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Journal Sloppy's Journal: Common Law precedent for marriage 13

Journal by Sloppy
The San Francisco gay marriages were just annulled by the courts. This got me thinking about the issue again.

One common argument heard related to this topic, is that "Activist Judges" are responsible for all the hubbub. That is, judges are "creating" state-sponsored gay marriage. If the people, through their elected representatives, did this instead, it wouldn't be as legally controversial.

The counter to this, is that the judges aren't creating anything, and the legislation in many places doesn't explicitly state that marriage has to be heterosexual. The law is ambiguous. So the judges interpret the ambiguity liberally, since discrimination tends to be frowned upon. [Update: Apparently in California, there was a referendum that removed this ambiguity. But that isn't the case in all states.]

And the counter to that, is that calling it ambiguous, is bullshit. That marriage must be heterosexual, is just common sense, tradition, biology, etc. Common law is partly based on the idea that tradition itself is legal precedent, at least a little bit. Just because something hasn't been codified, doesn't mean it isn't law.

That last argument, is something I'd like to look more closely at. It's a pretty good-looking argument. While homosexuals have been around forever, state-recognized gay marriage (AFAIK) has not. Traditionally, marriage really is a union between exactly one man and exactly one woman. Unless one can find traditional exceptions, then the argument stands, right?

No, I think I've stumbled on a weakness. Is it enough? I don't know. But I'll explain what it is..

We have already substantially changed marriage such that it is different than earlier tradition. As a result, really old traditions that would be common law precedent, have been overridden by new laws. Just as traditional slave ownership, for example, has been invalidated by a constitional ammendment. The People's representatives have taken action and codified things, and society has created new traditions, that make the older traditions less relevant. These new things have changed what marriage is.

What new codifications and traditions am I talking about? Here are some examples, though I can probably come up with more, if pressed/motivated:

  • This doesn't appear to be marriage-related at first, so I'm hoping it'll show why the issue is maybe a little subtle: the instition of income tax. The tax tables for single and married people are different. Federal income tax simply didn't exist until about 100 years ago, when the 16th amendment passed. (I don't know when the policy of having the different tables dates back to -- maybe someone else can chime in.)

    Why does that matter? Well, if congress creates a new difference between married people and unmarried people, then that difference becomes part of what marriage is, from that point forth. If you get married now, you know that part of the package you're getting into, involves tax changes. Thus, marriage is no longer simply two people, in love, contracting to raise a family -- it is now also a tax strategy. Changes in the codified law, seemingly unrelated to marriage, caused marriage to change.

    IMHO, that partly invalidates common law interpretation of marriage. If I were a judge (heh, no need to point out my lack of qualifications here :-) I would become, shall we say, less interested in any traditional and common law precedent for marriage, if that precedent pre-dated this particular codification. (Just as I would reject traditional precedents regarding slavery, if those precedents pre-dated the 13th amendment.)

  • 200 years ago if you were injured, you'd recover at home, and anyone who lived with you, would be there to see you. (What a country! In olde America, Doctor visits YOU!) Visitation "rights" weren't even something that would come up -- if you were in the house, you probably had access to a sick person within. If you lived with someone, whether you were married or not, you had access. Likewise, if someone you loved needed medical aid and you were able to help or make decisions regarding it, you could.

    Now things are different. Sick people hang out in hospitals, and healthcare providers are much more careful about "covering their asses" (good opportunity for gay joke here) with regard to legal access, decisions, etc. And it has been decided, somehow, that spouses have more power than others. Nowdays, at the time that you get married, you fully know that this is part of the whole marriage package. Thus, marriage has been partially redefined. Earlier tradition and precedent loses relevancy.

  • Asset inheritance. People keep their assets in banks and securities, instead of a chest full of coins or a field of cattle. In the old days, if the person you lived with died, you pretty much had their assets unless someone challenged you, because you had physical possession of their assets. Nowdays -- hah! Assets are numbers inside some database, and they're not going to get rekeyed to you, unless you take legal steps to make it happen. Changing tradition has changed the utility value in getting married. Thus, common law marriage is partially redefined.

Well, that's my argument. Whatcha think? Has marriage been changed and redefined, to an extent that common law precedent is weakened?

[Later update]: I guess what I'm saying is, if people wanted to "preserve the institute of marriage" then they should have done exactly that: preserve it. They shouldn't have changed it. They shouldn't have codified new laws that redefine what marriage is -- what the differences are between married people and unmarried people. But they didn't. Your congresscritters changed marriage, and they've been doing it for at least a century. And it's not just your congresscritters. Informal tradition has changed too -- unmarried couples have been "acting" married, and you can probably come up with examples where married people have been acting unmarried.

It's a little late to say, "Whoa there, back off, what these gays are doing, isn't marriage."

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Common Law precedent for marriage More

Common Law precedent for marriage

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  • is a common refrain now. As if the only job of a judge is to punish criminals. Of course these folks don't seem to understand that judges punish criminals "in accordance to the law". Which requires interpretation of 230 years of text.

    Once more it is "obvious" what a snippet of human language is and that anyone who thinks otherwise must have an agenda.

    Tom LaHaye, author of Left Behind, wrote in this months Esquire on the "Case for Bush". The bulk of his article was on this very topic. Like many he dis
    • Like many he disregards the fact that there is anything other than a criminal court in the judiciary.

      In what way does he do this? Yes, there is also a civil component - but both are supposed to apply the law rather than making it up as they go along.

      He also states that the Constitution is obvious in its reading and that judges should be "constructive Constitutionalists" and judges should only strive to hold these accepted concrete statements up. How this can be for a document inherently modifiable (see

      • The problem is "intended meaning" is about as subjective as you can get. Wittgenstein and Derrida talk about how texts change on subsequent rereadings. The laws must be applied to the specifics of the modern era. Until we get that ressurection ray and we can ask Madison et al what they think of specific topics, we'll have to live with the fact that "correct" interpretations (which the judiciary is given authority to make. Clear up "controversies" right?) are as good as we can do. And in law where one s
        • The problem is "intended meaning" is about as subjective as you can get.

          Only once you start trying to get creative in your "interpretation". Look at each of the Amendments, for example: all very straightforward unless you entertain claims like the suggestion that "the people" somehow refers to something other than people. OK, it's a judgement call what actually constitutes "cruel and unusual punishment", or an "excessive" fine or bail - but that is what the system of common law and binding precedent is su

    • You know, it's amazing how many people who were whining about "activist judges" in Mass. are now hailing this as a victory. In California, land of liberal judges, no less. Hello, if your opinion of judges bases on whether they agree with you or not, then, you're not really making your decisions based on anything rational, are you?
  • that tradition really matters at all. Homosexuality has existed for ages and can be traced back at a minimum to the Greeks and probably farther. Therefor it has existed nearly or as long as marriage. Society may have not acknowledged it or frowned upon it but the same could be said about interracial relationships. Maybe the reason there were no gay marriages in the past was due to the fact noone would marry them?

    Marriage as recognized by the state (I'm not including any church arguments here because church
    • For the government to say that any man can marry any woman (that isn't already married)

      Except it doesn't say that. I'm all for gay marriage, but there are still restrictions on who can marry whom, most notably how closely related you can be by blood.

  • I think you have a point. New to me in your analysis is the idea of government interaction with common law.

    Putting aside gay marriage, I wonder what else might follow from this. How does common law interact with the constitution? How about Supreme Court rulings, commonly accepted as authoritative? To what extent do we now have a written constitution, and how much of our de facto constitution is common law and precedent?

    In light of recent court rulings, on what basis does the law forbid any activity or

  • 1 reason that I don't argue the issue very much is because what you seem to be saying. Society travels down this road, & all of a sudden everything looks different. The reason homosexuality seems so acceptable is because of 2 things:
    1. redefinition of roles & responsibilities
    2. prominence of homosexuality in mainstream society

    #1 allows us to say, "What difference does it make? Along as everybody is happy...", & #2 allows us to say, "I'm comfortable with them doing it.".

    A while ago, marriage was pr

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