Same-sex marriage opponents have said, over and over, that denying equal marriage rights to same-sex couples is justified because same-sex couples cannot naturally concieve children together. Legal marriage is based, according to this argument, on heterosexual fertility.
But here’s a question. According to Stephen Nock – a scholar often cited as an expert by SSM opponents – “the traditional fault-based grounds” for ending marriage in the United States include “felony life-or-death convictions, physical or sexual abuse of a child or of the spouse, adultery, and abandonment.” (See “Marriage Law: Obsolete or Cutting Edge?” in Michigan Journal of Gender & Law, 10 Mich. J. Gender & L. 21, 2003).
If fertility is the core of legal marriage in the US, then why was infertility not a traditional fault-based ground for divorce?
Abuse was – so clearly, treating each other decently, without violence, is a core legal requirement of marriage in the USA.
Adultry was – so clearly, fidelity is a core legal requirement of marriage in the USA.
But ability to bear children was not a traditional ground for fault-based divorce.
How on earth did the legislature and the courts overlook that, since – according to SSM opponants – bearing children is virtually the only legal justification for marriage?
(P.S. Yes, I know I posted this general line of thought before – but I didn’t get an answer then, plus I didn’t have the Stephen Nock reference then, so what the heck.).
Why? Because the anti-SSM bigot faction (which, I believe, are the ones that put forth this argument) have the facts backwards. At least the possible facts as they relate to the marriage/procreation ruse.
Let me try to make this coherent so early in morning—
If I were in their shoes I would be arguing that the primary purpose of marriage is to insure that people who procreate remain together as parents. At least as far as our society goes (can’t speak for the whole world you know). Think about it. We’ve never cared if married folks didn’t have kids. We’ve accepted that throughout our history. What we, as a society, have a problem with are unmarried folks having kids. Think of that favorite derogatory term “Bastard”. Just part of society’s way of saying you better be married if you’re having kids. Because society knows that children are far better served by having 2 parents care for children.
But, hey! That doesn’t do anything to keep homos from gettin’ married. Maybe that’s why they ignore the true case in which they can argue the marriage/procreation tie.
(Was that comprehensible? If not, I’ll try to make it more clear when my brain is warmed up)
How do you know that sterility/infertility was not grounds for divorce? And how do you know what were the grounds for divorce in 50 states?
I ask because the simplest Google search reveals articles stating that sterility/infertility ARE or were grounds for divorce in at least some states. See this article about Tennessee or this article about Pennsylvania, for example.
Not that it makes any ultimate difference to the gay marriage issue, but I prefer honesty over making stuff up.
One reason is that “but think of the children!” has become a tried-and-true staple in the cynical political manipulation of the electorate.
Well, according to state divorce laws, infertility is not grounds for divorce in Tennessee. Ditto with Pennsylvania.
If it is true that PA used to allow divorce based on fertility, then that fact only strengthens Ampersand’s point. The state must have removed that requirement from fault-based divorce proceedings for a reason, and I’m guessing it wasn’t for the benefit of SSM proponents.
Besides, as long as infertility isn’t grounds for divorce in even one state, it’s true that marriage has nothing to do with an ability to have children.
Well, see, most states adopted no-fault divorce in the 1960s or 1970s, which made it irrelevant to allow fault-based divorce except for the most awful situations. If Amp is going to talk about what was a “traditional” reason for fault-based divorce, then he should actually look at whether those “traditional” reasons did include infertility.
If changing the law to allow no-fault divorce doesn’t invalidate the status of with-fault-divorce-only as the traditional correct form of marriage, then I don’t think that removing infertility as a grounds for with-fault divorce doesn’t necessarily change the status of infertility as a traditional correct grounds for divorce. SSM opponents may just want to reconsider their time period of reference, reaching back past Nock’s ideas to the days when infertility counted. It seems pretty clear that for centuries infertility (on the part of the wife) was grounds for divorce, even if the law has changed since then. Heck, failure to give birth to a son used to be an acceptable grounds.
Not that it makes any ultimate difference to the gay marriage issue, but I prefer honesty over making stuff up.
Joe, I’m getting sick of your “I’m going to go to Amp’s site and insult Amp personally” attitude. I dobn’t treat you like that; is it really so hard for you to treat me with basic civility?
Even if you do catch me in a mistake, that doesn’t show that I’m being dishonest. It’s not as if you’ve never made a mistake in your life. But it’s as if you beleive that by virtue of disagreeing with you, I’ve given up any claim to being treated with human decency.
I did not “make it up.” I quoted an expert from a law journal – an expert whom your side of the debate has often relied on, and so who can’t be accused of having a pro-SSM bias. I had no reason to think he’s unreliable.
Nonetheless, his comment clearly didn’t apply to Tennessee and Pennsylvania historically. I don’t know (and you don’t know, either, I suspect) if he was really mistaken regarding the USA in general.
Finally, as Hestia’s links show, both Tennesee and Pennsylvania maintain both fault and no-fault divorce laws. It’s absolutely correct that infertility is not legal grounds for fault-based divorce in either of those states today, which suggests that they didn’t think maintaining the infertility grounds was as important as maintaining the other grounds. And you’re making the pro-SSM case for me when you argue that infertility is apparently not “the most awful situation” for a marriage.
How do you know that sterility/infertility was not grounds for divorce? And how do you know what were the grounds for divorce in 50 states?
I know because I checked…
In Massachsetts, according to Boston U Professor Katharine Silbaugh, infertility was never grounds for divorce:
I’m still searching for more examples (in either direction), but this one seems worth mentioning, as Massachusetts is particularly important to the current SSM debate.
Hmmm.. the site I checked listed impotence, but not sterility!
As Ampersand said it is certainly not dishonest to acuratley quote someone. Since Nock talks about ending marriage in the United States, and divorce law actually varies from state-to-state, it is likely that Nock is referring to those grounds which were widespread. To say Ampersand is being dishonest for not researching the history of divorce law in each and every of the 50 states is ridiculous.
For what it’s worth, in Massachusetts–where many SSM-opponents have harshly criticized the SJC for discounting the “procreation argument”–fertility was never grounds for divorce. Furthermore even in a state where fertility may have been grounds for a divorce, it did not make the marriage void from the beginning or force its termination. If the ability to procreate was a necessary component of marriage, it would have done so. Even if a state had sterility as grounds for a divorce that only says one has a right to expect conception in a marriage, and thus one can terminate the marriage (should one wish) if this cannot be achieved. It does not follow, even then, that one has to concieve to be married. And even if one did decide to divorce on these grounds, the marriage is still considered to have taken place.
Tennesse, grounds for divorce:
impotence not sterility.
impotency, not sterility.
impotency, not sterility.
ditto
ditto
The previously cited ages indicate they are up to date as of 1997. It is possible the law was changed after 1997. I found a page indicating that Tennesse’s divorce laws were revised “dramatically” in 2001.
According to this page, Tenesse recognzied sterility a grounds for divorce in 1799 history
There are a few pages indicating sterility at the time of marriage as grounds for divorce in Tennesee. (However, it would seem, I could safely move to Tennesee, as I was fertile at the time of marraige, and only became infertile later. However, I do not have children… so there you go!)
I think I will have to break down and ask my sister (a law librarian) to locate the actual code, and read it. I can’t seem to find the actual code on line. (Although, I’m sure it exists.)
As to Tennesse, my sister got back to me…
Sterility at the time of marraige is now grounds for divorce in Tenn.
She does not have immediate access to the *historical*records for Tenn. and it seems they were revised recently.
Based on the citations at the bottom of a huge number web pages which reference actual TN codes, it would appear likely that sterility at the time of marriage was *not* a grounds for divorce in 1997. (However, this may not be the case, and it may be that all the web pages edited the wording of the TN statue identically, all chosing to the “sterility” ground. This seems unlikely, but you never know. )
As to Amp’s statement that sterility is not a “traditional” ground for divorce, it isn’t. He is absolutely right. It has never been grounds for divorce in many states.
That is to say: State Legislator over look this “essential” item over and over.
Sorry Amp, I shouldn’t have said that you were dishonest.
Anyway, I’ve always heard that sterility or impotence can be grounds for annulment, so one might find something related to that. Like this site claiming that impotence is grounds for annulment in Florida, or this site about Connecticut, or this site about impotence being grounds for divorce in Massachusetts. The impotence might have to have been a secret, though.
I’d guess that the most that anyone could say is that states have had a patchwork of approaches to annulment or divorce over the years. Again, this isn’t that big an issue.
Joe,
Note there is a huge difference between impotence and sterility. As the site on Florida you linked to says:
A lack of physical capacity to consummate the marriage may also be sufficient grounds for annulment, although impotency should not be confused with sterility
Also note, (again from the Florida site)
If the person seeking annulment is aware of the defects and nevertheless confirms the marriage, it is deemed ratified and not later subject to annulment.
A person who marries someone knowing they are impotent cannot subsequently annul the marriage on those grounds. So the physical ability for intercourse is not required.
There is also huge difference between a marriage being void and a marriage being voidable. Even impotence does not make the marriage void, it just makes it voidable. For example the CT site you linked to cited a case stating a bigamous marriage is not merely voidable, it is void. The difference is a void marriage has no validity regardless of whether the parties consent. A voidable marriage can be voided only by a party to the marriage and then only if promptly raised. If even intercourse were an essential requirement of marriage, such marriages would be void and not just voidable.
What’s interesting to me is not so much the lack of statutes dealing with sterility, but more the preponderance of statutes dealing with impotence. What those two, in tandem, seem to suggest to me is that:
A) The ability to have children isn’t considered (and generally hasn’t been considered) a vital component of marriage.
B) Sexual compatibility IS a vital component of marriage.
In other words, the impotence statutes, in a roundabout way, support SSM. They’re saying, “it’s important that you be able to have mutually satisfying sex with your wife or husband, regardless of the ability or choice to make that sex reproductive,” and I agree.
—JRC
The other two ideas that come up over and over are:
1) Companionship is important. If you just up and leave for a long time, your spouse has grounds to divorce you. This is slightly related to sex, but not completely.
2) Financial support is important. If you’ve got money, and you refuse your spouse food and shelter, they’ve got grounds to divorce you.
I think Amp is quite right that the argument that “the purpose of marriage is to produce children” is specious. However, I think the legal history is not necessarily clear-cut.
The Tennessee Code provides:
36-4-101. Grounds for divorce from bonds of matrimony. The following are causes of divorce from the bonds of matrimony:
(1) Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;
There’s no easy link, because it’s on a framed site that Lexis generates. The Tennessee legislature’s site is a starting point. Click on Legislation, then Tennessee Code, and go from there to Title 36. There’s no way to tell when this provision was adopted, so lucia may be right that it’s recent.
(Interestingly, TN also provides for divorce in cases where … “(7) Either party has attempted the life of the other, by poison or any other means showing malice” (emphasis added). I’d love to see case law on that provision, to see which means of attempting to murder one’s spouse don’t involve malice. Killing her softly with his song, perhaps.)
This site claims that “sterility or impotence” was one of the available grounds when divorce was first permitted in Pennsylvania in 1785. I can’t vouch for its accuracy; I know nothing about the site or PA law.
This site suggests that “Wife’s concealment of sterility” (as well as “Marriage induced by concealment of impotency”) is fraud sufficient to justify an annulment in Connecticut. Search for “concealment” on that page. Again, no way to tell when adopted. Other states, such as Washington, refer to “Fraud involving the essentials of marriage,” and I suspect that caselaw would show that to refer to fertility of either spouse.
This site asserts that divorce was compulsory in cases of sterility under at least some interpretations of ancient Jewish law. (Scroll down about 60% or search for “sterility”). I have absolutely no idea whether that’s accurate.
This site asserts that divorce was compulsory in cases of sterility under at least some interpretations of ancient Jewish law. (Scroll down about 60% or search for “sterility”). I have absolutely no idea whether that’s accurate.
Interesting, in this case, Abraham should have divorced Sarah.
(Yes.. I know Abraham predates Leviticus and all Jewish law… I didn’t pay much attention to the nuns.. but I did catch this.)
Actually the “ten years” thing was based on Abraham. Supposively that is how long he waited before he took Hagar as a concubine, and thereafter conceived Ishmael with her. It wasn’t so much that the man had to get a divorce, but rather he had to marry another. At one time the two were not mutually exclusive. Even the Talmud, though, mentions some conflicting opinions about this whole concept. And I believe there is no record of anyone ever being compelled to divorce or even marry another because of infertility. It was grounds for a divorce, but so was bad breath. And a man historically didn’t even need grounds in Jewish law if he wanted to divorce. Jewish law was unique for its time, though, in that the woman was allowed to remarry after divorce.
Tom T, it doesn’t appear that infertility/impotence are grounds for fault-based divorce in TN, just divorce in general. (Title 36, Chapter 4)
Not that it invalidates your point, just that it’s not quite what Ampersand was talking about.
“Habitual drunkenness or abuse of narcotic drugs” are grounds for divorce, too, but alcoholics and drug abusers can get married.
Tom said:
“(7) Either party has attempted the life of the other, by poison or any other means showing malice” (emphasis added). I’d love to see case law on that provision, to see which means of attempting to murder one’s spouse don’t involve malice. Killing her softly with his song, perhaps.)
It does sound odd. Maybe the wording is influenced by the concept of “mercy killings” or euthenasia.
It may be that Tenn. forsaw the possibility that some defendant might claim they were not malicious when they tried to poison their spouse. Poison or drug overdoses are sometimes used for mercy killings. The defendant would claim they were planning a mercy killing!
In the event that the spouse ton the mercy-hit-list objected to the idea of being put out of their misery, they have grounds for divorce. (Presumably, the “angel of mercy” has other legal problems to deal with.)
I hope I’m not being redundant but I really don’t think this has been stated clearly:
Recognizing infertility, impotence, or any sort of sexual incompatibility as grounds for divorce did not mean that “the purpose” of marriage was to encourage reproduction or sex. It just meant that sex and reproduction were considered to be things that should be available to anyone who wanted them, within the social strictures of the time – which included sexual fidelity.
That is, if your spouse married you in hopes that monogamous sex and/or children would be part of the relationship, then it is not fair for you to demand that the marriage continue if you are totally unable to provide same. Of course this assumes that it’s really terrible to go outside of the relationship for sex, or to raise a child that’s not biologically yours. Both of those notions have changed to varying degrees – and of course it’s all irrelevant if no one can be forced to stay in a marriage anyway.
I think it’s a subtle but important distinction. Our ancestors didn’t seriously believe that without marriage and divorce laws, people wouldn’t have enough kids. They just thought that it was immoral to sleep with someone you weren’t exclusively committed to, and/or to avoid taking care of your own kids. They would have applied those principles to gay couples too, except they also thought it was immoral to be gay.
and of course it’s all irrelevant if no one can be forced to stay in a marriage anyway.
In Arizona there’s been a recent move by the Mormon and Fundamentalist community to introduce “Covenant Marriage” into the resolution, which has to be agreed upon by both parties initially, but would require proof of fault in order to terminate. Which is of course terrible, since abuse is very hard to prove in court unless it is particularly violent and leaves terrible injury.
Don’t get me wrong, Eli, I agree with what you’re saying, just noting that this particular statement is unfortunately not true.
My take on the wording of the Tennessee code provision permitting divorce when “Either party has attempted the life of the other, by poison or any other means showing malice,” is that “showing malice” is intended to differentiate between negligent (or maybe even reckless) acts and those showing some overt hostility to the victim. I don’t think the legislators of Tennessee had mercy killings in mind — I think they were thinking about car accidents, household accidents, and the like.
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What this shows is not that that procreation has nothing to do with marriage, but rather that there is no individual right to procreate. A person who marries an infertile person is stuck with that person. And adultery laws were still in effect, they aren’t exempted for infertility. So the conclusion of this thread should be that there is no right to procreate, no right to use D.C.. All there is is a right to marry and attempt to procreate with your spouse and only your spouse, for life, unless the spouse provides cause for divorce, such as drunkenness or abuse or something.
any comments on this?
All right, I’ll bite. Did you bother to read any of this thread? Your second sentence is absolutely false. Go back and read through the comments and then feel free to try again.
Yes, I did, though I might have missed some comments. But no one showed that Amp was wrong, as far as I saw, though people cited some exceptions. The basic point is true – infertility is not traditional grounds for divorce. You are stuck with an infertile person, and denied a “right” to procreate, if your spouse doesn’t do anything else that is grounds for divorce.
and jake – i look at your first post on this thread and am mystified. That IS what the anti-SSM side says. Society doesn’t care if infertile people get married simply because that isn’t a problem, and there are all sorts of reasons they should marry anyway. But the SSM side seems to think it’s a big problem, and some sort of inconsistency.
As for a reason to stop people from marrying someone of their own sex, the anti-SSM side generally says that same-sex couples, who don’t have a possiblility of reproducing, deserve benefits and proections of marriage, and that their being allowed to marry would mess up the meaning of marriage. Plus, there’s now a need to prohibit same-sex couples from attempting to procreate, due to the high risk of birth defects, and to do that is to also prohibit SSM.
i mean “same-sex couples, who don’t have a possibility of reproducing, don’t deserve benefits and protections of marriage…”
(I’d rather not have to post this correction, because it ought to have been clear what i meant, but someone would probably find that error to be the thing to comment on.)
Except that what is “traditional” in divorce is no longer the case.
So, as soon as I show the correct way to interpret the fact that infertility is not a traditional grounds for divorce, the whole subject is not relevent anymore? I didn’t see you making this point earlier in the thread. Yes, there is now no-fault divorce, but it is NOT because now there is an individual “right to procreate”.
Zablocki was decided in 1978 (Eisenstadt was 1972), and made it very explicit: “if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.”
And note that Wisconsin was a pioneer of no-fault divorce going back to the 1860’s, with their modern law going into effect in 1977, a year before Zablocki was decided. So, mythago, no-fault divorce didn’t change anything about marriages being the only thing that has a right to procreate, anyway.
Let’s see if I have this right, Johnny:
Marriages are not created for procreation, but one can (or should) only procreate within a marriage. Only a two-parent heterosexual relationship can raise proper children.
Homosexuals should not, or can not procreate, and therefore would undermine the spirtual nature of marriage, and should not get married.
Fertiltiy treatments lead to eugenics.
Totally ignoring dictionary.com, and Webster’s, a human is only completely human in a heterosexual state-sponsored relationship.
Is that about the gist of your beliefs?
no, antigone, you don’t have it right, you’ve made a lot of majorly offensive mischaracterizations. Plus, you totally didn’t address the point in this thread, and Ampersand doesn’t like that. Try again.
Lemme try: Men and women should only copulate with an audience in a field of poppies with fairies sitting on their toes and elves holding their clothes?
How does a marriage, which is a legal bond, procreate? I thought men and women did that.
How does a marriage, which is a legal bond, procreate?
It buds. Just like yeast does.
“… a human is only completely human in a heterosexual state-sponsored relationship.”
State-recognized. Some states recognize marriages entered into at the common law (not the same as a “common-law” marriage). The number of states that recognize marriages at the common law, entered into within the geographical boundaries of the relevant state, is dwindling. All states recognize marriage at the common law if the state within which geographical boundaries recognized them at the time the marriage was entered into.
Marriage at the common law is available only to male-female partners who are of age and competent to consent to marriage. “Consent to marriage” is not the same as “consent to fornicate.” Persons below the age of consent to sexual intercourse may marry if they are above the age of consent to marriage. In at least one state a fifteen year old girl may marry, with parent/guardian/court approval. Under 15 requires court approval in that state.
This is seen as preferable to prosecuting the girl for fornicating and the boy or man for statutory rape, if in the best interest of the girl.
Longstanding is the principle that by legislation the meanings of words cannot be expanded. They can only be restricted in scope. If legislation could expand the meanings of words no one could know what the meaning of the law is.
Longstanding is the principle that by legislation the meanings of words cannot be expanded.
Fascinating is this argument. Where did you find this principle, exactly, and what does it have to do with marriage?