s, courts also were 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 intent of the framers of the Constitution. 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....