By Roderick Long

Critics of same-sex marriage often argue that its defenders are guilty of seeking to “redefine” marriage.

It is true that the term “marriage” has traditionally been applied, for the most part, to heterosexual unions specifically (though often polygamous ones, a fact such critics persistently pretend to overlook). But it is also true that the term “marriage” has traditionally been applied exclusively to relationships in which the husband held legal authority over the wife – relationships in which the wife was not only subordinated to her husband but actually absorbed into his legal identity.

If we are going to appeal to traditional usage to deny that same-sex partnerships are genuine marriages, then by the same argument we will have to deny that relationships between legal equals can count as marriages. In the traditional meaning of “marriage,” then, there are no married couples in the United States today. 

If instead we insist that relationships among legal equals can be marriages, then we have granted that marriage is an open-textured concept whose meaning is not limited to its historically given forms; in that case, same-sex marriage can no longer be ruled out by linguistic fiat.

In an 1853 debate over “free love” (i.e., the separation of sex and state) with libertarian anarchist Stephen Pearl Andrews, communitarian Horace Greeley (of “go west, young man” fame) defended his conception of marriage as both State-sanctioned andindissoluble (or nearly so – he admitted adultery as legitimate grounds for divorce, though added that he “should oppose even that, if it did not seem to be upheld by the personal authority of Christ”). From this conception Greeley inferred, logically enough, that no relationship that is not State-sanctioned and not indissoluble (except for adultery) counts as marriage at all:

[T]his reminds me of the kindred case of two persons in Nantucket who have advertised in the newspapers that they have formed a matrimonial connection for life, oras long as they can agree; adding, that they consider this partnership exclusively their own affair, in which nobody else has any concern. I am glad they have the grace not to make the State a party to any such arrangement as this. ButtrueMarriage – the union of one man with one woman for life, in holy obedience to the law and purpose of God, and for the rearing up of pure, virtuous, and modest sons and daughters to the State – is a union so radically different from this, that I trust the Nantucket couple will not claim, or that, at all events, their neighbors will not concede, to their selfish, shameful alliance the honorable appellation of Marriage. Let us, at least, “hold fast the form of sound words.”

In Greeley’s day, most jurisdictions within the U.S. recognized no grounds for divorce other than adultery (though that was beginning to change, hinc illæ lachrymæ). Today that is no longer true. If, by Greeley’s definition, marriage is inter alia a union that islegally indissoluble (except for adultery), and if current U.S. law recognises no such indissoluble unions, that means that, by Greeley’s definition, nobody in the U. S. today is married.

33 years after Greeley’s animadversions against this unnamed Nantucket couple, a similar event occurred: Kansas free-love activists Lillian Harman and Edwin Walker announced their marriage. Regarding marriage as a “wholly private compact” of no concern to anybody by themselves, Harman and Walker had conducted their own marriage ceremony without involving either State or clergy. For this impertinence they were imprisoned. One of the presiding judges in the case – ironically named Judge Valentine – raised the question whether the couple’s crime was a) living together as a married couple without actually being married, or b) getting married but in an illegal fashion. Valentine came down on the side of (a), but on somewhat different grounds from Greeley’s.

Judge Valentine, unlike Greeley, granted that genuine marriage did not require any ceremony of the State: under common law “the mere living together as husband and wife of a man and woman competent to marry each other, with the honest intention of being husband and wife so long as they both shall live, will constitute them husband and wife, and create a valid marriage.” (He also seemed to require, again unlike Greeley, not that the marriage be actually indissoluble but only that the partners intend that it not be dissolved.) But he rejected the legality of the marriage for a different reason:

In my opinion, the union between E. C. Walker and Lillian Harman was no marriage, and they deserve all the punishment which has been inflicted upon them. … In the present case, the parties repudiated nearly everything essential to a valid marriage, and openly avowed this repudiation at the commencement of their union.
(Quoted in Hal D. Sears,The Sex Radicals: Free Love in High Victorian America, p. 94.)

What “essentials” had the couple repudiated? In their marriage ceremony Harman had declined not only to vow obedience to her husband (such a vow being repugnant both to her feminism and to her libertarian anarchism) but also to vow love unto death: “I make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act, always, as my conscience and best judgment shall dictate.” She also declined to submerge her individuality in another’s by taking her husband’s last name: “I retain, also, my full maiden name, as I am sure it is my duty to do.” Walker for his part vowed that “Lillian is and will continue to be as free to repulse any and all advances of mine as she has been heretofore. In joining with me in this love and labor union, she has not alienated a single natural right. She remains sovereign of herself, as I of myself, and we … repudiate all powers legally conferred upon husbands and wives.” In particular he repudiated any right as husband to control his wife’s property; he also acknowledged his “responsibility to her as regards the care of offspring, if any, and her paramount right to the custody thereof should any unfortunate fate dissolve this union.” Harman’s father added: “I do not ‘give away the bride,’ as I wish her to be always the owner of her person.” (Sears, p. 85.)

In Judge Valentine’s eyes, then, the “essentials” of marriage apparently included not only an intended commitment for life but also the wife’s duty to obey her husband and take his last name, and the husband’s right to rape his wife, to control her property, and to control her access to her children (rights that the husband did indeed traditionally enjoy under 19th-century American law – and which survived longer into the 20th century than you may think).

If, then, we apply Valentine’s 1887 definition of marriage to our own time, then any couples that are joined under marriage statutes that fail to require the wife’s legal subordination to her husband, or fail to require her to take her husband’s last name, or do not give the husband total control over his wife’s body, property, and children, are not married at all. If Greeley and Valentine were to timewarp their way to the present day, they would see no unions that they would recognise as marriages – not, at least, if they were to “hold fast the form of sound words.”

So my question, to those today who maintain that same-sex marriage is a contradiction in terms, is this: on what grounds is your definition, which rules out same-sex unions but allows dissoluble, non-patriarchal heterosexual unions to count as marriages, to be preferred to Horace Greeley’s or Judge Valentine’s?

*This article was previously published on Bleeding Heart Libertarians.

Roderick T. Long is a senior fellow of the Ludwig von Mises Institute, Professor of Philosophy at Auburn University, and president of both the Molinari Institute and Molinari Society. He is the author of Reason and Value: Aristotle versus Rand (2000) and Wittgenstein, Austrian Economics, and the Logic of Action (forthcoming), as well as of articles in journals including Social Philosophy and Policy and Utilitas and the co-editor (with Tibor Machan) of Anarchism/Minarchism: Is a Government Part of a Free Country? (2008). He holds a PhD from Cornell University and blogs at Austro-Athenian Empire.

Posted by The Indian Economist