The Ongoing Evolution of Marriage

“Marriage originated as a social construct that allowed family patriarchs to facilitate the transfer of chattel property such as livestock or daughters through lawful contracts…”


--Jon Stewart, The Daily Show, May 9, 2012
(watch video here)

Two things happened last week in the battle for marriage equality. First, the State of North Carolina once again voted to deny a group of citizens their right to marry. The last time North Carolina amended their constitution on marriage was in 1875 to ban interracial marriage:

“All marriages between a white person and a Negro, or between a white person and a person of Negro descent to the third generation inclusive are hereby forever prohibited.”

The second thing that happened was President Obama endorsed marriage equality. We were thrilled for our country upon hearing his announcement! Steps like these build a true foundation of equality and freedom for a country that has always presented itself as the land of equality, but has often not lived up to that representation.

The arguments against same-sex marriage are discriminatory and exclusionary. While those who would deny the right of marriage talk quite often about the history and traditions of our country, they neglect to acknowledge one of our most enduring traditions: the tradition of excluding many of our citizens from the rights and privileges that other citizens enjoy.

From the very inception of our country when only white property owners could vote, discrimination has been a blemish on the face of our nation. As a country we have supported and practiced discrimination toward Blacks, Asians, Irish, Italians, Hispanics, women, the poor and children, to name a few. In the past, women and children were seen as the property of men; Blacks and Asians, slaves. Our history is rife with the exclusion of whole segments of the population from the rights and privileges of the majority.

Our history does not include a legacy of universal acceptance and support for the rights of the minority; but rather a history of bitter and long battles for minorities to achieve their rights – a battle that continues even today. Women are still fighting for equal pay and for the right to make their medical decisions without the interference of the state. The hateful backlash after President Obama’s election exposed clearly that the battle for racial equality is far from won. Marriage equality is just another part of that struggle.

The primary arguments against marriage equality are couched in religious terms, or the supposed established tradition of marriage only being between one man and one woman. The truth is that marriage has been defined in numerous ways throughout history, and is continuing its evolution.

Many tribal societies traditionally have children living with aunts and uncles, or moving from household to household within a village. Some cultures and religions support polygamous marriages. Divorce is very easy in some cultures, and endemic in ours. The so-called traditional marriage of one man and one woman is a myth that excludes single- parent families and gay couples, over half of all American families.

Even the traditional marriage in America has been an evolving construct. Early in our country’s history, both women and children were seen and treated as property owned by the husband. Both wives and children could be beaten lawfully; women belonged to their husband and legally a husband had absolute sexual rights. Therefore, there was no such thing as rape in marriage. In marriage the husband held all property and controlled all assets.

We have redefined marriage in this country as recently as 1967, when it was made legal for interracial couples to get married. Prior to 1967, it was illegal in most states for interracial couples to marry based primarily on religious grounds. In deciding the case that overruled all statutes against intermarriage of the races, the U. S. Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967) wrote:

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

Vital personal rights, unless you’re gay of course. Politicians, legislators and congress should be making decisions based on equality, justice and the law not writing a moral code based on theology. In Lawrence v. Texas, 539 U.S. 558 (2003) which overturned a Texas sodomy statute, the U. S. Supreme Court states:

“The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions as accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’”

The obligation of lawmakers is, and should be to define the liberty of all, not to mandate their own moral code.

For further reading and a legal analysis of Gay Rights in Wyoming, please take time to read Cathy Connolly’s examination of federal and state law published by the University of Wyoming Law Review.

Why Does the Wyoming ACLU Represent Prisoners?

Because few, if any, other organizations in Wyoming do. Prisoners, though some have committed awful deeds, are a vulnerable population in our society. The ACLU subscribes to the principle that if the rights of society’s most vulnerable members are denied, everyone’s rights are at risk. And according to the Wyoming Department of Corrections, about 97% of people in our prisons will return to our communities -- how we treat prisoners should give us an idea of what we should expect from them when they come home.

For the first time, the Wyoming ACLU has released data based on the complaints we received in 2011 from prisoners in Wyoming. "Incarceration In Wyoming" (in pdf) gives an overview on our prison work over the past year. We hope that making this information available will increase public awareness, accountability and transparency of detention facilities in Wyoming.

Promoting humane conditions of confinement, consistent with constitutional protections like health, safety and human dignity, is one of our highest priorities. The Wyoming ACLU receives complaints about jail and prison conditions and other legal claims from prisoners, attorneys, friends and family members.

Deficiencies in medical and mental health care top the list of complaints from prisoners in Wyoming. These complaints are especially concerning in light of the fact that many mental health patients end up in Wyoming’s justice system. Other areas in which we received a high frequency of complaints include civil liberties, conditions of confinement and threats to personal safety.

The ACLU also works to combat over-incarceration in America. The U.S. imprisons more individuals – both in numbers and by percentage of the population – than any other country in the world, resulting in heavy costs to society, communities and taxpayers.

Did you know…

• With only 5% of the world’s population, the U.S. has 25% of the world’s prison population – that makes us the world’s largest jailer.
• Since 1970, U.S. prison population has risen 700%
• One in 99 adults are living behind bars in the U.S. This marks the highest rate of imprisonment in American history.
• One in 31 adults are under some form of correctional control, counting prison, jail, probation and parole populations.

A large part of the challenges jail officials face is how to handle an ever-growing prison population where inmates are getting longer sentences, despite limited resources and demands for budget cuts. Understaffing and overcrowding often play a significant role in the complaints received by the ACLU.

Wyoming has no statutes that address minimum standards for jails or prisons. The Wyoming ACLU is the only agency in the state that will investigate or review inmate complaints regarding the conditions of confinement.

"Incarceration" (in pdf) includes a directory of all Wyoming Department of Corrections institutions and county jails, along with “Know Your Rights” resource guides. We distribute “Know Your Rights” guides to inform prisoners of their constitutional rights based on the nature of their complaint.