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September 2007The Right to Marry: Should There Be Equality?by Klaus O. Snyder Do you remember when you were in high school, when all the students lined up in the gym and the instructor had a particularly undesirable or challenging task that she wanted to be done? She then asked those assembled: "If anyone would like to volunteer, please take one step forward." I feel like the guy who was the only one who failed to take one step backward, and now stand before you having volunteered (I think) for this challenging task. The task I was asked to take on was to present some of the legal arguments in opposition to the establishment of "gay marriage," or, in the new nomenclature, the establishment of "marriage equality" in Washington state. The issue of marriage equality or "gay marriage," as it is commonly known, is quite controversial. It is not the purpose of this article to reiterate the arguments for, nor to present all of the legal arguments against, the concept of changing the way we define "marriage" under our laws or in American society and culture. Instead, the purpose of this brief research article is to discuss the legal history of, and some of the ramifications which may arise from, the decision that has been made by our Washington State Legislature when it passed Senate Bill (SB) 5336 "Domestic Partnerships" this last legislative session.1 SB 5336 was a legislative response to our State Supreme Court's 2006 decision in Anderson v. King County, which upheld the limitation of marriage to opposite-sex couples.2 Marriage is defined in the Merriam Webster Dictionary as: [T]he state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law.3 Interestingly enough, Merriam Webster also contains the following definition of marriage: [T]he state of being united to a person of the same sex in relationship like that of traditional marriage [same-sex marriage].4 The Columbia Electronic Encyclopedia defines marriage as follows: Marriage, socially sanctioned union that reproduces the family.5 The origins of marriage take us back thousands of years. Those of you of faith might consider the first married couple to have been Adam and Eve, which is a good place to start, considering that, like most young couples, they start off in the Garden of Eden, but sometimes it doesn't turn out to be paradise: He doesn't remember to put away his fig leaves and she keeps rearranging the place. Actually, from a solely legal perspective, Adam and Eve may have been the first couple, but they were not married as societies and cultures have come to use that term over the last few thousand years. What we consider marriage, at least from what we can determine from written history, likely began with the ancient Egyptians and/or possibly with the ancient Hebrews.6 In ancient Egypt, marriage was basically a contract. It began as a contract between the husband and the bride's father to properly account for property rights of the wife and the children. Later on, the contract became one between husband and wife. There actually were contracts that were written out and agreed to, including provisions to provide for the well-being of the wife in the event that the husband insisted on a divorce or in the event that a woman failed to give the husband a son, which might also be grounds for divorce. The contract might also contain provisions allowing the husband to take a concubine and have children with that woman, and then have his wife adopt these children as her own. In the ancient Hebrew world, marriage was a social organization. Regulations and arrangements for such marriages as are accounted for in the Old Testament of the Bible are significant in that they provide the basis for social orders by which were later attempted the building of moral systems based upon biblical models. These social structures had a very distinct purpose, and the moral systems the ancient Hebrews were trying to establish were designed to continue the species. There were certain incest taboos which were quite formidable and which required very close attention to the choice of one's marriage partner. The various rules or laws established by different societies and cultures were generally guided by rules of exogamy (the obligation to marry outside a group), while some societies have rules of endogamy (the obligation to marry within a group). As mentioned above, many of the rules dealt with the concept of procreation and the concerns within societies for the problems with procreation resulting from incestuous relationships, hence the well-known incest taboo that applies and is present in virtually all societal groups. Many of these rules and laws establishing which member of a class or classes one could marry and those within a class or clan that one could not marry have foundation in biblical provisions and prohibitions which have significantly influenced our western marriage customs and legislation. I discovered through research that the Catholic Church formerly had a rule preventing the marriage of cousins any closer than the sixth degree (which rule was later modified to the first degree). From an anthropological prospective, the idea that a man and a woman would have a long-term arrangement or relationship helps to create a solid community. If this arrangement is called marriage, it has the implication that the husband and wife have claims over their partners, including material claims, and it results in the children born from the couple as being legitimate heirs to both parents. Though, legally, marriage in most societies has been intended as a long-term or "permanent arrangement" between a man and a woman, divorce is allowed and recognized in most modern societies. Civil unions are also now recognized in many western countries; however, in the western world for nearly 1,000 years, marriage was a religious contract. As a religious contract, the Christian church began to attempt to supervise marriage in the ninth century, when newly wed couples began coming to the church door to have their union blessed by the priest. This eventually led to the church regulating marriage through Canon Law.7 So as one researches the legal aspects of marriage, you find that really it was established as a way to help societies form communities and tribes and structures to allow for the perpetuation of their culture and society. Natural law basically establishes that in order for a species to continue, members of the opposite sex of the same species must come together in order to procreate and carry on the lineage of not only those two members but for the continuation of the whole ancestral lineage of the species. The laws and restrictions against certain types of relations (based on the concerns over the unhealthy results from incestuous relations or relations between creatures of different species) also resulted from the desire of individuals within a society or culture to preserve and protect their ways of life, to carry on beyond their own years, for the benefit of future generations. Our current laws about marriage reflect the values of the majority of our society. In today's day and age, the concept of legal marriage has found new proponents in those individuals who wish to establish rights of nontraditional unions and to try to equate those rights, within our current societal structure, with existing formal unions (traditional marriage between a man and a woman) in order to provide the same type of economic and societal benefits that married couples have enjoyed in western societies for hundreds of years. Whether a society (or if we look at American society as made up of different communities, i.e., states, with populations within each of those states) that wishes to establish nontraditional unions or try to confer rights that have traditionally been extended and provided only for unions between a man and a woman, we can see that the resulting variations within each individual state (community) will result in a virtual hodge-podge of nonuniform and inconsistent laws. Since most laws on marriage are governed by individual state laws, that is where we look to find out the individual nuances that may occur in each state's laws in defining and regulating the concept of marriage. As a result of the pressures of the actions of different states to change the definition of marriage, many states in the United States have passed amendments to their state constitutions to attempt to "legally define and protect" the traditional concept of marriage.8 Federal statutes also deal with marital status and determine federal rights and benefits, and thus the definition of marriage is important under federal law as well. As a result of the pressures resulting from varying state laws creating the expected hodge-podge of definitions of marriage, Congress, in 1996, passed the Federal Defense of Marriage Act (DOMA), which provided that "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." Pub. L.104-199, Sec. 1, 100 Stat. 2419 (Sep. 21, 1996), codified as 1 U.S.C. Section 7 (1997). The U.S. Congress and the President, in an attempt to preserve the culture and the structure of our American society (to continue to thrive and prosper well after those who read this article are still alive), took the steps that were consistent with those taken by the leaders of ancient Egyptian and Hebrew societies. Just as Moses came down from the mountain carrying tablets bearing the Ten Commandments9 which provided important rules for the preservation and structure of early Hebrew society, so are the laws with regards to unions between individuals likewise laws that were important for the initial establishment of sustainable societies and communities. Hence, as much of the legal basis and foundation for our civil laws today can be traced back to the Ten Commandments and the laws in ancient Hebrew society, so too can the laws of establishing traditional marriage, between a man and a woman, likewise be traced back to these ancient societies. In ancient times, groups of people established rules and laws pertaining to the contract of marriage between a man and a woman in order to provide structures to form the foundations for a sustainable society and culture. So, too, in today's American society, is the concept advanced that, in order to continue to preserve and protect the community and the society as a whole, the protection and solemnization of the traditional marriage, between one man and one woman, is imperative. This concept has a sound practical and legal basis: to continue on the species … and hence, to preserve the societal and cultural structure of America. Sumner attorney Klaus O. Snyder has practiced law for 21 years. He is in his second year of chairing the WSBA Legislative Committee, having served on that committee for over 12 years. NOTES
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