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We are smack-dab in the middle of a deep philosophical question in the country, and nobody is going to fix it for us.  What is marriage?  Nobody will tell us.

What IS marriage?  LectLaw offers

A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought io exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.

To make a valid marriage, the parties must be willing to contract, able to contract, and have actually contracted.

Generally, all persons who are of sound mind, and have arrived to years of maturity, are able to contract marriage…:

The common law requires no particular ceremony to the valid celebration of marriage. The consent of the parties is all that is necessary, and as marriage is said to be a contract jure gentium (i.e. according to the laws of the people) that consent is all that is needful by natural or public law. If the contract be made per verba de presenti, or if made per verba de futuro, and followed by consummation, it amounts to a valid marriage, and which the parties cannot dissolve, if otherwise competent…

 From the perspective of common and case law, marriage appears to be a special social civil contract that creates an entity known as a marriage.  The contractual status of marriage has emphatically not remained stable at any time in our history.  The marriage contract created a fictional “person” embodying the authority over the marriage, and invested in the husband, for most of its existence in the US.

One piece of foolishness is a blatant appeal to the traditions of marriage. Looking back, there are no traditions of marriage, but accommodation to the fundamental institution. Serial heterosexual monogamy is the normative standard in most cultures and times; the variations around it have been not only great, but unending.

It’s worth reading the recent Supreme Court opinion, flawed as it is, regarding marriage. I suggest that some time be spent pondering the more recent legal standards of marriage from the time of the founding of the American republic – which, despite our prejudices, does not include The Beginning Of Time, but merely a few centuries.

As uncomfortable as it may seem, same-sex marriage went from being absurd to being reasonable, not because of changes in moral perspectives of the American populace, but some seemingly dry and immaterial changes in the balance of property law, contract and inalienability at law. A place for same-sex marriage could not be found in the law of the founders – it appeared as a consequence of the change in other laws, and became credible, not as a newly-discovered fundamental right, but as a consequence of other legal decisions.

The riddle of marriage cannot be understood without the landmark of coverture. Some of the shrillness of Feminist History is comprehensible by studying the contract law of marriage at the foundation of the Republic. A few decent links are shown below:

Obergefell v. Hodges has been authored by Kennedy, and dissented at length by Roberts et al. (see link in this blog.) To catch a good read on the topic, the opinions are linked to Obergefell, [OBERGELL v. Hodges, 135 S. Ct. 1039 – Supreme Court 2015], Goodridge [Goodridge v. Department of Public Health, 440 Mass. 309 – Mass: Supreme Judicial Court 2003], Loving [Loving v. Virginia, 388 US 1 – Supreme Court 1967] and Lawrence v. Texas [Lawrence v. Texas, 539 US 558 – Supreme Court 2003] That ought to cover most of the current case opinions related to marriage.

The pathway into understanding the history of marriage comes from the weakness of the argument of Roberts in dissent to Obergefell.  He praises consistency, uniformity and caution in changing the bedrock of the law.  He criticizes careless response to the whim of prevailing opinion, and quotes Holmes’ dissent in doing so.  He then picks up whim as tradition, citing the Dred Scott decision and the Lochner court as examples of bad opinions; so decided because everybody knows they were, so there.  He falls exactly into the trap of consensus.  Everyone knows that Lochner is bad, for Chief Justice Taft said so; and Lochner, for Justice Stevens agreed.  For Dred Scott, read any high school textbook.

But apparent unanimity of consensus does not substitute for reasoned legal analysis.  Roberts trots out a lazy dissent in calling Obergefell a Lochner-style decision, which means it’s WAY uncool.

To get after the roots of marriage, one needs to briefly review law.  There is the law of private matters, and the law of public matters.  Private matters involve the business of individuals of some sort, corporate or natural.  Public law discusses wrongs defined by the state, as crimes and civil wrongs, that the state must handle, and where necessary, punish.

Private law encompasses the law of torts, or civil wrongs; contracts, or “private legislation” constructed by individuals to specify a certain order to commence in their behavior; family law, or the law of specially defined interactions regarding the family; the law of property, which is the law of ownership of things; and other miscellaneous law that slips my mind at the moment.

Family law once derived from the law of property and possession.  A man owned an establishment called the family, and held possessions: real property, chattel property and domestic (human) property.  Under the principles of coverture, marriage was a transaction by which a human property was added to a man’s estate.  The history of America involves a slow transition of marriage from estate-and-property principles, to more equal contract principles between equal persons.

The balance was honestly stated in 60 U.S. 393 Scott v. Sandford, (LINK) merely inquired what the balance was in law between a human-being-as-property, and a human-being-as-person.  Scott argued that those brought from Africa were permanently non-citizens of the United States.
With brutal honesty, the Court offered:

  • Congress have no right to prohibit the citizens of any particular State or States from taking up their home there while it permits citizens of other States to do so. Nor has it a right to give privileges to one class of citizens which it refuses to another. The territory is acquired for their equal and common benefit, and if open to any, it must be open to all upon equal and the same terms.
  • Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognizes as property.
  • The Constitution of the United States recognizes slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.
  • The act of Congress, therefore, prohibiting a citizen of the United States from [p396] taking with him his slaves when he removes to the Territory in question to reside is an exercise of authority over private property which is not warranted by the Constitution, and the removal of the plaintiff by his owner to that Territory gave him no title to freedom.

Really, Scott v. Sanford is the ancestor of Lochner.   They both argue for the primacy of the private law of contract.  Whether or not the slave is a consenting partner in a property relationship does not matter – the contract of slavery is between a fictive partner, whereas the property is live and present.  Government is barred, by the principle of substantive due process stated in the 14th amendment after Scott but held before then, of tampering in private contracts.

But what is a contract?

[To continue]

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