Huh, but wiki has this tidbit:
In Kirby v. Kirby (1921), Mr. Kirby asked the state of Arizona for an annulment of his marriage. He charged that his marriage was invalid because his wife was of 'negro' descent, thus violating the state's anti-miscegenation law. The Arizona Supreme Court judged Mrs. Kirby's race by observing her physical characteristics and determined that she was of mixed race, thereby granting Mr. Kirby's annulment (Pascoe 49-51).
In The Monks case (Estate of Monks, 4. Civ. 2835, Records of California Court of Appeals, Fourth district), the Superior Court of San Diego County in 1939 decided to invalidate the marriage of Marie Antoinette and Allan Monks because she was deemed to have "one eight negro blood". The court case involved a legal challenge over the conflicting wills that had been left by the late Allan Monks, an old one in favor of a friend named Ida Lee and a newer one in favor of his wife. Lee's lawyers charged that the marriage of the Monks, which had taken place in Arizona, was invalid under Arizona state law because Marie Antoinette was "a Negro" and Alan had been white. Despite conflicting testimony by various "expert witnesses, the judged defined Mrs. Monks race by relying on the anatomical "expertise" of a surgeon. The judge ignored the arguments of an antroplogist and a biologist that it was impossible to tell a person's race from physical characteristics. (Pascoe, p. 56).
Monks then decided to challenge the Arizona anti-miscegenation law itself, taking her case to the California Court of Appeals, Fourth District. Monks' lawyers pointed out that the anti-miscegenation law effectively prohibited Monks as a mixed-race person from marrying anyone: "As such, she is prohibited from marrying a negro or any descendant of a negro, a Mongolian or an Indian, a Malay or a Hindu, or any descendants of any of them. Likewise ... as a descendant of a negro she is prohibited from marrying a Caucasian or a descendant of a Caucasian...." The Arizona anti-miscegenation statue thus prohibited Monks from contracting a valid marriage in Arizona, and was therefore an unconstitutional constraint on her liberty. The court, however, dismissed this argument as inapplicable, since the case presented involved not two mixed-race spouses but a mixed-race and a white spouse: "Under the facts presented the appellant does not have the benefit of assailing the validity of the statute." (Pascoe, 60). Dismissing Monks appeal in 1942, the United States Supreme Court refused to reopen the issue.
The Pascoe article wikipedia's citing is really good, from a historian perspective. It's on JSTOR if you can get access to it. This article was just linked on an academic blog today; I've only read the abstract.
Also, there's the "contrary to public policy" exception to the "full faith and credit" clause -- states didn't have to recognize mixed-race marriages contracted in other states, just as they presumably don't have to recognize same-sex marriages contracted in MA. In both cases, the marriages are not recognized as existing for the purposes of state law.
Also, that's a really odd argument you come up with in the post.
But I didn't come up with any argument in the post. The argument would be sort of like this: our linguistic/conceptual intuitions implicitly endorsed the possibility of interracial marriages when interracial marriages were illegal; hence the race case is not an instance of "changing the definition of marriage" in the way that gay marriage would be.
You of the trolley clan would be pretty fucked if you couldn't talk about "intuitions," wouldn't you?
The thing about the anti-interracial marriage statues is that some of them could, if the interpretation was pushed far enough, have outlawed marriage for people of mixed race even if they wanted to marry someone of the opposite gender.
You're against that argument mostly because of the concepts involved?
Labs.
But I do think there's an interesting difference between (a) "that marriage is wrong and should be punished" and (b) "whatever that is, it isn't a marriage."
There's a legal concept that came up the other day w/r/t marriage -- the difference between a marriage that's void, and one that's voidable. A marriage to an underage partner is void -- you don't need to do anything to make it void, it's just not legally a marriage. Going through the form of marriage with a ten-year-old is like going through the form of marriage with a chair, it has no legal effect at all.
A marriage that hasn't been consummated, or was brought about by fraud (I think I'm right about fraud, but I don't actually remember) is voidable -- it can be annulled if someone takes legal action. If it is annulled, it never happened -- it's not like a divorce, a marriage that ended, it's as if the marriage had never taken place. But if there is no legal action, it's a real marriage with all the legal consequences of one.
I wonder if anti-miscegenation laws rendered interracial marriages voidable or void? If the latter, that would suggest that they occupied the same conceptual space that same-sex marriages now do in many people's minds.
(Legal argument is the law of NYS as remembered vaguely from studying for the bar exam. It may be kind of garbled.)
6: I didn't read the statutes nor the entirety of the Wiki-quoted cases, but wouldn't the mixed-race be able to marry each other? And wouldn't mixed race be a hard category to refute if anybody claimed it?
Labs, if you don't get a good answer to this, I may have it in some class notes at home which quoted various anti-miscegenation statutes. But not home right now.
I'm not sure I get the "voidable" vs. "void" distinction. A marriage to an underage partner won't be void - in practice - if no one knows the partner was underage, right? A proceeding might be needed to determine age. Same with interracial marriages, as far as I know: a lot of the testimony consists of determining the race of the partners.
12: I think the wording of the statutes was along the lines of "No one of caucasian descent may marry anyone of negroid descent." If you're of both, you can't marry anyone who's either.
12: I was hoping by now to have found my copy of the Pascoe article, but apparently I don't have it in pdf and I can't use JSTOR anymore. The problem of mixed-race people getting married is discussed there, I think.
8: Well, I know that's not why you're pro gay marriage. I was just kind of shocked by the statement.
Obviously, you're pro gay marriage because you desperately want to be able to register for window treatments and new towels.
45 seconds of googling suggests that interracial marriages were considered void. Voidable would be weird. Most of those voidable categories concern deficiencies that: (1) can be corrected (i.e. lack of consummation) , or (2) the spouses are in a unique position to assess (i.e. fraud). Whereas what would the justification here be? "OMG, I just realized you're not just tan--you're black!"
I guess that's actually possible if state laws were based on the "one drop" rule, but I'd think the more common scenario is that the couple is aware of the racial difference & wants to get married anyway.
Going through the form of marriage with a ten-year-old is like going through the form of marriage with a chair
While I'll grant you that "going through the form of marriage" is a cute euphemism, it's worth noting that there's actually a big difference between these two activities: one's maybe a bit weird, but the other will land you in jail.
14: I'm not sure I get the "voidable" vs. "void" distinction. A marriage to an underage partner won't be void - in practice - if no one knows the partner was underage, right? A proceeding might be needed to determine age. Same with interracial marriages, as far as I know: a lot of the testimony consists of determining the race of the partners.
In practice it's a matter of where the burden is. Jane Jones, after going through a form of marriage to John Smith, can establish to anyone who's interested that she's not really married by showing them her birth certificate which says she's eleven. There might be legal proceedings if people don't believe her and something turns on the fact, but the proceedings aren't changing her marital status, simply identifying what that marital status is.
Joan Roe (an adult), after going through a form of marriage with Richard Doe, can go to court and say "I want the marriage annulled because we've never had sex, it's unconsummated." But if she doesn't, she's really legally married -- in her case, the legal proceeding changes her marital status. It does it in a weird, time-travelish kind of way by saying that she was never married in the first place, but the legal proceeding still changes it, rather than just recognizing a pre-existing fact.
"OMG, I just realized you're not just tan--you're black!"
People did make this kind of claim, though. When divorce laws were more strict, annulments could be appealing.
Maybe the difference between void and voidable is what facts obtain at the time of marriage versus those that obtain later. I have no idea why I'm speculating about this.
18: Which puts them in a class with same sex marriage, then.
18, 20, and now 23: Yes, now that I understand void, I'm pretty sure that's what they were.
But Labs' question isn't really about whether interracial marriages were void or voidable. His question is more whether someone in a state with laws against miscegenation would have considered the idea of a gay marriage more like an interracial marriage or more like a marriage to a chair.
25: Not really. His question was whether states with anti-miscegenation laws thought of themselves as prohibiting a kind of marriage that was a bad, wrong kind of marriage to enter into, or whether they thought of themselves as legally recognizing the fact that marrying someone of a different race wasn't really possible, just like marrying furniture isn't possible. And therefore, was the end of those laws merely the removal of a prohibition, or was it an expansion in the concept of marriage?
If the latter, the argument for same-sex marriage is: we've expanded the concept of marriage once in not all that distant memory, and nothing bad happened, so there's precedent for doing it again.
The void or voidable distinction doesn't settle it, but it suggests that the conception of interracial marriage may have been more like 'you can't marry furniture, it's not possible' than 'the marriage you want to enter into is one that is forbidden by law.'
"Joan Roe (an adult), after going through a form of marriage with Richard Doe, can go to court and say "I want the marriage annulled because we've never had sex, it's unconsummated."
Wait, seriously?
What has three legs, sits in a sink, and is married?
A chair!
Wonder what response someone in a gay marriage who wants out of it would get by asking it be annulled because unconsumated?
26: But LB, I don't think your last paragraph is right. Sure, the void/voidable distinction is telling, and was insightful of you to mention, but just because a marriage is "void" doesn't mean anything beyond "the marriage you want to enter into is one that is forbidden by law."
And surely interracial marriage wasn't an "expansion of the concept of marriage". It was a widely understood concept and, more importantly, one that was presumptively valid unless explicitly prohibited.* I think the exact opposite is true with gay marriage: no one bothered explicitly to prohibit them until very recently, since they weren't even considered possibilities.
*It should be noted that I've only the vaguest, possibly incorrect grasp on the history here.
Has there been a legal case where one of the partners in a hetero marriage undergoes gender-transformation surgery, but the couple stayed married? Seems a good way to slip it in the back door, as it were.
32: yeesh, tenses all over the place there, but I think my meaning is fairly clear.
When we're talking about arrangements among human beings rather than pieces of furniture, I don't know if I buy that there's a real difference between "that's impossible; that's not a real marriage" & "that's immoral; I forbid it".
32: That reminds me, there are transgender people in Iran.
Wait, seriously?
Dry spells don't count, though. I checked.
And surely interracial marriage wasn't an "expansion of the concept of marriage". It was a widely understood concept and, more importantly, one that was presumptively valid unless explicitly prohibited.*
My intuition on this started out the same as yours, and I think as FL's. I would say the void/voidable distinction suggests that maybe we're not unambiguously right about that -- maybe supporters of antimiscegenation laws thought of them as prohibiting something because even though people might try it, it was outside of the proper concept of marriage, just like marrying a small child would be ("chair", I agree, is bogus in this context). I don't know the history, but it's an interesting question.
Once would be enough.
"Alienation of affections" which all refusal of sex might be depending on the facts, would be grounds, back when that mattered, for divorce, not annullment.
32: It's not unheard of for one member of a heteroconventionally married couple to transition genders. I think in most cases, if the couple was married legally, and has not attempted to divorce or get an annulment, they can claim to still be married -- I don't think there's any way a third party can start annulment proceedings, is there?
In other news, I don't understand how there can be people in the world who are so shitty as to want to deny same sex couples the right to marry.
Isn't there an analogy for married priests? I have this belief, that may not be untrue, that if a married Espicopalian priest converts to Catholicism, he becomes a married Catholic priest. Not that that illuminates anything.
Oooh! Oooh! So start with a same sex couple, have one of them do the minimum needed to be legally recognized as transsexual, marry, then transition back! And then go door to door in a fundie neighborhood and say SUCK IT.
I absolutely think that civil union should be legal and marriage should be religious, and rights in law should attach to the civil unions only. Couples who wanted to be married would just shop for a church to bless their union.
Not a workable compromise, because it would require states to honor other states' civil unions, and the homophobes would have to give up too much ground. (Churches wouldn't have to honor other church's marriages, though). But the big pretext, state sanction for abominable marriages, would be gone.
And people who didn't want their blessed marital status to be corrupted by gays being able to do the same thing, could just have religious-only marriages and skip the legal rights.
(Also, I assert that prohibition against same sex marriage is nothing more or less than gender discrimination, not discrimination based on sexual orientation, and should be so framed and so ridiculed, and gay men and lesbians should go down to their local city hall followed by friends with video cameras and loudly say "I'm Alice! I'm a lesbian! This is Bob! He's a gay man! Can we have a marriage license? Thanks!" on a regular basis.)
It's not a real-world solution, LB. In an ideal America only.
Hamilton Lovecraft is St/eve Levin/son?
maybe supporters of antimiscegenation laws thought of them as prohibiting something because even though people might try it, it was outside of the proper concept of marriage
I just don't think this mankes sense. It wasn't viewed as outside the proper "concept of marriage"; it was viewed as an affront to racial purity and harmony and whatnot. And a number of states allowed them, and others explicitly prohibited them.
What's interesting is that while I actually don't buy the analogy as a historical matter, we're progressing to a point where the analogy will be perfectly apt. In other words, I think many people/states can now legitimately claim that they're not failing to permit gay marriage because they believe it's immoral, but because "that's not what marriage is--marriage means a male and a female." But as some states begin to allow the practice, and others explicitly prohibit it in response, the argument shifts. Now it is a conceptual "marriage", just not one that's legally permitted (because it's been explicitly prohibited) in this or that state. Which then becomes a situation that *is* very parallel to the miscegenation issue. (Not perfectly parallel: I think most anti-miscegentation laws said something like "no one of caucasian descent may marry anyone of negroid descent", whereas most anti-gay-marriage laws are something closer to "this thing that you gays want to do, we do not recognize it as a marriage". But the situations are definitely becoming more closely aligned.)
I'm surprised that the billion dollar wedding industry isn't openly supportive of gay marriage- think of the new revenue streams!
I believe than in many European countries couples may opt for two ceremonies, one civil at the courthouse, and if your Mom insists, a church wedding. But the one at the courthouse is the one that counts, as far as the state is concerned.
A friend of mine was married by a gay Episcopal priest (closeted, I think) who believes that gay couples would be more likely to pop for the super duper dressup wedding, and less likely to go for the cheapo $2 wedding. She went for the $2.
I just don't think this mankes sense. It wasn't viewed as outside the proper "concept of marriage"; it was viewed as an affront to racial purity and harmony and whatnot. And a number of states allowed them, and others explicitly prohibited them.
I think you're probably right, and also with the rest of your comment, that the analogy is becoming apter. But it is an interesting way of framing the question.
I wonder if another class of void marriage, bigamous ones, is more illuminating. Polygyny was within the concept of marriage, in that people talked about Brigham Young's wives as if it were meaningful to describe them as such. But a bigamous marriage was still, I would say, something much more like "that's not a marriage" than "that sort of marriage is forbidden" in most 19th C Americans' minds.
Wait, we've got some sort of logical problem here.
"Marriage" isn't something which exists apart from social definitions. It's the old umpire problem - it is what society calls it. So it doesn't make any sense to say that something illegal was still considered marriage, except as a metaphorical extension of the concept (or something like that).
40: yes, there are married Catholic priests. No one who is a Catholic priest may marry, but there are various ways that a married person who feels called to the Catholic priesthood can become priests. You mentioned one. I believe in all cases marital "relations" are supposed to stop, so it is a decision that cannot be made without spousal consent.
I am trying and failing to see how this relates to the topic.
49. gay couples would be more likely to pop for the super duper dressup wedding
The Today Show Throws a Wedding 2010. The contestants are Jim and Mary from Orlando, Phil and Don from New York, Sheila and Jennifer from Oakland and Jason and Nicole from Prarie Corners. Matt Lauer is caught on camera seruptitiously checking out Don's butt.
40. a married Espicopalian priest converts to Catholicism, he becomes a married Catholic priest
Iknow such a priest
50: yes, the bigamy analogy is good, but probably not as much of a rhetorical winner, since it's still outlawed everywhere. And since everyone already argues that accepting gay marriage will be a slippery slope to bigamy....
Following up on 54, I actually think this statement:
But a bigamous marriage was still, I would say, something much more like "that's not a marriage" than "that sort of marriage is forbidden" in most 19th C Americans' minds.
is probably as a historical matter completely wrong.
... mixed-race marriages were recognized as marriages
Polygyny was within the concept of marriage
I dont think that these statements are true, except as either (a) rhetorical positions in the contest about the meaning of social institutions; or (b) metaphor or some such.
I would bet that if you asked someone who was deeply opposed to mixed race of polygynous marriage they'd say "no, those aren't really marriages, those aren't really wives".
27 28
I thought consumation was no longer legally relevant.
For a lot of abolitionists, at least, polygamy was the second of the "twin pillars of barbarism" (the first one being slavery, obviously).
On marrying a chair: slaves, being property, could not marry.
I gotta switch that F and R key.
There are anthropological studies of American kinship which conclude that (on one level) kinship is defined in terms of a code of conduct, a set of rules for relation. By those standards polygynous, mixed, same-sex marriages would all be 'real' marriage to the extent that they identify long-term supportive relations.
There have also always been so-called fictive kin. Such as 'no, Uncle Wiggly isn't really your uncle, but he and you have an avuncular relation so we call him an uncle." In other words, the question of what's a "real" social relation gets very murky very quickly
OT: the wide stance, take 2.
I knew a widow with 12 kids who became a nun. She was an active political liberal too.
Just wanted to say that, not relevant to the argument. Could someone post a trivial thread, though?
Decades ago my sister-in-law's family recognized the gay uncle's partner as an uncle. They continued to invite them to family events even after the blood-relative uncle died.
On the other hand, there were Nazis in the family too. Paging Jonah Goldberg.
Hamilton Lovecraft is St/eve Levin/son?
Not as far as I know.
63: Maybe once the surgery's complete, though.
I thought consumation was no longer legally relevant.
I'd be surprised if consummation were no longer legally relevant. Lawyers?
65: It seems very medieval to me.
Shyeah, just pretend like you haven't even noticed the restored hyphen.
63: IIRC, 44 was pretty much the reasoning of the Hawaii same-sex marriage case for which he was briefly famous. Not that anyone cares.
66. Well, sure. But that's not to say that it's no longer legally relevant.
IA thought bubble: [I thought I was legally required to do those nasty things. I wasn't? Shit.]
65: You think any of the lawyers around here are going to fess up to having occasion to research that issue?
65-66. I see here grounds for annulment including incest, bigamy, minority, unsound mind, force, physical incapacity ("Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be "incurable."), fraud (including concealment of intent not to engage in sexual relations), etc.
70: It's uncanny how you read my mind like that, Emerson.
72: Thanks. I would expect to see similar for most (if not all) other states.
61: Buck's aunt became a nun out of high school, left the convent, got married, had a couple of kids and a career as a horse trainer, her husband died, and she's now a nun again. Sort of the Liz Taylor/Richard Burton model of being the bride of Christ.
One of my dad's cousins (so my first cousin once removed) entered the convent circa 1950 and left in the early 70s. Left with another nun, with whom she has lived ever since, in a small town in Ontario. I'm not sure how long it took people to adjust, but just about everyone in this town is basically okay with this. It's like Emerson said in another thread the other day: in a small town, it's all about getting used to people. Perhaps there is also an Alice Munro "open secrets" angle to the story: if they were to hang gay pride flags in their windows or to avail themselves of Ontario's recent gay marriage ruling to have a wedding, people almost certainly wouldn't be nearly so tolerant (small town Ontario is quite socially conservative in many respects, though liberal on economic issues, at least in comparison to its US equivalents). This cousin is very devout, and teaches catechism at one of the local RC schools.
There is one human race and its nature is two-sexed. The nature of human generativity and of human community? Both-sexed.
The core of marriage (i.e. its nature) is 1) integrates the sexes, 2) contingency for responsible procreation, and 3) these combined as a coherent whole (i.e. a social institution).
Now, if you believe there are "interracial" marriages, please specify the objective criteria upon which you would identify such marriages.
Would you rely on the racist identity filter?
That filter selectively segregated the sexes based on racism, not based on objective criteria for classifying subspecies of humankind. The racist system also was an affront to responsible procreation. It prohibited couples from legitimizing their children. It prohibited the offspring from marrying into the white race. Thus, it was a filter that served as an attack on the core of marriage.
The gay identity filter does something similair, although, perhaps more benignly.
The one-sexed arrangement is sex-segregative. It cannot provide contingency for responsible procreation for no one-sex twosome (or moresome) can procreation without the other sex. Adoption is not procreation. And third party procreation is extramarital even when married couples partake of it. Neither adoption nor third party procreation is the core of marriage. To the contrary since each depends on parental relinquishment (or loss) and since no one-sex-short arrangment would entail the marriage presumption of paternity which depends on both-sexed sexual relations.
Now, if you look carefully at the anti-miscegenation systems of the past, the ineligibility of some to form legally valid marriages was based on procreation. That is, past procreaton which was determined in terms of ancestory; and future procreation which was deemed acceptable or not based on the racist goal of white purity and supremacy. And, as someone has already noted, the eligibility criteria put into doubt the very notion of of subspecies of humankind.
The core of marriage is based on the unity of humankind -- the unity of man and woman -- the unity of dad, mom, and their kids. The racist identity filter was about selectively segregating what the nature of marriage unites.
Pressing the racist identity filter into marriage was for nonmarriage purposes.
Pressing the gay identify filter into marriage is likewise for nonmarriage purposes -- to advance gay identity politics, to elevate sexual orientation as a protected classification, and so forth.
Ultimately, the argumentation for SSM is about replacing marriage recognition with recognition of something else nonmarital. It would bring sex segregation under the auspices of the social institution which integrates the sexes. It would sideline responsible procreation and thus gut marriage of its core. It would render marriage recognition incoherent.
Now, sure, there may be good arguments in favor of some kind of new relationship status, at law, for the nonmarital arrangements. If so, such arrangements need to make an independent claim based on the nature of the nonmarital type of relationship.
Here are links to blogposts on the subject of the racial analogy used in SSM argumentation:
Moral Dynamite
http://opine-editorials.blogspot.com/2007/05/moral-dynamite.html
The race and gender analogy
http://opine-editorials.blogspot.com/2005/09/why-race-and-gender-are-not-integrated.html
Revolting and Unresolved
http://opine-editorials.blogspot.com/2006/10/revolting-and-unresolved.html
Loving Analogy, still flawed
http://opine-editorials.blogspot.com/2005/12/loving-analogy-still-flawed.html
Chairm Ohn
Has there been a legal case where one of the partners in a hetero marriage undergoes gender-transformation surgery, but the couple stayed married? Seems a good way to slip it in the back door, as it were.
Not so much. Most states have laws requiring married persons undergoing gender reassignment surgery to divorce for just that reason. From personal experience, a very good friend did the full de-Monty and was required by Kansas law to divorce his wife beforehand. After all was said and done, they had a commitment ceremony at their house, followed by the group going to a Holly Near concert that night. As I sat in the 10th row, I remember thinking to myself that as a hetero married male, I was probably in a distinct minority in that audience.
I'm surprised that the billion dollar wedding industry isn't openly supportive of gay marriage- think of the new revenue streams!
They don't have to take a position; we're already hiring them for commitment ceremonies and the fundies don't have to acknowledge that they are part of a mixed clientele. And we totally spring for the super-dupers.
41 is only possible if gender transition also let's you legally switch gender: is that the case in the USA, or is frex a man turned into a woman still legally a man?
(In the Netherlands it doesn't really matter marriage wise, because same sex couples can marry legally and have been able for years.)
I'm not a lawyer, but I always thought the main point of miscegenation laws was to prevent interbreeding, to preserve the white race or something. If so, then in that sense, the intent of the law is very different from laws forbidding same-sex marriage.
" ... were recognized as marriages but ... "
Maybe this statement is where things go awry. Dim memories are coming back.
There are three aspects to kinship:
First, what people say the rules are: kinship is a system of blood and marriage, consanguinity and affinity, anyone who is born to or marries a member of the family becomes a member of the family.
Second, what people say they do: "of course I love my family"
Third, what people are observed doing: "Your father's brother, who divorced nice Aunt Jane and ran away with that bimbo? We don't mention him, we don't invite him to family gatherings because it'd cause a scene with Aunt Jane, so he's no longer a member of this family. But your pet mice? Totally family".
So it's important to ask 'recognized as marriage by whom, and for what purpose?'. The law is merely one of the many conflicting and inconsistent sets of rules of behavior, of definitions of social relations. And not a particularly persuasive or important one, either.