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The National Council on Identity Policy Legal History: Marriage & Identity The National Council on Identity Policy (NCIDP) was born of the struggles of one tenacious survivor of domestic violence and stalking. The NCIDP continues her work with the help of many. Read more about the NCIDP... ~ This is a page from the NCIDP "A Brief History of Identity" collection. These pages are intended to provide a context for understanding the development of legal principles regarding identity information as it continues to bear upon modern legal governance of identity information. This is an extract of a history of this subject highlighting those aspects that enhance understanding of why the laws of today are such as they are, and how they came to be that way. These pages are intended to cast important perspective upon relevant law, but are not intended as a comprehensive sociological study of these subjects. Throughout most of history, by custom and tradition, an ordinary individual's declared name was the extent of identity information used to describe a person. There were no Social Security Numbers, Drivers' Licenses, Passports, voter registries, deed polls, credit reports.... Any individual could [and can] adopt any identity they chose at will, and their word of it was [and is] the fact of it. (Jonson v. Greaves (KB, 1765); Christianson v. King County (S Ct., 1915); et al.). The idea that an individual might be stuck with a fixed identity at any time in life was never conceived of, and was [and is] abject violence. (Keeble v. Hickeringill (QB, 1707)). That it might be dictated to an individual at any time was unimaginable, and is unconstitutional in the U.S. (Entick v. Carrington and Three Other King's Messengers (KB, 1765); Planned Parenthood of Southeastern Pa. v. Casey (S Ct., 1992); Lawrence v. Texas (S Ct., 2003); et al.). Time and again, history has shown that the slightest routinized solicitations of government to identify individuals is born of, or leads to, the selective oppression of individuals. The privacy right of anonymity is the first and most profound defense of personal safety and common liberty. * Marriage * Across most of the legal history of marriage, traditional marriages were UNREGULATED by the state. The traditional marriages of most people were, historically, what today are often known as "common law marriage". That is, individuals are married in the eyes of the government by virtue of mutually claiming themselves to be married to each other. Moreover, in the earlier traditions of it, dissolution of any childless marriage by mutual consent and agreement could be equally simple, and the former spouses would separate and cease to claim to be married to each other. Marriage ceremonies might or might not be performed, and friends and family might or might not be gathered for such ceremonies. Regardless, inasmuch as the state was concerned, they were all what are now called "common law marriages", but were then simply called "marriages" and "married". Absent prohibitory regulation of the state, minorities, gays, and lesbians were equally free to enter into such marriages, and often did, simply going unnoticed by a state that made no notice of most commoner marriages anyway. A number of modern anti-gay organizations have espoused the notion that "traditional marriage" is regulated by the government so as to be restricted exclusively to be "between a man and a woman". This is an utterly myopic view of historical traditions, limited to novel and recent developments in statutory laws, initially enacted as identity discriminating anti-miscegenation laws (prohibitions against interracial marriages), then later conflated with religious laws that themselves are more recent than not. This view does not nearly do justice to the historical period even just since biblical times, let alone to the far longer history behind "traditional" marriages – and certainly is not justice for gay and lesbian peoples. In later times, marriages by and/or between members of the aristocracy, and only within that aristocracy, were regulated by the state, which was the person of the reigning King or Queen. Such regulation, that is the King's or Queen's approval or disapproval of any marriage within the aristocracy, was based upon political issues, having nothing to do with love. Yet it is this model of loveless state approved or disapproved marriage, historically applied to a very tiny minority of the population, that anti-gay groups claims to be "traditional". This claim seems just completely bizarre and weirdly hypocritical in light of their self-styled "family values" pretense.
Although marriage by mutual declaration, modernly called "common law marriage", continued to be the norm into and through the colonial era, anti-miscegenation laws, laws against interracial marriage, began to take root and were in place in about half of the thirteen colonies by the time of the outbreak of the Revolutionary War. Born of this denigrating, eugenicist view of the racial inferiority of non-whites, these anti-miscegenation laws typically prohibited marriages between whites and non-whites, but in some cases prohibited marriages along different racial lines or standards. In fact, the earliest colonial anti-miscegenation laws specified that only enslaved or indentured blacks could not marry whites, apparently designed to protect the institutions of slavery and indentured servitude. Primarily these laws tended to prohibit any officiation or solemnization of interracial marriages by other parties (such as ministers), rather than actual entry into marriage by the lovers. But these laws also sometimes specifically prohibited cohabitation and sex between interracial couples. Still, anti-miscegenation laws sputtered and even went broadly unenforced in many jurisdictions until the latter 19th Century, leading into and on after the American Civil War, when they were revived with a vengeance as poll taxes and Jim Crow laws were ushered in. The anti-miscegenation eugenicists realized that for the anti-miscegenation laws prohibiting the officiation of marriages to be effective against the actual occurrence of interracial marriages, statutes requiring state sponsored marriages, and prohibiting traditional or "common law" marriages were necessary. Thus began the drive toward requiring marriage "licenses" from the government, increasingly supplanting the ideal of marriages based upon concepts of love and affection with ideals of state enacted bigotry. As a result of this origin in racial bigotry, numerous and odd requirements were imposed upon individuals seeking marriage licenses from the state. For example, many states required medical examinations including blood tests, to enable the state to verify the racial status of each individual; and it became commonly required that both parties to a marriage make a personal appearance before the state to obtain a license, prior to and in addition to appearing before the officiant of the ceremony; all designed to ensure that the state could personally inspect both parties to the marriage and ensure that they were not an interracial couple. Remember to that, in the earlier in U.S. history, tests used by the federal government to determine whether individuals were of Native American descent for treaty purposes included sticking pencils in the hair of tribal members, and if their hair wasn't straight enough to let the pencil fall out, they weren't recognized as Native American by the federal government. This is the caliber of "science" behind eugenics and its anti-miscegenation ideals Now is that science or what? All courtesy of the eugenicists who would later bring the world the European Holocaust of World War II, where millions of gays, lesbians, Jewish, disabled, and other minority people were slaughtered. Through the early 20th Century, after less than 50 years, anti-miscegenation laws specifically prohibiting interracial marriages began to fade again, often being overturned as unconstitutional in state courts. The U.S. Supreme Court finally ruled anti-miscegenation laws unconstitutional in Loving v. Virginia in 1967, ostensibly ending enforcement nationwide. The particular statutes enacted as part of the anti-miscegenation efforts, but themselves only prohibiting recognition of traditional or "common law" marriages and requiring "marriage licenses", generally persisted – even some of the weird screening processes, including blood tests and personal inspection appearances, sometimes re-rationalized on different grounds.
MEANWHILE, (while the lengthy English Common Law history above unfolded, and in that context) as Christianity spread, grew and became increasingly dominant, the ministers and priests of Christiandom were increasingly the individuals called upon by average folks to actually perform wedding ceremonies, administer vows and grant blessings to the marriages of common folks. These religious leaders did not perform these ceremonies for commoners as functionaries of the state, but as respected and admired members of their local communities to whom folks often turned for guidance, counseling and blessings – roles filled prior to the rise of Christianity by community spiritual leaders of older faiths, or by elder or respected community members. For many centuries, gay weddings were often performed by these religious leaders, including by Christian priests and ministers centuries beyond the rise of Christianity. But again, these remained largely beyond the notice of the state, as did most common marriages – although enough documentation exists to show that Christian gay marriages continued through the first 1500 or 1600 years of Christianity.
Now at the dawning of the 21st Century, the remnants of anti-miscegenation laws, borne of racist bigotry, are hotly debated in the U.S., but as anti-"gay marriage" laws. Originally designed to prohibit interracial heterosexual marriages, and to help preserve the institutions of indentured servitude and slavery, these have been deemed the "traditional" form of marriage by those who have now replaced racist bigotry with homophobic bigotry in their readings of those anti-miscegenation laws. History, however, shows us that the truly "traditional" marriages were NOT regulated by the state, and that sweeping religious prohibitions against marriage for gays and lesbians are novel ideas – and wherein those prohibitions were normally limited to prohibiting practitioners of those religions from performing solemnizations of such weddings. One of the very recent tactics against marriage for gays and lesbians has been to enact laws, even state constitutional amendments, specifically stating that marriage is only recognized to be "between a man and a woman". To understand completely what this means requires careful study of the legal meaning of "man" and "woman", which is actually "man" and "other than man". [See more about this critical nuance of law on the Legal History of Birth Certificates & Identity page]. This legal factoid could prove to hold some dramatically unexpected consequences for members of the anti-gay forces pushing for these novel anti-gay restrictions, especially in jurisdictions that may attempt to reinstate eugenicist biological determinism models of old. Currently, a person's legal identity is as that person states it to be, and eugenicist ideas of biological determinism are thankfully now unsupportable and dead in law. Were these eugenicist notions still alive in law, just the passing thought alone of reviving biological determinism begs the question, with a shudder: How many of the anti-gay activists would find themselves biologically unfit, lacking in any way complete, normal and fully functional reproductive capacity to sire a child (the historical standard for the 'biological condition or quality of being a male') such as erectile dysfunction disorder, impotence, or prostate or testicular cancer, and suddenly and unexpectedly realize themselves to be legally "other than male" (and, thus, legally indistinguishable from "female")? [This is illustrated by a theoretical example explained on the Case Study: DSM V page, in section 7 midway down that case study page]. [See more on the Legal History of Birth Certificates & Identity page]. How many of those individuals will happily spend a few minutes in a room with a cup, in front of a town clerk with a microscope, to prove that they meet those standards and can obtain a marriage license with a woman rather than with a man? Indeed then, the limitation to marriage between a man and a woman would, effectively, become a blanket limitation against lesbians, but only a limitation against putatively "gay men" to marriage between a fertile "man" and an infertile "other than male" partner. It becomes wholly unsupportable. On the other hand, the self-determination of identity [See Overview of Identity], and the innumerable variety of potential gender identities, renders laws or constitutional amendments that limit marriage to be "between a man and a woman" extremely tenuous, wholly excluding en masse all who do not identify as one of those two potential gender identities. Indeed, it immediately becomes so problematic that it raises the spectre of reviving the relevance of the legal gender distinctions of "male" and "other than male", ultimately shuffling all of the hundreds or thousands or millions of gender identities that are not "male" into the grouping of "other than male". This in and of itself then immediately becomes a conundrum of the rights of self-determination of those individuals whose non-male identities are being forcibly lumped together so crudely and cruelly. It becomes a violent assault upon those individuals. [See also: Overview of Identity; Legal History of Birth Certificates & Identity; Case Study: DSM V.]
The CALIFORNIA example: In the hotly contested California battle over same-sex marriage rights, an amendment to the state constitution has been written defining marriage to be exclusively "between a man and a woman". Consequently, California is presently required by its own constitution to oppress gay, lesbian and other-gendered people. A federal lawsuit in U.S. District Court (Perry v. Schwarzenhagger (undecided – ongoing in 2010)) continues to challenge that oppression. And, as with most such enactments, the legally identical meanings of "female" and "other than male" were completely ignored by its advocates, creating multiple layers of confusion and injustices that will occupy the courts for decades if left to stand. Previously, however, California had first begun prohibiting the marriage of gays and lesbians by statute in 1977*. When homophobic local city and town clerks found themselves legally unable to deny marriage licenses to the 'free love' gay and lesbian hippies asking for those licenses, many of those clerks refused to perform their duties anyway (18 U.S.C. §§ 241, 242), and then pushed for legislation to legally allow them to make such refusals. That cover-up legislation was enacted in 1977. * It is critically important to note here that the California and U.S. legal systems are rooted in common law, and that California is explicitly a common law state (CCC § 22.2). This means that prohibitions against individuals exist at law ONLY if the prohibitions are expressly enumerated in statutes (or a direct violent assault upon the rights of other human individuals). Gay and lesbian marriage was never expressly prohibited in statues in California until this 1977 law was enacted, and gay and lesbian marriages are known to have occurred prior to this 1977 change of law. In that new 1977 law, a marriage contracted in California was specified to be a contract between a man and a woman. In 2000, in response to the marriages of gays and lesbians in other states, Proposition 22 was passed adding a statute to recognize only marriages between a man and a woman. The principal purpose of this new statute was to prevent California from recognizing the marriages of gays and lesbians performed in other states, since California had already explicitly prohibited contracting of the marriages of gays and lesbians within its borders since 1977. Note, however, that laws were consistently gender-neutralized over the intervening decades, and it seemed extremely likely that in the face of a constitutional challenge, consistent with that history of ending gender differentiation in the legal regard of individuals, the 1977 law would be overturned. Proposition 22, therefore, also served to give a contemporaneous reiteration of that gender differentiated legal treatment as regards marriage. It didn't work, and it was this 1977 law, and the newer 2000 law, that the California Supreme Court finally ruled on and held unconstitutional (In re Marriage Cases (Cal S.Ct, 2008)) in 2008, after three decades of statutory discrimination. In response, the California "Proposition 8" campaign was begun, intended to again impose a prohibition against marriage for gays and lesbians, this time through the state constitution. That amendment was passed in November, 2008, and the marriage of gays and lesbians were again prohibited. The current Perry v. Schwarzenegger case (ongoing in 2010) seeks to have the Proposition 8 state constitutional amendment invalidated as a violation of the federal U.S. constitution. Unlike most U.S. states, California enacted statutes to prohibit enactment of 'common law' marriages within its boundaries from the inception of its statehood (it became a U.S. state in 1850). Here again, this was the product of anti-miscegenation ideologies that were beginning to revive as the nation increasingly polarized over race issues, among other issues, in the growing tensions leading to the outbreak of the American Civil War (1861), and indeed the statutory prohibition on traditional marriage (now known as 'common law marriage') was accompanied by other anti-miscegenation laws. And now (2010), as in many other jurisdictions, these remnants of anti-miscegenation laws are being reframed as anti-gay laws, allowing gays and lesbians to marry only with the approval of the state, and then creating a blanket prohibition on that state approval – the identical legal tactic created by anti-miscegenation idealists long ago.
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