| The Problem of Defining Marriage and Family | |
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Shortly after the United Nations (UN) was formed in October 1945, work began on defining the basic rights of all people. The work resulted in the Universal Declaration of Human Rights (UDHR) based on H.G. Wells writing on human rights. Input for the final version of the UDHR came from representatives with a wide variety of legal and cultural backgrounds from all around the world. The Declaration was presented by the UN General Assembly in Paris on December 10, 1948. The UDHR defines a proposed global standard for fundamental human rights to be universally protected by all state and local governments. The two main references to “marriage” and "family" are found in Articles 12 and 16 as follows: Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 16. 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Forty-eight countries voted in favor of the UDHR out of the 58 member states in the UN in 1948. No member state voted against, but 8 abstained. Honduras and Yemen failed to vote or abstain. Great Brittan voted in favor of the Declaration while expressing frustration that the UDHR lacked legal force. In 1976 the International Covenant on Civil and Political Rights gave legal status to most of the UDHR. The United States not only voted for the UDHR, but had a guiding role in its creation. Nowhere in the UDHR are the terms “marriage” or “family” defined. In terms of human cultures it would be a fool’s errand to attempt these definitions. For example in some cultures family extends temporal bounds to include ancestors. Other cultures limit families by religious belief and practices. Many societies limit families by genetic relations and legal contracts. There is a bit of a problem with genetic definitions of family as the entire human race is related to each other. (If you question our inter-relationship, search "mitochondrial Eve and Adam" for details.) Then there is the question of the number and sexes of conjugal spouses found in various cultural marriage traditions. Matrilineal family structures often have the grandmother as the head of the household that includes her female children and their children. Romantic relations come and go with little effect on the young. Monogamy, particularly life-long monogamy, is a fairly recent cultural practice with the "life-long" aspect followed by a diminishing minority. “Until two centuries ago,” said Harvard historian Nancy Cott, "monogamous households were a tiny, tiny portion of the world population, found in just Western Europe and little settlements in North America.” Steven Mintz, history professor at Columbia University, summed up the definition problem well when he said, “Whenever people talk about traditional marriage or traditional families, historians throw up their hands. We say, 'When and where?'” Marriage and family concepts have been continually redefined as cultures evolve and natural, economic and technological situations change. Let's review some significant historical facts: 2000 BC (more or less) In Mesopotamia is found the first recorded evidence of marriage contracts and ceremonies. Marriage served as a means of preserving power. Nobility and members of the ruling class married off daughters to forge alliances, acquire territory and have legal heirs. Most women had little say over whom they married. Note that the word mother is derived from the Latin mater as is the word matrimony that implies a legal contract. 1215 Over 3,000 years later, marriage is declared one of the church's seven sacraments. 1306 Emperor Andronicus II 1258–1332, Byzantine emperor (1282–1328) banned same-sex bonding ceremonies. "In the period up to roughly the thirteenth century, male bonding ceremonies were performed in churches all over the Mediterranean. These unions were sanctified by priests with many of the same prayers and rituals used to join men and women in marriage. The ceremonies stressed love and personal commitment over procreation, but surely not everyone was fooled." (Berkowitz 2013) In United States history alone marriage has been redefined quite a few times (Hopkins Kiernan 2016) along with the definition of family. Here are some examples: American Colonial Times Through the Present The United States started out with these traditions of marriage. 1776 A note for later reference: Laws against interracial marriage, called anti-miscegenation laws, existed in seven of the original thirteen US Colonies. That means interracial marriage was legal, but probably frowned upon, in New Hampshire, Rhode Island, Connecticut, New York, New Jersey and Delaware. Of those six, only Delaware ever adopted an anti-miscegenation law in 1935. (J. R. Browning 1951) Number of Parents English common law stipulated that children have at most two legal parents, one mother and one father. Presumptions in Paternity 1777 Lord Mansfield’s Rule (England) Lord Mansfield is frequently mentioned in modern legal settings as the originator of "Lord Mansfield's Rule", in his own words: "...the law of England is clear, that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage." (Goodright v Moss (1777) 2 Cowp 591, 98 ER 1257 at 592) Lord Mansfeild' Rule is mostly cited to say, 'Marriage creates a conclusive presumption of a husband's paternity of his wife's child.' But “marital presumption” was already part of English common law. The law is confusing. That’s why you need an attorney instead of taking anything I say as legal advice. Side Note: The actual question in Mansfield was admissibility of evidence as to whether a child had been born prior to the marriage thus delegitimizing the child. Specifically, could parent’s statements be used as evidence that the child was born before their marriage and, therefore, be judged illegitimate? Mansfield ruled that such statements could be used as evidence in a trial. It was about bastardy, not parentage. Married Woman’s Lack of Legal Status Coverture (or couverture) was a legal doctrine in the common law of England for several centuries and brought to the American Colonies. Under coverture a single woman could get schooling (with limitations on higher education), earn and save money, sign legal documents, own personal property, own real property (land and improvements), and petition the court. All the basics needed for having a viable economic existence and identity. However, if a woman married she was legally considered the chattel of her husband, his possession. She forfeited all property she legally owned before her marriage. All properties became her husband's on her wedding day. She also lost her legal right to appear in court, to sign contracts or to do business. Any money she earned from work was her husband’s property. Further she had no control over decisions about her children and could not pursue an education without her husband’s permission. In a legal sense, under coverture a wife's identity was subsumed by the husband. From a legal standpoint the husband and wife became one person – the husband. "Under coverture, the status of married women was called 'feme covert,' which literally meant “covered woman.” Her legal identity and rights were covered by her husband’s, and her own legal identity was nonexistent." (Keri Engel) Concepts of coverture lingered for decades. For example, until the late 20th century, married women were often kept from taking out loans - even when they were gainfully employed - without their husband cosigning. One remnant of coverture is still common, the adoption by women of their husband's last name. However, this practice is beginning to change by either the wife refusing to change her name, by the use of a hyphenated last name and, in currently rare situations, the adoption of the wife's last name by the husband. 1839 Mississippi is the first state in the U.S. to grant women the right to hold property in their own name with their husband's permission. It was a small, but meaningful break with coverture that spread across the U.S. Married women gaining a legal identity and economic sovereignty was a huge redefinition of marriage. 1852 Massachusetts becomes the first state to mandate compulsory child education. Parents are legally required to send their children to school. This has the effect of limiting the hours available for children to work directly for family businesses or outside paid labor for family income. Note: Children were essential economic assets to many families. Child labor was normal whether it was for labor on the family farm or as factory workers for urban dwellers. Children learned what they needed to know from the work they did. Mandatory education infringed on parental control of children and forced a redefinition of a child’s role for the good of society. 1865 The Thirteenth Amendment to the U.S. Constitution that outlawed slavery also had the follow-on effect of legalizing the marriages of former slaves. (How some white folks must have felt their marriages sullied by this redefinition of marriage.) 1879 In Reynolds v. United States the Supreme Court ruled unanimously that federal law prohibiting polygamy did not violate the free exercise of religion guaranteed in the First Amendment thereby redefining what had been a legal family. The Court held that the 1st amendments guarantee of free exercise of religion was not absolute. The Court defined a belief-action dichotomy for use in free exercise clause cases. It said the federal government cannot interfere with a person’s religious beliefs, except when a religious practice violates certain notions of health, safety, and morality — commonly called police powers. While Reynolds had the freedom to believe in polygamy he could not practice it, because the practice violated national police powers. It is interesting to note the Mormon Church not only forbids polygamy, but professes to not believe in polygamy – even though the belief is legal. 1883 Pace v Alabama the United States Supreme Court upholds the state of Alabama's ban on marriages between interracial couples. A Supreme Court ruling in a state legal case affects the entire United States as happened with the ruling on same-sex marriage. Remember that six of the original Colonies had no laws against interracial marriage. The Pace v Alabama ruling clears the way for the implementation of anti-miscegenation laws everywhere. And many states went on to enact such laws. 1938 Congress regulates child labor with the Fair Labor Standards Act limiting what parents can demand of their children in the way of paid labor for family income. Children were no longer the economic asset they once were. Now a child’s economic contribution to its family was even further restricted by a national law. Children become a net cost to the parents instead of an asset - another major redefinition of the family and expectations of married life. 1953 Oklahoma passes the first law permitting no-fault divorces that finally allow married couples to make a mutually shared decision to get divorced without having to name a guilty party responsible for the divorce. This was a redefinition of the marriage contract. Yes, marriage is a contract. The laws of all 50 states, Washington DC and the Uniform Code of Military Justice all refer to marriage as a contract. And now the marriage contract could be broken without fault. The most common “fault” used by couple in divorce was impotence. I mean, how was the court going to test that? 1965 In Griswold v. Connecticut the U.S. Supreme Court rules birth control pills legal for married women. Another blow against coverture giving women some agency over their bodies. 1967 Loving v. Virginia resulted in termination of the 276-year ban that the state of Virginia had on interracial marriages. For the first time in United States history the Supreme Court declared marriage is a civil right. This ruling on a state law by the US Supreme Court invalidated anti-miscegenation laws throughout the country. Once again marriage is redefined. 1970 Seventeen years after Oklahoma, New York and other states start passing no-fault divorce legislation. Without a federal law or Supreme Court ruling, these laws are handled on a state by state basis. This is the basis or state rights vs. federal rights arguments. The question is whether a law is in the national interest or not? The US Constitution says nothing about marriage. It also does not define what constitutes a family. Supreme Court Judge Roberts, in his dissent to Obergefell (2015), found several definitions of marriage from dictionaries that say marriage is “the legal union of a man and woman for life.” However, divorce is now easier to obtain. My question is just who is this all knowing oracle that has the true definition of traditional marriage? Seems more and more as if a tradition definition does not exist. 1972 In Eisenstadt v. Baird the U.S. Supreme Court - arguing that treating married and unmarried people differently violated the Equal Protection Clause of the US Constitution - legalizes the birth control pill for all adults. "With the advent of the birth-control pill, young people decoupled sex from pregnancy and marriage, giving women more control over their reproductive choices and liberalizing sexual mores." (Redburn 2019). 1973 The Uniform Parentage Act removed the legal status of illegitimacy. The Act also describes a number of methods to determine a child’s legal parentage and attempts to ensure that "all children and all parents have equal rights with respect to each other,” without regard to the marital status of their parents. Married parents no longer have an unassailable right to be the legal parents of their biological children. This increases the ability of the court to protect children from damaging or dangerous circumstances. Children’s legal status is once again redefined. 1977 Absolute marital presumption is challenged. In Serafin v. Serafin (258 N.W.2d 461, 463 (Mich. 1977)), the Michigan Supreme Court stated, “[i]n our view the public peace and respect for the law are enhanced, not by arbitrarily assigning the duty of support to a man who is not the father of the child, but by allowing him to contest paternity by his best evidence.” Many claims of high misattribution of paternity rates are based on limited or corrupt data. More current and scientifically sound research indicates a low percentage of husbands not being the biological father of their wife’s child. One relatively recent study in the US and Australia concludes, "...misattributed paternity from samples that cross a broad range of societies which suggest the rate is between 1% and 3%" (Rob Brooks 2014). With complete human genome sequencing starting in 2003, the best evidence available has improved quite a bit since 1977. No valid research supports the wild claims of a 10%, 20% or even 30% rate of misattributed paternity. 1984 The city of Berkeley, California becomes the first local government body to pass a domestic partnership law that gave same-sex couples many of the benefits of civil marriage. Why Berkeley still hasn’t stepped up for polyamorous families is beyond me. It’s not like there are no polyam fams in the Berkeley area. 2002 The expanded Uniform Parentage Act added provisions for a non-judicial acknowledgment of paternity procedure equivalent to an adjudication of parentage in a court. The Act also added a paternity registry and included rules governing genetic testing and determination of parentage of children who were not the result of sexual activity. This is in response to scientific progress in reproduction technologies. In vitro fertilization was widely criticized as “play god” by right to life groups. To this day the Catholic church is still against IVF. "According to the Catechism, IVF is considered sinful partly because it dissociates the sexual act from the procreative act." (S. Ciancio 2019) Thankfully we do not live in a theocracy. In an attempt at civility I will refrain from further comment. 2013 California passed Senate Bill No. 274 allowing children to have more than two parents. The law allows a judge to assign legal parent status to any number of adults with a parent relationship to a single child or children. Text in the bill includes the following, "In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child." Detriment to the child includes the child’s removal from someone who has provided physical and emotion support to the child. But a Californian judge took the next logical step granting a male-polyamorous triad to have all three names on their daughter’s birth certificate. It was a precedent setting decision, allowing the first polyamorous family in the United States to be named as the legal parents of a child. 2015 Obergefell v. Hodges the Supreme Court rules that the Fourteenth Amendment to the constitution demands a State to license a marriage between two people of the same-sex and to recognize marriages between two people of the same-sex when their marriage was lawfully licensed and performed in another State. This ruling legalized same-sex civil marriage in the United States. Notice I specified “civil marriage” in the Obergefell decision. It is my fervent belief that the state (federal or local) should not be defining church marriage, as the church should not be defining civil marriage. I don’t see priests being forced to perform same-sex weddings. And I don’t think they should be forced to do so. 2017 The Uniform Parentage Act makes five major changes to the Act. 1. It seeks to ensure the equal treatment of children born to same-sex couples. 2. A provision is added to grant legal parent status to a de facto parent of a child. 3. The Act prohibits establishment of a parent-child relationship by the perpetrator of a sexual assault that resulted in the conception of the child. 4. Updates are added to the surrogacy provisions to reflect technological and treatment developments. 5. Article 9 is added to address the rights of children born using assisted reproductive technology to access medical and identifying information regarding any gamete providers. 2020 The city of Somerville, Massachusetts becomes the first local government body to legally recognize polyamorous relationships by allowing more than two adults to form a domestic partnership. Some see this as the start of the slippery slope towards polyamorous marriage. After all, it worked for same sex marriage didn’t it? Chief Justice John Roberts — who dissented in the Obergefell decision — argued the ruling would open the door to legalizing plural marriage. It might, eventually. I don’t know that I really care, but some people do. What I care about are legal protections of basic human rights and the civil rights of U.S. citizens. Polyamorous people – married or not – should not be discriminated against. No special rights or privileges, just non-discrimination. Somerville is leading the way in providing legal protections to polyamorous people. Is this redefining the family? Probably, but we keep redefining them, and families keep forming. Various Dates over the Years Many states had common law marriage statutes. If a couple publically lived as man and wife for 2 or 3 years (depending on local jurisdiction) they would become legally married in the eyes of the state where they lived. Common Law states are declining in number. That doesn’t mean couple living together in states that never had Common Law Marriage are in the clear. Every other state has some version of meretricious relationship laws on the books. And we've looked at them all. (Gilmore de Arcana 2015) Similar to Common Law marriage, meretricious relationships are often determined by several, if not all, of the follow criteria: duration of the relationship, duration of continuous cohabitation, nature of the relationship, pooling of resources for joint projects, intent of the parties, and sexual activity and fidelity of the parties. Cohabitation can be determined by the use of the same mailing address and neighborhood witnesses. Pooling resources can be proven by joint checking and/or savings and purchase records for joint projects. Proving intent is somewhat more challenging and I really don't want to think about how the state goes about proving sexual activity/fidelity. Meretricious relationships mostly give the participants the responsibilities of a divorce with few to none of the benefits of marriage. But where did the word meretricious come from and what does it mean? Meretricious 1: of or relating to a prostitute : having the nature of prostitution meretricious relationships 2a: tawdrily and falsely attractive the paradise they found was a piece of meretricious trash — Carolyn See b: superficially (see SUPERFICIAL sense 2) significant : PRETENTIOUS scholarly names to provide fig-leaves of respectability for meretricious but stylish books An adjectival form of meretrix (plural: meretrices) was a registered higher class female prostitute. [Latin meretrīcius, of prostitutes, from meretrīx, meretrīc-, prostitute, from merēre, to earn money; see (s)mer- in Indo-European roots.] To lessen the sting of the term meretricious, some states use the phrase "committed intimate relationship." Conclusions Many local laws in the United States attempt definitions of what constitutes a family. Mostly we find these definitions in zoning laws for residential areas. Often these laws are meant to maintain the non-commercial, low-density nature of a neighborhood by prohibiting businesses such as boarding houses, dormitories or other commercial group living arrangements. To accomplish this many zoning laws limit the number of unrelated adults living in a home. With the rise of unmarried couples, polyamorous families and cohabitating long-term friends, these zoning definitions are not serving their intended purpose. Several solutions are available to resolve the tension between family law concepts of a functional family vs the limited definitions of formal families. First, do away with family definitions in zoning laws altogether and focus on restricting business ventures encroaching on a neighborhood. Define occupancy rates for homes based on the number of bedrooms. Formalize functional family definitions to include polyamorous families, cohabiting partners with cohabitation agreements and groups with other than sexual intimate relationships such as long-term groups of friends who want to live together and share a household. These updates of zoning laws are one of the practical ways we can celebrate our differences. As we have seen, the United States has redefined marriage and families quite a few times. Cultural evolution and growth demand this and the redefinition of marriage is likely to continue. Sometimes these definitions must be corrected as with the 1883 ban on interracial marriage. But that is simply the nature of any legal system. The laws of civilization are never permanent, or perfect. Richard Gilmore 1/25/2022 |
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