On 22 May 2007, an elderly couple married in Toronto, Canada. One was 77. The other was 75. The younger of the two was dying from progressive multiple sclerosis, and at that point had only one usable finger, with which she guided her electric wheelchair. They had been a couple, at that point, for some forty years. They were not Canadian, but American, from New York: at that point, a marriage in their home state in the US was illegal. They went north of the border because the disabled half of the pair feared death before the opportunity to marry. Fortunately, the state of New York recognized their marriage, and they were able to live out two years at home as an ‘official married couple’ before the sick one died.
Both had enjoyed successful careers, one as a computer programmer for IBM, one as a consultant psychologist. Both had paid their taxes, obeyed the law, been model citizens. And yet, when one died, the federal government refused to recognize the marriage that was good enough for Canada and New York, levying tax on the estate of $363,053. Normally, spouses receive an unlimited deduction for property that passes on death from one to the other. Normally, the IRS tax bill in circumstances like these would be $0.
The survivor fought the tax assessment, and on 6 June 2012, the U.S. District Court in New York found in her favor. The federal government appealed, but on 18 October, 2012, the U.S Court of Appeals again found in the survivor’s favor. Then, on 7 December 2012, the Supreme Court of the United States announced that it would hear the case.
The survivor’s story is of particular significance not because she, Edith Windsor, was married in Canada, nor because she had been with her spouse for forty years prior to their marriage, or even because she had nursed her spouse through progressive multiple sclerosis; but because her spouse, Thea Spyer, was a woman. Under section 3 of the Defense of Marriage Act, the federal government regards same-sex couples as not married even when they are validly married under state law. The Supreme Court’s forthcoming ruling in United States v. Windsor will thus affect far more than Edith Windsor’s finances.
Beside the lapidary tale of Edith Windsor and Thea Spyer, the story of Hollingsworth v. Perry is messy and fraught, an ugly public spat over a ballot initiative somehow gone horribly wrong. 2008’s Proposition 8—introduced by Dennis Hollingsworth and his co-proponents—asserts that ‘only marriage between a man and a woman is valid or recognized in California.’
In some respects, we have been here before, to this battle over validity. It is shocking, on reading the first page of the opinion in Loving v. Virginia, to find this:
Almighty God created the races white, black, yellow, malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.
It is, of course, the trial judge’s justification for sentencing the Lovings to a year’s jail, to be suspended for twenty-five years as long as they left the state of Virginia. Many people read Loving expecting to see an argument against interracial marriage couched in social Darwinist terms. That the decision was defended on Biblical grounds does, however, invite comparison with the latest legal marital row. Once again, the Supreme Court is being invited to reformulate the definition of marriage while removing federal interference in an area—family law—traditionally in the States’ purview.
This Brief’s Scope
In rebutting the arguments against equal marriage, this brief addresses empirical issues surrounding the definition of marriage. Of necessity, this involves consideration of legal history and marriage customs, as well as arguments drawn by analogy from other disputes. As part of this discussion, it considers comparative law—especially Roman law—and then recounts the uses to which various definitions of ‘marriage’ have been put in social policy debates, including by libertarians. It also outlines why rights instruments may be unhelpful to those who support changes to existing law.
When People Say ‘Marriage’, What Do They Mean?
‘Marriage’ itself is often elusive in this debate, the term used uncritically by parties on all sides. Typically, equal marriage opponents tend to use the word ‘marriage’ as though it has always and everywhere meant something very similar to that which currently exists across the developed
world in the second decade of the 21st century. This takes in not only an assumption that heterosexual monogamy was the historical and legal norm worldwide (it wasn’t). It also suggests that in supporting or endorsing marriage when it comes to falsifiable social science hypotheses— intact marriages between biological parents produce better outcomes for children, for example— any heterosexual, monogamous marriage will do (it won’t).
If it becomes clear that marriage has changed over time, then it is harder to argue against equal marriage. If the historical forms of marriage endorsed by opponents of equal marriage would be struck down under the 14th Amendment in the U.S. or laughed out of the House of Commons, then that argument is harder still. Finally, if some of the historical changes to marriage were larger than the proposed legalization of same-sex marriage—and there is considerable evidence that they were—then the argument cannot be sustained.