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“Traditional” Marriage Was Already Gone

October 7, 2014

Just one day after the Supreme Court effectively overturned same-sex marriage bans in five states, the Ninth Circuit Court of Appeals tossed out same-sex marriage bans in Idaho and Nevada. It’s a fun decision to read, so you should.

My favorite part of the decision is section IV, where the court addresses additional “miscellaneous” arguments advanced in support of state bans on same-sex marriage. Specifically, marriage equality opponents argued that exclusion of same-sex couples from legal marriage is necessary to preserve “traditional marriage.” In response, the court made an important point I haven’t seen elsewhere.

The court pointed out that in a “traditional” marriage, women were not allowed to “own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands.” If a woman married a foreigner, she lost her American citizenship.

Marriage in Idaho and Nevada today bears “little resemblance” to marriage as it existed a hundred years ago. Consequently, the court observed, excluding same-sex couples from marriage doesn’t so much preserve “traditional marriage” as it preserves the exclusion of same-sex couples from marriage.

Excellent point. Twenty-seven states down, 23 to go.



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