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The Common Law: Ginsburg Gets It Wrong

During oral arguments in Obergefell v. Hodges (2015), Justice Ginsburg asked a question that has heartened the supporters of marriage revision:

We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down. And no State was allowed to have such a—such a marriage anymore. Would that be a choice that a State should be allowed to have?

Referring to this question, London’s Guardian newspaper gushed: “Ruth Bader Ginsburg Eviscerates Same-Sex Marriage Opponents in Court.”

Not exactly.

Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law. The law that the Supreme Court struck down in the case to which she referred was neither common law nor civil law. Ginsburg’s characterization of the common law tradition is false in important respects. And her assertion is premised on a positivist fallacy: that our civil marriage institutions today are the product of positive enactments and not common law.

The Supreme Court struck down Louisiana’s so-called “head and master” law in its decision in Kirchberg v. Feenstra (1981). The offensive provision was contained in a statute, enacted in 1912, which a lower court characterized as “the bedrock of Louisiana’s community property system.” That law cannot be blamed on the common law or civil law traditions.

Ginsburg’s understanding of common law appears incomplete at best. For one thing, the common law doctrine of coverture, under which a married woman’s legal identity was subsumed within that of her husband, was abolished more than a century before the Supreme Court ruled in Kirchberg—and without its intervention. State supreme courts and legislatures amended the common law rules to eliminate inequalities between husband and wife, even as they retained important features of common law marital ownership that limited both a wife’s and a husband’s freedom to encumber property without the other’s consent.

An Australian court explained that the abolition of coverture in that common law nation did not abolish the common law marital estate, the form of ownership of real property by married couples known as “tenancy by the entirety.” Rather, eliminating coverture elevated the wife to a place of authority equal to her husband, even as it constrained the individual liberty of both for the sake of the marriage.

In “tenancy by the entirety,” thus modified, “the two spouses constitute a kind of compound owner, resembling an incorporated association of persons.” For this reason, “neither can alienate without the other—even as a member of an incorporated company cannot alienate any interest in the company’s lands; and there is no interest in the company’s lands that can be sold in execution for his debt.”

Common law states (not Louisiana) in this hemisphere have retained and adapted common law marital ownership, too. As the Tennessee high court explained, the modern tenancy by the entirety elevates the wife to “equal legal status” and avoids those “artificial and archaic rules” that placed the wife under a disability.

Not all common law sovereigns have followed this approach. Some (for example, the United Kingdom) have eliminated common law marital estates, and many have embraced what Hanoch Dagan calls the ideal of “free exit” from marriage. But many have retained the strongest features of common law marital ownership, recognizing that the liberty to commit oneself to marriage is a liberty to choose to create new obligations for oneself. As Joseph Raz has observed, the freedom to marry consists of a “degree of unfreedom.” To create a marital obligation for oneself is in part to obligate oneself not to act on one’s own preferences alone.

It’s not in dispute that coverture entailed injustice, but Ginsburg fails to understand what that injustice was, and therefore why it was gotten rid of. Its purpose was not to allow men to dominate women. Nor was the primary injustice of coverture to excuse husbands for abusive acts, although that was in some cases a foreseeable effect of the doctrine. As a judge of the Michigan high court explained, “the disabilities of coverture were seen as serving to protect and benefit [married] women.” Coverture relieved married woman of both freedom and responsibility. Indeed, the doctrine was often challenged after being invoked by a wife. Some wives, having committed their assets in some way, later sought refuge behind coverture from would-be creditors.

Thus what was wrong about coverture was its treatment of married women as if they were not fully rational human beings. When the Texas Supreme Court struck down Texas’ coverture doctrine in its 1851 decision in Jones v. Taylor, that court reasonably treated coverture as an anomaly within the common law tradition. Men were held responsible for the disposition of their assets. Likewise, single women were accountable for their decisions. Only a married woman was deemed “divested of her faculties as a rational being.”

Abolishing coverture reconciled the common law tradition to itself, in which all rational owners enjoy the “right of disposition, control, and management.”

Most striking of all, however, is Justice Ginsburg’s assumption that state marriage laws today constitute a radical departure from the common law tradition of marriage. Where does she suppose those laws came from? The presumption of paternity existed in common law long before state governments codified it in their statutes. Prohibitions against incest, rights of parental custody and parental recognition, the duties of parents which justify parental rights, spousal privileges and immunities: none of these was invented in the late 20th century by state legislatures or the Supreme Court of the United States.

Indeed, the very idea of marriage as an institution of unique and non-fungible dignity, different in kind from friendships (whether same- or opposite-sex), business ventures, social clubs, religious assemblies, and all other forms of human sociability—the very idea that marriage revisionists want to appropriate for same-sex relationships today—is a common law idea.

Justice Ginsburg’s categorical assertion that marriage in contemporary law is something other than what it is in common law is simply wrong. In the most important respects, marriage most emphatically remains what the common law says it is.

During oral argument in Obergefell, the petitioners’ counsel appeared incapable of understanding, much less answering, the Chief Justice’s suggestion that to eliminate from law the “core definition” of marriage is to redefine the institution of marriage. The obvious import of the Chief Justice’s question was this: If marriage is no longer the union of a man and a woman, what is it going to be? That question matters because, if the common law definition of marriage is wrong, then there might be no rational basis for the norms or legal incidents that the common law has attached to marriage, which the petitioners took for granted.

Oddly, the Guardian lauded Justice Ginsburg’s “spatial awareness.” It is a curious spatial awareness that fails to recognize what is holding one off the ground. Ginsburg and the petitioners seemed to want to saw off the branch on which they and the rest of us are sitting.

Reader Discussion

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on May 04, 2015 at 08:48:35 am

Maybe the Guardian meant specious. ..which begs the question, if one of nine justices is asleep at the switch, can we safely assume the remaining 8 are not? It seems we have a 9 headed beast as the "Godhead" of the Law and the common man is crying for "separation" of this church from our "state."

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Steve Martin
on May 04, 2015 at 09:50:55 am

Professor MacLeod writes:

"It’s not in dispute that coverture entailed injustice, but Ginsburg fails to understand what that injustice was, and therefore why it was gotten rid of. Its purpose was not to allow men to dominate women. "

I want to begin with the caveat that I am not a lawyer, but rather an historian trained in study of 17th and 18th century England and its colonies.

But if we consider the doctrine of coverture in its larger political and social context, this statement above is incorrect. Coverture as applied in that context was precisely about domination, in its original sense. The verb "to dominate" derives from the latin "dominari" and originally applied to ownership of slaves. By the 17th century, in English usage, its meaning had expanded to include rulership generically. To exercise dominion was to rule.

In 17th century English political theory, there were successive orders of dominion, the most basic of which was the family. Legal thinkers of the 17th century referred to the family as "a little commonwealth," in which husbands exercised dominion--domination--over their dependents. The doctrine of coverture was the legal expression of this larger political reality. Part of the purpose of coverture was to give expression to this deeply entrenched cultural and social norm--that it was the obligation of husbands to govern, within the sphere of the family, over wives, children, apprentices, servants, and slaves.

If you want to know more about this, specifically as it operated in 17th century British colonial America, there is an excellent comparative study of the colonial commonlaw, comparing the commonlaw of colonial Massachusetts with that of colonial Virginia, by the legal historian William Nelson. You can supplement that book with the larger social analysis of 17th century families by the historian Mary Beth Norton, under the title Founding Mothers and Fathers. Norton's book contains extensive commentary about the commonlaw as it pertains to governance of families.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 10:30:01 am

Excellent post. Our old legal authorities did not confuse the definition with the regulation of marriage the way Justice Ginsburg did. Because marriage is a male-female enterprise for the expensive work of reproducing and educating joint offspring, of course it involved property. And people have disagreed, like forever, as to the way in which property should be contributed to the enterprise, regulated, divided, etc.: dowers, doweries, community property, coverture, Further, because this joint enterprise involves some recurring persistent divergences in the way in which the male and female participate--with the woman frequently sacrificing her economic activity by pregnancy, nursing, and attendant childcare, and with men getting peculiarly more acquisitive when participating in a secure household, frequently these property rules have involved varying and problematic but not-crazy discriminations on the basis of sex. BUT--to change marriage from male-female into "committed coupling" is a revolution that empties marriage of its coherence and intelligibility.

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David Upham
on May 04, 2015 at 10:32:55 am

I should add, the evolution of the word "dominion" and the larger political connotations it assumed is complex and to my reading anyway compelling. There is a nifty discussion of this, as pertains to 16th and 17th century England in particular, in Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain, and France, c. 1500-1800.

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Kevin R. Hardwick
on May 04, 2015 at 10:47:05 am

David:

Professor MacLeod writes:

"Abolishing coverture reconciled the common-law tradition to itself, in which all rational owners enjoy the “right of disposition, control, and management.”"

If he is correct, then isn't the final sentence of your comment a non sequitor, from what you write in the sentences preceding it?

Can you develop the connection between your discussion and your conclusion, since if MacLeod is correct, the gender-based discriminations which you seem (as I read you, perhaps incorrectly) to find constituetive of marriage are anachronisms themselves hostile to the spirit of the common-law.

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Kevin R. Hardwick
on May 04, 2015 at 10:54:45 am

Kevin, thank you for the reply. The common law idea of dominion is not domination, though dominion can be abused in that way.

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Adam J. MacLeod
on May 04, 2015 at 10:55:52 am

An excellent reminder of how things came to be.

The "Code Napoleon" (a basic departure for LA.) **prescribed** relationships.

The Common Law **described** them as they existed in the observed (lived in) social order.

Much of the case law in VA (common law) derived from outside parties dealings with elements of the marital relationship, rather than issues within the relationship. Of course, "outside" could include family members, even children and parents.

But, all said, Ginsburg has always been one of those who are determined that the "Law" is the "law as we know it."

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R Richard Schweitzer
on May 04, 2015 at 11:01:19 am

Ah! someone has been reading Nietzsche.

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R Richard Schweitzer
on May 04, 2015 at 11:03:27 am

Here is the context in which Ginsburg made her statement about the changing nature of marriage law:

MR. BURSCH:
13 [I]t's not unreasonable for the people in thinking
14 about the possible consequences of changing a
15 definition, which has existed, as Justice Kennedy said,
16 for millennia, might have real consequences. To say
17 otherwise is to say that it's irrational for a person to
18 think that changing an idea about something will have no
19 effect about ­­ on how people think about that idea.
20 JUSTICE GINSBURG: We have changed our idea
21 about marriage is the point that I made earlier.
22 Marriage today is not what it was under the
23 common law tradition, under the civil law tradition.
24 Marriage was a relationship of a dominant male to a
25 subordinate female.

Oral argument transcript at 70 (emphasis added).

MacLeod offers a thoughtful analysis about whether the various changes we’ve observed in marriage law might be characterized as a change in the common law tradition or in the civil law tradition or might be otherwise characterized. But even if Ginsburg were inartful in her characterization of how marriage law has changed, the larger point – that marriage law has not been remained unchanged “for millennia” – remains.

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nobody.really
on May 04, 2015 at 11:06:47 am

During oral argument in Obergefell, the petitioners’ counsel appeared incapable of understanding, much less answering, the Chief Justice’s suggestion that to eliminate from law the “core definition” of marriage is to redefine the institution of marriage. The obvious import of the Chief Justice’s question was this: If marriage is no longer the union of a man and a woman, what is it going to be?

A fine question. But who bears the burden of answering it?

I understand petitioners to argue that state policies tend to violate the Equal Protection Clause by imposing criteria based on suspect categories (gender) with respect to a fundamental right (marriage) in a manner that is not narrowly tailored to any identified compelling state purpose. The state bears the burden of rationalizing the status quo. It is no answer to say “If we grant voting right to blacks, the next thing you know *women* may want voting rights!” Maybe, maybe not -- but the challenges of crossing that bridge is not an excuse for refusing to cross this one.

That question matters because, if the common law definition of marriage is wrong, then there might be no rational basis for the norms or legal incidents that the common law has attached to marriage, which the petitioners took for granted.

Indeed. By the same token, there might be no rational basis for the norms or legal incidents that the common law has attached to marriage even if the common law definition of marriage is right.

If, instead of engaging in an exercise of rationalizing the status quo, we were to design public policy to promote compelling state interests, what would that policy look like? Arguably we’d have policies about procreation. And about child-rearing. And about mutual aid pacts. But it is unclear that we would want to make a person’s ability to qualify for any one policy contingent on their ability to qualify for the others.

As I’ve mentioned elsewhere, I generally favor policy unbundling. Let’s have procreation policies targeted to people who procreate – regardless of their child-rearing practices or mutual aid pacts. (“Laws against drinking while pregnant apply to you regardless of your marital status.”) Let’s have child-rearing policies targeted to people who raise kids – regardless of their procreation practices or mutual aid pacts. (“Children domiciled in this neighborhood may attend this public school regardless of the marital status of their parents.”) And let’s have mutual aid pact policies targeted to people who enter mutual aid pacts, regardless of their procreative or child-rearing practices. (“You own this house as community property regardless of your plans to have or raise kids.”)

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nobody.really
on May 04, 2015 at 11:15:18 am

Not meaning to speak for Kevin, but as a "Common Law" and "Equity" lawyer (retired), I believe he is quite correct that in dealings outside the marital relationship the male, unless incompetent, or the female a "free dealer," was the dominant member of the relationship. Naturally that entailed responsibilities for the relationship (debts for purchases, e.g.), but carried with it authority. Whether that authority amounted to a "subjugation" level of "dominance" as a general rule is doubtful.

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R Richard Schweitzer
on May 04, 2015 at 11:22:49 am

Let's design our social order.

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R Richard Schweitzer
on May 04, 2015 at 11:23:04 am

Adam--

You are gracious--thank you.

I certainly agree that as we use the term today, domination and dominion are not the same thing.

But the meaning of words, like the content of social and political institutions, changes organically over time. In the 17th century, I am pretty sure I am correct that domination carried the connotations of rulership that are also conveyed by the cognate term dominion. Consult the OED for the etymology of these words. I think you will find that domination, as used in the 17th century, meant the act of exercising dominion. To dominate was, among other things, to rule. It connoted the exercise of legitimate authority and power.

Since Justice Ginzberg's larger point was precisely that the institution of marriage is not historically static, but rather has changed organically over time, the fact that domination at the start of American common law meant rulership by a superior over an inferior, and that coverture was a species of domination, is relevant.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 11:59:18 am

Adam—

Since I have the OED readily available, I went ahead and looked it up.

The OED lists (as one might expect) several definitions of the word “domination.”

The first is:

“The action of dominating; the exercise of ruling power; lordly rule, sway, or control; ascendancy.”

This first definition is a current usage.

The second OED defintion is:

“The territory under rule; a dominion.”

This second definition is still available to modern users, but is in contemporary usage obscure. It was commonly available, however, in the 17th century.

So I think this is sufficient to prove that domination and dominion were, in the 17th century, cognate terms—they were very close to being synonyms.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 12:18:36 pm

Okay, point taken: I should have more precisely clarified that common law dominion (as used for example in Blackstone, where it is delegated from God, subject to His commands, and exercised permissibly only when consistent with reason and the law of nature) is not the same as domination as that term is commonly used today and as Justice Ginsburg most likely intended her contemporary audience to understand her own usage. Does that make the point clearer?

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Adam J. MacLeod
on May 04, 2015 at 12:19:38 pm

Richard--

First and always--it is a pleasure to converse with you. I almost always derive benefit from your commentary.

17th century Virginia is a peculiar case, for a variety of reasons. For starters, once the initial cadre of "gentlemen adventurers" who comprised the initial colonizers died or returned to England, there were hardly any men in the colony who possessed technical expertise in the common law. So what you have in Virginia is, in a very direct sense, the common law as an expression of the sense of the community--their understanding of customary practice.

Second, the persons willing to take the gamble of colonizing early Virginia were overwhelmingly men. The prevailing expectation was that everyone was part of a family and under the paternal authority of a head of household. In a very literal sense, early Virginians conceptualized the foundation of government authority as the family, and perceived the family as a fundamental institution for maintaining order. So everyone was supposed to be part of a family headed by a patriarch--rule by head of household. The reality on the ground, however, was that there were very few women--so out of necessity, early Virginians had to adapt their understanding of the law to apply to situations that were, from the perspective of England, rather weird and abnormal.

Under these circumstances, and given the emphasis that authorities everywhere in the British dominions placed on maintenance of order, its not all that surprising that most cases involved folks outside of families intervening in one fashion or another into affairs within families.

More generally, however--in Britain itself and in colonies like Massachusetts that were settled by families rather than individuals--external authorities intervened in family affairs whenever they perceived the head of household to be remiss in his duty to maintain order in the family. So the case law in 17th century Massachusetts is replete with these kinds of interventions--that is much of what Mary Beth Norton analyzes in her book FOUNDING MOTHERS AND FATHERS. That's a fun book, but also a long one. She writes well and has some really interesting case studies, but it may be more of a book than anyone on this list wishes to take on.

I am sure you are already familiar with it--but just in case not, a book I suspect you would much enjoy is John Ruston Pagan, ANNE ORTHWOOD'S BASTARD: SEX AND LAW IN EARLY VIRGINIA. Pagan is a scrupulous and properly trained legal historian, and I believe a member of a law faculty. He is also just a terrific writer--the story he tells is fascinating and elegantly told, and offers a great deal of insight into the Virginia common law at its origin in the 17th century.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 12:43:27 pm

Adam--

Since you used the past tense in the sentence under question, I took you to be talking about the historical point raised by Ginsberg.

I understood her to be arguing that in the past, lawyers and others employed common-law doctrines like coverture for purposes that we today would deem unjust. One of those purposes was that men ruled--and people at the time held normatively that men *should* rule--over women. I took Ginsberg to be arguing that an important part of the injustice of the common law as applied in earlier eras was the notion that men rightfully ruled over women.

I took you to be disputing this notion. I took you to be asserting that this was an erroneous understanding of the function of the common law in earlier time periods.

But as I hope I have made clear, if that (what I took to be your assertion, perhaps erroneously, given the imperfections of this mode of communication) is correct, then several generations of legal, political, religious, and social historians of 17th century England and its colonies have been egregiously misreading the historical evidence. That is of course possible. But speaking as someone who has lived his life immersed in these sources, I have to say I find that very unlikely. Or put differently--I do not think that excellent and well respected historians of the common law, for example William Nelson or John Pagan, would find anything I have written here to be in the slightest bit controversial. What I am asserting here is the conventional understanding of our best historians of the era.

Marriage in the 17th century--and the 18th too, I should hasten to add--was very much about rule. It was about governance. It was about the legitimate exercise of authority and power by one group of people over another group of people. Justice Ginzberg is simply not incorrect here, in her understanding of history, nor in her understanding of the fashion in which the law supported these larger political and social assumptions about how authority ought to function.

I worry that perhaps I have missed the thrust of your argument, and if so, mea culpa, and also my sincere apology. It is certainly not my intent to derail the conversation into discussion of anchronistic trivia.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 13:09:44 pm

Adam--

Having criticized the point I have understood you to be making, I hope you will allow me to indulge in a bit of self-criticism.

The person who introduced the 17th century into this conversation was me, not you or Justice Ginzberg. I did so because there is a case to be made that the American common law begins with the transfer of English law to the colonies.

But this case is itself open to real criticism--and your reference to Blackstone points the way to a counter-argument. By the time Blackstone presented his argument, larger intellectual movements--the Scottish Englightenment, in particular--had begun to shape contemporary thinking about the nature of law, and of justice more generally.

The American Revolution mandated, among other things, a revision to American law. In Virginia, the effort to revise the law was begun by Thomas Jefferson, but similar revisionary efforts were made in (I am reasonably sure) most of the colonies. Many among the revolutionary generation took this necessary revision as an opportunity to apply Enlightenment thinking about justice to the codification of law.

In the 1790s, following adoption of the US Constitution, American legal thinkers perceived a need to systematize American practice, given the diversity of common law up and down the Atlantic sea-board. One of the people involved in that effort was St. George Tucker, who revised Blackstone for application in America.

So one might plausibly argue that a better time period to use, for the purposes of this conversation, is the post-Revolutionary understanding of the law of marriage, and not that of the 17th century.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 14:15:28 pm

Regarding a "Let's have" this; "Let's have" that approach to social arrangements:

In the former times (actually in 1969) then Cardinal Ratzinger wrote: "And so it seems certain to me that the Church is facing very hard times. The real crisis has scarcely begun. We will have to count on terrific upheavals. but I am equally certain about what will remain at the end: not the Church of the political cult, which is dead already, but the Church of faith....."

"Men in a totally planned world will find themselves unspeakably lonely. If they have completely lost sight of God, they will feel the whole horror of their poverty. Then they will discover the remaining little flock [the remnant] of believers as something wholly new. They will discover it as a hope that is meant for them, an answer for which they have always been searching in secret...."

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Linda Smith
on May 04, 2015 at 14:58:43 pm

I think this phrases the issue well: The primary (sole?) objection is grounded in religion. You see, God has ordained the one and true state of marriage, grounded in the procreative potentialities of [blah blah blah] and that's how the Bible influences the application of 26 U.S.C. § 2056(a), regarding federal estate taxes, to an 84-yr-old lesbian.

Whatever the merits of these arguments as a matter of theology, I (and the Supreme Court) find them less than compelling as a matter of civil law.

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nobody.really
on May 04, 2015 at 15:15:28 pm

It could just as easily be grounded in nature. Though insisting that God be left out of the discussion is as much of a 'religious' choice as bringing Him in.

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John Mark
on May 04, 2015 at 15:49:33 pm

If the ability to conceive and birth children (as opposed merely to raise them) is what qualifies one for marriage, on what reasonable basis does one exclude lesbians from getting married?

If marriage is solely about the ability to conceive and birth children, should not we exclude all post-menopausal women from getting married? Indeed, wouldn't the state have good cause to exclude middle-aged and older men from getting married too, since elderly sperm contribute their share to birth defects like downs syndrome and autism, which entail meaningful social costs to tax payers? Extend the logic, since older eggs have the same risk--why not assert a State interest, and deny the status of marriage to all persons, male or female, over the age of 35?

Doesn't the argument that marriage is solely about procreation rapidly devolve into absurdity?

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Kevin R. Hardwick
on May 04, 2015 at 15:59:33 pm

I wouldn't argue that marriage is solely about procreation.

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John Mark
on May 04, 2015 at 16:11:54 pm

Kevin,

Just as a historical point (I am asserting no position here one way or the other) under Roman Law, impotentia procreandi, i.e. the inability to procreate, was grounds to annul a marriage. This does not establish that procreation was the sole rationale, but that it was factor justifying recognition of marriages. Just an observation...Carry on.

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z9z99
on May 04, 2015 at 16:33:13 pm

John--

First, kudos for writing under your own name--always nice to see.

Sorry to put words in your mouth--I was riffing off of z9's comment, albeit I hope constructively, rather than yours, and did not make that clear.

I think there are theological grounds, especially within Roman Catholic teaching, for the idea that marriage is between a man and a woman. That doctrine teaches that such a relationship is complementary, and is central to a life well lived.

I am not sure how one would derive an argument from nature from that teaching, however. That strikes me as a complex ethical argument to make. It seems to me that most of the thrust of modernity has been to locate human flourishing within the individual, rather than in human relationships, let alone contractual relationships between men and women. I would guess that the philosophy of Alisdair MacIntyre and Charles Taylor might represent a good point of departure for such an argument.

Just thinking out loud, really. I would enjoy reading your thoughts on the matter.

Well wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 16:51:15 pm

My comment simply provides a response to the idea that life can be planned and organized by imposing certain ideas on reality in order to create a new reality.

Cardinal Ratzinger was almost certainly not concerned only with marriage and children but with all areas of human life on which "planned" new arrangements are to be imposed.

I do not however think it is unreasonable to assume that the former Pope would have been concerned, as a man and as a human person, with children's need for the mother and father from whose union they were conceived.

I do not think it unreasonable at all to think that he was also concerned with the obvious complimentary of male and female as that complimentary benefits them as persons - and thereby the entire human community,
requiring us, so to speak, to deal with the difference and the possibility for reconciliation and more. Much more.

Religious voices and thought can be, are being, excluded. This demonstrates I believe an error in understanding; a lack of knowledge; the kind of knowledge that must be lived in order to be understood. To read the Bible with interest (see Prof. James Kugel, "How to Read the Bible"), to evaluate its claims according to faith and reason, is part of an education in the history of human thought. Pope Benedict referred to this at Regensburg.

Although I do write from the perspective as a believer in God, I do recognize that this discussion is primarily intellectual as those who are participating interpret the law. My comment was intended in a more philosophical mode. Josef Pieper wrote: "The pre-eminence of prudence means that realization of the good presupposes knowledge of reality. He alone can do good who knows what things are like and what their situation is."

I have noticed through my long life that my major errors consisted a lack, what Dr. Pieper terms a "defectus", an "absence of a needed quality". Something essential to goodness is missing in human error. In this discussion I sense an absence of a needed quality.

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Linda Smith
on May 04, 2015 at 17:22:44 pm

The "needed quality" missing seems to be humility before the realities of human existence, some sense that every aspect of human life on earth is not now subject to redefinition; hasty, sometimes violent, redefinition and imposition of this new, planned reality on everyone.

Prudence requires careful consideration, well-founded judgement. In great haste, we risk what Dr. Pieper terms "thoughtlessness".

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Linda Smith
on May 04, 2015 at 18:03:12 pm

Hey, maybe you're right. Maybe extending Equal Protection to same-sex couples as to male/female couples will trigger the Apocalypse. That said, who bears the burden of showing it?

Answer: Advocates for the status quo. Courts can't simply assume it to be true.

So we may in fact be galloping in great haste toward a cliff. Yet there are no shortage of parties filing briefs in this case before the Supreme Court. No shortage of resources being expended. If, notwithstanding all this effort, no one can demonstrate that there is any relationship between Equal Protection and the Apocalypse, that doesn't prove that the relationship doesn't exist -- but it gets as close as we mortals will ever get.

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nobody.really
on May 04, 2015 at 18:21:25 pm

We are viewing this question from different philosophical positions. I understand that.

A discussion on the concept of Equal Protection requires that we are talking about the same thing. We are not. I respect that.

My post took this discussion away from its focus - whether or not Justice Ginsburg was correct in referring to "domination". I apologize to Adam J. MacLeod for this distraction from the learned discussion that was in progress. My comment was spontaneous - and out of order. I hope that other participants will continue.

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Linda Smith
on May 04, 2015 at 18:40:29 pm

Linda--

I can of course only speak for myself. But that said, my original contribution to this now quite long thread was itself a kind of distraction. Dr. MacLeod, after all, writes about considerably more than just the history of dominion/domination. I am an historian--I purposefully restricted my comments (mostly!) to the stuff about which I can claim some legitimate expertise.

All of which is to say that there was nothing the least bit inappropriate about deflecting this conversation in a different direction. I found value in your comments, even if I do not fully agree with them. I hope you will continue writing them.

Well wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 19:00:50 pm

Linda--

I may be wrong, as this is a topic far from that small sphere of human knowledge about which I legitimately can claim expertise. But with that caveat, wasn't Cardinal Ratzinger's comment, which you quote in your initial contribution, part of a larger Christian commentary on the evils of communism, which itself was part of a larger political effort to orient Americam life properly during the Cold War?

I ask this because if I am correct, then perhaps I have erred in my own reading of the larger argument. As I read both the commentary of Dr. MacLeod and that of Justice Ginzberg, the argument is about ensuring that the commonlaw reflects the customary practices of the people whose lives it regulates. Justice Ginzberg argues that there has been organic and gradual change, over a long period of time, in our customary understanding of just what marriage is.

Dr. MacLeod, by contrast, as I read him, is making an argument from the assumptions of what legal historian John Philip Reid refers to as "jurisprudential history." The common law is fixed and unchanging--but its meaning must be discovered, because human reason is flawed. Thus, over time, we have purged our interpretation of the common law of past, irrational misunderstandings, better to fit with its own internal and unchanging logic. So obvious injustices from the past, stemming from the assumption that male rationality is superior to female, were never properly part of the common law properly understood, but rather were read in to it by misguided lawyers and judges of former generations.

I should pause to note that I am here at some risk of ascribing to Dr. MacLeod positions he does not hold, and welcome his correction, should he have time and inclination to offer it.

Either way, however, I do not read either of them as making an argument about the totalitarian inclinations implicit (explicit too!) in Leninist or Stalinist communism--which is what I assume Cardinal Ratzinger was writing to condemn.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 04, 2015 at 20:21:40 pm

Reply to Kevin R. Hardwick

Thank you for your kind reply.

After posting a comment in which I referred to Josef Pieper's elegant teaching on prudence, his description of hasty, unconsidered action (or speech) as examples of a defect in one's character, of an absence of a needed quality, I realized that I had provided a good illustration of his point.

If, after slow and careful consideration of the original post by Dr. MacLeod and of your reply and questions, I have anything at all that seems worthy of the discussion (and if this is acceptable to the libertylawsite, I will respond.

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Linda Smith
on May 05, 2015 at 04:36:54 am

I would suggest that the government has an interest in encouraging the raising of children by their biological parents. For just the topic of abuse and maltreatment: Married biological parents have the lowest rate of child maltreatment, at 6.8 per 1000, while the 2nd lowest living arrangement category was unmarried parents with 23.5 per 1000. The category Other Married Parents had an incidence of 24.4 per 1000. The worst of the six categories of living arrangement was Single Parent with Partner. (See "Fourth National Incidence Study of Child Abuse and Neglect (NIS–4)", Report to Congress, http://www.acf.hhs.gov/programs/opre/research/project/national-incidence-study-of-child-abuse-and-neglect-nis-4-2004-2009)

The only way for a child to be raised by her biological parents requires opposite sex people. That excludes same sex couples, regardless of their sexual orientation.

Postmenopausal women and older men: I happen to know such a couple that just got married. The husband wants to continue to have sex. Men are usually fertile until death. Encouraging the fidelity of males to only their wives decreases the number of children who are more likely to be born to single mothers.

Your other hypothetical claim concerning possible birth defects is a non sequitur, because the government's reasonable interest is in encouraging the raising of children by their biological parents – not breeding a master race. There are interests collateral to this main interest, such as marital fidelity, inheritance rights, etc.

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Ali Bertarian
on May 05, 2015 at 11:37:51 am

This post by Prof. Adam J. MacLeod has inspired me (and I trust many others) to follow his future work - and to purchase his books.

The posts by Kevin R. Hardwick have convinced me that I know almost nothing about common law, its history, its development and have inspired me to learn more, much more.

My post of Cardinal Ratzinger's words stands on its merits from him as a distinguished scholar, a man of God, through and through; a faithful witness to one way of being a human person, one whose thinking must involve political life as it relates to the Truth as he sees it and only as it relates to truth and falsity, never left and right.

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Linda Smith
on May 05, 2015 at 13:05:08 pm

Linda--

Much of the scholarship I cited is rather dry and technical. But the book by John Pagan, Anne Orthwoods' Bastard, is to my eye sprightly written and accessible. Its also a manageable length.

My students find the book by Mary Beth Norton also to be readable--it was, if I recall correctly, a nominee for the Pulitzer Prize. But it is considerably longer. If you decide to read that one, you might consider just dipping in to some of the more interesting chapters, and not worry too much about her larger argument. Both of these books are routinely taught in undergraduate classes, which means you should be able to pick up a copy of either for minimal cost, if you are willing to purchase a used copy.

All best wishes,
Kevin

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Kevin R. Hardwick
on May 05, 2015 at 18:58:06 pm

“Domination” in the context of the “little commonwealth” you speak of is analogous to “sovereignty” in the state. The husband is the sovereign whether the actual powder structure in the family. To him belongs both the power and the responsibility, and the other members are subject to him. The family is hierarchically structured, and when primogeniture prevailed, the eldest son was “the crown prince.” and his siblings as well as the servants were subject to him when he reached his majority. The actually role of the mother depended as much on her character of what she brought to the family upon marriage. In a “republican” family, man and wife became equals and of course primogeniture was long gone.

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John Schuh
on May 06, 2015 at 08:07:20 am

In my haste to explain Pope Benedict's words and to understand the demands of Prudence, as taught by Josef Pieper, I failed to notice the reference from Prof. Hardwick to John Philip Reid and the concept of "jurisprudential history". This approach to law and history resembles that of Joseph Ratzinger, of Josef Pieper; it is also my own.

Cardinal Ratzinger would of course have been providing arguments against all forms of Godlessness; that at least is for certain. After all, there are so many.

Thank you to Prof. MacLeod and Prof. Hardwick. I am now among your (virtual) students.

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Linda Smith
on May 09, 2015 at 19:11:50 pm

Dr. Hardwick: May I impose on your patience one more time:

Since intruding upon the erudite discussion taking place at this site, I have read "The Dialectics of secularization: On reason and religion" by Jurgen Habermas and Joseph Ratzinger; also "Faith and the Future" a collection of addresses and commentary by then Cardinal Ratzinger.

I feel more confident in saying that the comment which I posted in response to nobody.really cannot be understood as you described it. It is not part of any particular political effort having to do with American life. It is much more a response to the reasoning and teaching of Dr. Habermas - "The Theory of Communicative Action" and other writings.

If you should read or have read the Habermas/Ratzinger book, you may notice a quality of confidence in human goodness that I am not certain Dr. Habermas would hold today.

A passage: "If the modernization of society as a whole went off the rails, ... This would lead to precisely the constellation envisaged by Bockenforde: namely, the transformation of the citizens of prosperous and peaceful liberal societies into isolated monads acting on the basis of their own self-interest persons who used their subjective rights only as weapons against each other."

Best wishes LWS

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Linda Smith

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