The Definition of Marriage in 1886

As we’ve been told often by same-sex marriage opponents, the historical definition of marriage has never changed and must never be allowed to change, or else civilization will collapse. (I’m exaggerating their views, but only very slightly). Marriage is, and has always been, about “heterosexual intercourse, child bearing, and child well-being.”

Roderick Long (who is, by the way, a genuine libertarian feminist) points out an opinion written by Judge Valentine of Kansas in 1886, ruling that a couple was not married:

In my opinion, the union between E. C. Walker and Lillian Harman was no marriage, and they deserve all the punishment which has been inflicted upon them. … In the present case, the parties repudiated nearly everything essential to a valid marriage, and openly avowed this repudiation at the commencement of their union.

So what, according to this legal ruling in 1886, was “everything essential to a valid marriage?” Roderick describes the objectionable parts of their ceremony:

What “essentials” had the couple repudiated? In their marriage ceremony Harman had declined not only to vow obedience to her husband (such a vow being repugnant both to her feminism and to her libertarian anarchism) but also to vow love unto death: “I make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act, always, as my conscience and best judgment shall dictate.” She also declined to submerge her individuality in another’s by taking her husband’s last name: “I retain, also, my full maiden name, as I am sure it is my duty to do.” Walker for his part vowed that “Lillian is and will continue to be as free to repulse any and all advances of mine as she has been heretofore. In joining with me in this love and labor union, she has not alienated a single natural right. She remains sovereign of herself, as I of myself, and we … repudiate all powers legally conferred upon husbands and wives.” In particular he repudiated any right as husband to control his wife’s property; he also acknowledged his “responsibility to her as regards the care of offspring, if any, and her paramount right to the custody thereof should any unfortunate fate dissolve this union.” Harman’s father added: “I do not ‘give away the bride,’ as I wish her to be always the owner of her person.”

So she retained her own identity, her own name, and reserved the right to divorce if need be; and he refused the traditional husband’s right to rape his wife, control her property, and own any children of the union.

(Damn, they sound cool!)

In 1886, the idea that a woman owned herself, even when married, and had the right to not be raped was a radical redefinition of marriage, so much so that a court refused to acknowlege it as a marriage at all.

As Roderick points out, if tradition determines what makes a legitimate marriage, then virtually no current marriage in the US is legitimate; coveture laws no longer exist, for example, and nearly all the states have fully outlawed marital rape (although of course it still happens).

Since tradition must always be respected, on what grounds would SSM opponents have allowed marital rape to be outlawed, or coverture laws to be undone?

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33 Responses to The Definition of Marriage in 1886

  1. 1
    Robert says:

    Since tradition must always be respected, on what grounds would SSM opponents have allowed marital rape to be outlawed, or coverture laws to be undone?

    Tradition must always be respected. Being respected and being obeyed are not identical.

  2. 2
    Ampersand says:

    Robert, that sounds great – as usual, you can turn a phrase. But it’s meaningless.

    I’m sure you’re not saying that we owe the tradition that husbands have the right to rape wives any respect. That would contradict your stated opinion that rapists should be executed.

    Furthermore, you’re really just picking at my word choice. I was using the word “respected” to mean “obeyed.” If you want to make the distinction between “respected” and “obeyed,” that’s fine – but, once we’ve made this distinction, it’s obvious that what SSM opponents are saying is that tradition must alwasy be obeyed.

    So your comment doesn’t really answer my question; it just points out that my question could be rephrased.

  3. 3
    Josh Jasper says:

    Tradition must be respected? On who’s orders? The people who make sure what tradditions get respected. It’s a circula argument designed to keep the people in power in power. Nothing more than that.

    Tradition *can* be respected, and many should, but not because tradition is inherently worthy of respect. That’s stupid.

    Amp: I’m sure you’re not saying that we owe the tradition that husbands have the right to rape wives any respect. That would contradict your stated opinion that rapists should be executed.

    I’m not sure at all. I think he’s phrasing it that way to allow him to pick and choose what counts as a tradition, and what dosen’t, and once that’s done, he has a convenient point to which he can go to that will be able to bash epople for not respecting a tradition.

    You give him credit for a lot more intelectual honesty than I do.

  4. 4
    AndiF says:

    I think that it doesn’t matter how they answer the question because there are no rational arguments to be put forward against SSM. These so-called protection arguments are just a cover for that fact the only real objection is religious and/or personal objections based on bigotry.

    When I got married (in 1971), there were people on both sides that thought our marriage was an abomination and who refused to acknowledge it. Our sin — I’m Jewish, he’s Christian. Well, our marriage has survived, the institution of marriage survived, Judaism and Christianity survived. And a bunch of people have over the years actually apologized for their close-minded behavior.

  5. Thats the funny thing about those that make arguments about the ‘traditional’ form of marriage as their ‘defense’ of marriage. It immediately throws up a huge red flag to those of us that study social phenomena, as we all know there really isn’t any thing such as ‘traditional’ marriage.

    When we discuss social institutions like this we always talk about it being in a particular social/cultural/historical context. It would be meaningless outside that, and we really couldn’t talk about any specifics without defining the version of the institution we’re discussing, as the shifting and changing nature of them requite us to do so.

    The ironic thing is that religous marriage has ALREADY been altered to include same-sex couples. There are plenty of religous/spiritual churchs/etc, including some Christian ones, that do already recognise same-sex marriages as equal to those of opposite-sex couples. But yet the fight happening in the legislatures and courts isn’t even about that, it’s about CIVIL marriage, and all these religous conservative bigots that are railing against the tide are putting so much focus on that, when it has nothing to do with them, that they have blinded themselves to the quiet and ever so inexorable change in religous marriage, something they say they are really concerned about.

    (Personally, I’m an atheist, I don’t care about religous marriage. I want to have my life-committment recognised by the state in the same way (and have the same bloody name) as those of all my straight friends).

    But, returning to the topic at hand, there never has ever been just one form of marriage (as is evidenced above) in society and they have never ever remained static in those forms. Even a basic and cursitory study of history and society shows this. Moreover, contemporary defintions of family and marriage easily incorporate same-sex couples in them, as is evidenced by those countries and states that have same-sex marriage and how marriage definitions haven’t really altered much since includinng them. No slippery slopes happening there. Sure, some historical definitions might not have done such, but that certainly doesn’t mean that current ones don’t as well. In fact it’s a whopping great fallacy (or should that be phallacy? *smile*) and a large example of their own ignorance to assert such if they do.

    So what does that leave then? It leaves merely their own bigotry and wanting to take the toys out of the playroom since we won’t play by their rules.

  6. 6
    mythago says:

    Tradition must always be respected. Being respected and being obeyed are not identical.

    Which is precisely why tradition is no argument against SSM.

  7. 7
    rea says:

    on what grounds would SSM opponents have allowed marital rape to be outlawed, or coverture laws to be undone?

    Well, a lot of them weren’t in favor of those changes to “traditional” marriage, either.

  8. 8
    Sara says:

    Their choice to get married both affirmed and transformed the institution (in whatever small way). Kudos to them for the transformational aspect but does the government really have any business sanctioning our sexual relationships? I guess that is up to each of us.

  9. 9
    Myca says:

    Tradition must always be respected.

    So, wait, are you saying that we must ‘respect’ the tradition of marital rape? I mean, call me crazy, but that doesn’t seem like something that needs to be treated with respect.

    How about slavery? Torture? Genocide? Lynching? These are all traditions. Are they all, therefore worthy of respect?

    The use of the word “always” in your phrase transforms it from a statement I merely disagree with into one I find deeply, deeply silly.

    —Myca

  10. 10
    Pseudo-Adrienne says:

    Interracial marriages were once considered to be an “abomination,” and outlawed. Oh but it was “tradition” that we only married within our racial category. Well if we didn’t get over that racist bullshit and ban the interracial phobia from marriage laws, I wouldn’t be here. Thanks mom and dad!

  11. 11
    michelle b. says:

    Re: inter-racial marriage. I’ve found that SSM opponents disagree strongly with that obvious parallel. Of course one has to take it on faith that they don’t secretly oppose that too, because it’s no longer acceptable to admit that publically.

    Is there anything in the Bible that could be interpreted as opposing inter-racial marriage? I don’t know of any specifically, but racial bigots seem to think their opinion is morally based (and if Christian bigots aren’t getting their “morals” from the Bible, where?) They also seem to feel that their prohibitions against inter-racial marrage, SSM marriage, pre/extra martal sex, or even women being employed outside the home (my mother is against all these!) were all established at some distant point, at the dawn of time, and they needn’t cite even the bible as a source. The word “natural” usually crops up at some point.

    It really p*sses me off when my mother says this stuff to my face, because I’m the one with an undergrad degree in history and – one would think – far better informed about the historical reality.

  12. 12
    Robert says:

    I’m going to refer you all to Edmund Burke and Friedrich Hayek on this one. If you’re really interested in why tradition should always be respected – and why that doesn’t mean that tradition should always be followed – then those thinkers are the ones you need to read, far more than my weak rephrasing.

  13. 13
    Ol Cranky says:

    Hey, just because those damned liberal activist judges in some states illegally redefined marriage to allow criminal charges be brought by men who are just taking advantage of their marital right to sex with their wife whenever and however they wish, doesn’t mean all states accepted that redefinition. Don’t you worry, the theocrats will ensure those abominations of of our penal code will be corrected ASAP!

  14. 14
    Emily says:

    Is there anything in the Bible that could be interpreted as opposing inter-racial marriage?

    The Old Testament is very tribal in places: you Israelites, keep yourselves separated from all the other tribes, and don’t intermarry, and sometimes you’re going to have to slaughter the other tribes, including women and children, otherwise you’ll all turn into idol-worshippers.

    But it takes a very stretched, out-of-context argument to think, from that, that inter-racial marriage should be opposed. It often depends on some weird and baseless assumptions about the text.

  15. 15
    shiloh says:

    michelle b. asks,

    Is there anything in the Bible that could be interpreted as opposing inter-racial marriage?

    I’d say no – all the verses limiting spouse choice focus on belief systems. Even when peoples are discussed, members of those people marry into the Israelite tribe somewhere else and the marriage is approved (because the person marrying in embraced the Israelite belief system).

    Moses married a Cushite, and Cush is traditionally somewhere in Africa (most commonly Ethiopia but some argue northern Egypt, IIRC). Miriam and Aaron are scolded for condemning that marriage, so I’d think interracial marriage is specifically approved in the Bible.

    But when has reality of any kind ever slowed down bigotry? Whatever the culture values will be twisted into support, be it religion or science or medicine or magic.

  16. 16
    Sarah in Chicago says:

    Michelle -

    is there anything in the Bible that could be interpreted as opposing inter-racial marriage?

    The thing that you have to realise hon is that there doesn’t have to be anything in the bible to ban interracial marriage. People with bigotries will always find and interpret gospel in such a way that it justifies their own bigotries (I won’t go into my own opinions about the bible itself though *smile*). After all the White Power Churches argue strenuously that there are pieces therein that proclaim them as right.

    I’ve seen some really nice editorials, articles and opinion pieces that took the majorly quoted tenants ‘against’ everything queer in the bible where they are shown to really speak nothing to how being gay today operates. I’m not going to say these versions trump those of the bigots, but it does show how to a certain extent you’ll find what you look for. That said, however, the interpretations of open-minded, tolerant and educated people do tend to have a little more credence in my mind :)

    The book itself is riddled with contradictions, inconsistencies and nonsensical sections, and it’s vagueness allows those that wish to justify whatever way they think to be the right way to think.

  17. 17
    AndiF says:

    What’s more what bible says is ir relevant since it (or any other religious document) cannot be used as an argument against SSM civil marriage.

  18. 19
    Antigone says:

    Well, Solomon was admonished not to marry foreign princesses (something he choose to ignore…man, that guy must have been BUSY) but that again was in the context of religion- they had different beliefs, so it was bad. But it didn’t say “Don’t marry someone of a different belief” it said don’t marry foreigners. *let me dig out my trusty, well-worn, highligted bible, rummage rummage*

    1 King Solomon, however, loved many foreign women besides Pharaoh’s daughter…Moabites, Ammonites, Edomites, Sidonians and Hittites. 2 They were from nations about which the LORD had told the Israelites, “You must not intermarry with them, because they will surely turn your hearts after their gods.”

    Okay, so maybe it was religion, but it was admonished about foreigners. So, there’s your argument against inter-racial marriages. (Or at least, argument about inter-religious marriage)

  19. 20
    Michelle B. says:

    Thanks for all the responses. I hadn’t been able to find any biblical basis myself. However, I’ve never read a Catholic bible.

    The book itself is riddled with contradictions, inconsistencies and nonsensical sections, and it’s vagueness allows those that wish to justify whatever way they think to be the right way to think.

    Don’t get me started on my gripes about the contradictions and fabrications in that thing =) The bible itself is what finally pushed me to leave my church – as if the sexism and homophobia there weren’t enough. Reading the bible’s supposed to strengthen your faith, or so they’d have you believe. But you really have to tell yourself a lot of lies and make a lot of excuses to keep believing in it day after day. I just couldn’t keep doing that after awhile. I think it was the law about women marrying their rapists that broke the last straw.

    The thing that you have to realise hon is that there doesn’t have to be anything in the bible to ban interracial marriage. People with bigotries will always find and interpret gospel in such a way that it justifies their own bigotries.

    I know. Believe me, I know. It’s their rules and they change them as it suits them. Fighting them on their own turf doesn’t work. Still, knowledge is power, right?

  20. 21
    Ol Cranky says:

    Moses married a Cushite, and Cush is traditionally somewhere in Africa (most commonly Ethiopia but some argue northern Egypt, IIRC). Miriam and Aaron are scolded for condemning that marriage, so I’d think interracial marriage is specifically approved in the Bible.

    According to this, iriam made some less than appropriate comments about her sister-in-law’s skin color and was afflicted with a skin condition as punishment for her evil tongue & judgements

  21. 22
    Emily says:

    I’m not sure myself what Biblical arguments were used against inter-racial marriage in the past. The first site I found that actually argued against inter-racial marriage also argued that the “true Israelites” migrated north and west until they got to the US, and so white people were true Israelites (unlike Jews, who weren’t).

    I hope that in a hundred years arguments against SSM seem as wacky as that…

  22. 23
    Dan S. says:

    I’ve read about judges babbling that God placed different races in different parts of the world, so he must have not wanted them to marry – but never anything more concrete than that . . .

    It amazes me sometimes, how little the things I think of as basic modern knowledge hav trickled into the mainstream. The realization that there is no one fixed eternal tradition of marriage, for starters, but many more too . . . There was a NY Times editorial the other day that took a random&irrelevent potshot at Ebonics, screeching at how misguided teachers had wanted to teach street slang (no, Ebonics was pop for African American Vernacular English, identified by linguists as a distinct, regular, rule governed variety among other varities that make up English) and even thought that it was as good as real English!!! (is British English “as good as” American English?)

  23. 24
    John M. Burt says:

    It’s all so very sad. It shouldn’t be this difficult to provide appropriate protection and support for our families — all our families.

  24. 25
    michelle b. says:

    Caring for families, now there’s a radical thought.

    Actually caring for other human beings, ALL humans (and how about animals too?) is less important than following some nonsensical and heartless rules that will supposedly guarantee a pleasant afterlife. These people are so scared that a big, bad daddy god will come and get them someday, that they won’t allow themselves to consider other ideas – any idea that contradicts what they want to believe is “dangerous”, being a humanist is a bad thing, saying certain words – aka swears – is a “sin”, and certain numbers like 666 are magical. If there weren’t so many of them, they’d be in mental health clinics right now, not running our schools and government.

    A comprehensive study of world history, including women’s history and an objective timeline of the invention of Christianity, should be required starting in grade school. Not this lopsided view of history that’s doled out in churches by people who aren’t even qualified.

  25. 26
    Pietro Armando says:

    Is “same sex marriage” a contradiction in terms? How about “gay marriage“? It sounds like the start of an old Henny Youngman one liner that would probably end with”…no marriage is happy!” Ah the good ole days when gay actually meant happy.

  26. 27
    faybaby says:

    I recently completed my doctoral dissertation on the biblical bases for and against interracial marriage in the US, particularly in anti-miscegenation cases from 1867-1967. I argue that there are some fairly clear differences between (white) Catholic and Protestant perspectives/interpretations. If anyone is interested, please let me know.

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  28. 28
    Robert says:

    Faybaby, I would like to know more about that. Admittedly, it’s a year and a half later, but perhaps you’re still here.

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