WATCH: What's the Definition of "Traditional Marriage"? - By Matt Baume

Published on 24 June 2015

Over the ages there have been myriad changes within, and to, the institution of civil marriage. Marriage is not a static institution, nor is it viewed or experienced the same way in every era, class or culture, or by people of different generations.

• Throughout world history, including American history, wives were considered the property of a man, with no rights to their children's legal guardianship or to property.
• In Roman society, only the upper one-third of Roman citizens even had the legal right to marry.
• The early Christian church had no specific right for marriage - this was left up to the secular authorities of the Roman Empire, since marriage was a legal concern for the legitimacy of heirs.
• Christians originally thought marriage was a tainted institution and didn't declare it a sacrament until the 13th century. At the same time, once marriage was declared a sacrament, there is evidence that the early Church sanctioned and blessed same-sex unions.
• In the U.S., couples could only seek divorce because of "marital crime" until the mid-19th century.

Changes to the institution of marriage have also occurred during our lifetimes. In the U.S. the status of women within marriage has changed and continues to evolve to reflect the equality of spouses and of the male and female genders, as well as the fluidity of gender-roles. The status of ending a marriage changed with the Supreme Court's recognition that states have to honor each other's divorces. And, the eligibility to marry the person of one's choosing, particularly based on race, presented a fairly recent and vivid example of change to the legal institution of marriage.

• The Myth About Marriage - by Gary Wills, NYR Blog (9 May 2012)
• Ten key moments in the history of marriage - by Lauren Everitt, BBC News Magazine (13 March 2012)
• No Objections - What history tells us about remaking marriage - by Nancy Cott for the Boston Review (1 January 2011) Nancy Cott is a historian who testified in the CA Prop 8 trial, Perry v. Schwarzenegger.
• History of Marriage Timeline - Lambda Archives San Diego

Discrimination or Preservation

Groups of citizens have always been barred from or restricted in marriage by our government. When a government restricts an entire group of adults from marriage, it is establishing a form of 'social control.'

For instance, slaves were not permitted to marry as they were considered "property." Asians and Native Americans were not permitted to marry in the early years of the U.S. Interracial couples were not permitted to marry in some states until as late as 1967. Today, in many states, same-sex couples, no matter how long they have been together, are unable to enter into civil marriages. Fear of past changes in marriage laws have brought up age-old predictions of ruination, criminality and worse.

• History and Timeline of the Freedom to Marry in the United States - Freedom to Marry, updated 19 September 2014
• The Secret History of Gay Marriage - by Karen M. Dunak, Salon.com (8 September 2013)
• Same-Sex Unions in Pre-Modern Europe - by John Boswell (1994)

Historic Cases

At one point, 40 states in this country forbade the marriage of a white person to a person of color. In other words, people could not marry a person of the "wrong" race. Marriages between whites and persons of color were decried as "immoral" and "unnatural". Overwhelming numbers of Americans agreed. A Virginia Judge upheld that State's ban on interracial marriages saying, in a language with the same rhetorical tone as used against gay people today: 

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And 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." 

Perez v. Sharp (1948)

Despite the public opposition to interracial marriage, in 1948, the California Supreme Court led the way in challenging racial discrimination in marriage and became the first state high court to declare unconstitutional a ban on interracial marriage. In Perez v. Sharp (AKA Perez v. Lippold), 32 Cal.2d 711 (1948), the Court pointed out that races don't marry each other, people do. Restricting who can marry who based on that characteristic alone was therefore race discrimination. The court decision was controversial, courageous and correct: at that time, 38 states still forbade interracial marriage, and 6 did so by state constitutional provision.

Loving v. Virginia (1967)

In the middle of the night, in 1958, in the bedroom of their Virginia home, newlyweds Richard and Mildred Loving, a European-American man and an African-American woman, awakened to blinding flashlights and police. The couple was arrested. The charge: violating the ban on marriage for interracial couples. Although it was just a generation ago, that kind of law existed in Virginia and in many states.

Facing a felony conviction and the possibility of up to five years in prison, the Lovings originally pled guilty. They received a one-year jail sentence -- suspended on the condition that they leave the state and not return together for 25 years. The Lovings appealed their case and, nearly a decade after their arrest, the United States Supreme Court held that "racial hygiene" laws that existed in Virginia and 15 other states unconstitutionally sought to interfere with a person's right to marry the partner of her or his choice.

Pre-Loving, states defended laws against interracial marriage as vital to protect "the natural order of things." Virginia's anti-miscegenation law read: "All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process."

In 1967, the United States Supreme Court struck down the remaining interracial marriage laws across the country and declared that the "freedom to marry" belongs to all Americans in the case Loving v. Virginia, 388 U.S. 1, 12 (1967). The Court described marriage as one of our "vital personal rights" which is "essential to the orderly pursuit of happiness by a free people."

Baker v. Nelson (1972)

Considered by some to be "the first" same-sex marriage case, on 18 May 1970, two University of Minnesota gay student activists, Richard Baker and James Michael McConnell, applied for a marriage license in Minneapolis. They were denied and the couple filed suit. They argued that the absence of sex-specific language in the Minnesota statute was evidence of the legislature's intent to authorize same-sex marriages. The couple also claimed that prohibiting them from marrying was a denial of their due process and equal protection rights under the Constitution. In 1972, the Court simply stated in the Baker v. Nelson case: "we do not find support for [these arguments] in any decision of the United States Supreme Court."

Adams v. Howerton (1982)

This was the first U.S. lawsuit to seek recognition of a same-sex marriage by the federal government. In 1975, Richard Frank Adams, an American citizen, and Anthony Corbett Sullivan, from Australia, were one of several same-sex couples that received marriage licenses from the clerk of Boulder County, Colorado. Adams then petitioned the Immigration and Naturalization Service (INS) for classification of Sullivan as an immediate relative of Adams, on the basis that they were married under Colorado law. The petition was initially denied, with a letter stating that "[Adams and Sullivan] have failed to establish that a bona fide marital relationship can exist between two faggots."

A revised letter was later sent, explaining that "[a] marriage between two males is invalid for immigration purposes and cannot be considered a bona fide marital relationship since neither party to the marriage can perform the female functions in marriage." After the INS petition was ultimately denied, they filed suit against the INS in the United States District Court for the Central District of California, alleging that their marriage was valid under both Colorado law and immigration law, and that failure to recognize its validity violated the Fifth Amendment's substantive due process and equal protection components.

Ultimately, a decision from the United States Court of Appeals for the Ninth Circuit was issued that held that the term "spouse" refers to an opposite-sex partner for the purposes of immigration law and that this definition meets rational basis review. 

• Same-sex marriage has roots in Boulder's controversial history by Collen O'Connor, Denver Post, 29 April 2014.

Zablocki v. Redhail (1978)

In 1978, the United States Supreme Court declared in the case of Zablocki v. Redhail marriage to be "of fundamental importance to all individuals." The court described marriage as "one of the 'basic civil rights of man'" and "the most important relation in life." The court also noted that "the right to marry is part of the fundamental 'right to privacy'" in the U.S. Constitution.

Turner v. Safley (1987)

Over time, restrictions on marriage have become more and more suspect. In 1987, the last time the Supreme Court of the United States prior to the DOMA and Prop 8 cases in 2013, considered the claim of a group of Americans about restriction on their right to marry, the Court articulated four attributes of marriage common to this group and all other Americans. These attributes are:

• Expression of emotional support and public commitment;
• Spiritual significance, and for some the exercise of a religious faith;
• The expectation that for most, the marriage will be consummated; and
• The receipt of tangible benefits, including government benefits and property rights.

Looking at these attributes of marriage, the Court decided that these Americans - incarcerated prisoners - shared with other Americans the freedom to marry. Because prisoners, too, can enter into a marriage with these characteristics, the Court invalidated Missouri's' virtually complete ban on marriages of prison inmates. Turner v. Safley, 482 U.S. 78, 94 (1987).

The analogies are clear. Restricting who can marry whom based on their sex and sexual orientation is discrimination. Creating a civil institution which is available to all committed adults -- even if they are incarcerated prisoners -- is essential for the happiness of everyone, including same-sex couples. Perhaps that is why civil rights leaders like Coretta Scott King and United States Representative John Lewis of Georgia endorsed the right to civil marriage for same-sex couples. On 19 May 2012 the national NAACP endorsed the right of same-sex couples to legal, civil marriage and stated that marriage is a civil right.

Romer v. Evans (1996)

Colorado voters adopted Amendment 2 to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. The state trial court enjoined enforcement of the act. Evans and others (the Respondents), argued that Amendment 2 did nothing more than deny homosexuals special rights. In 1996 the judgment of the Supreme Court of Colorado was that Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, relegating "homosexuals to a solitary class" and withdrawing "from them, but no others, legal protections arising from discrimination." In 1996, the U.S. Supreme Court affirmed the lower courts ruling.