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.”
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?