Friday, March 29, 2013

The last time courts redefined marriage...

All of this talk about the courts redefining marriage got me thinking about the last time that the courts changed the laws of matrimony. It was in the 1980's. The court dissected and destroyed the conventional notions of marriage, and I wonder if any conservatives today would defend their former view of traditional marriage in good conscience? 

Let's start with a little background, at common law, women were not considered legal persons by themselves because they were under the protection and care of their husbands, fathers, barons or lords. Once a father or baron sold a woman off to her husband, the two became a union quite literally in the eyes of the law. If a woman earned wages, they belonged to her husband. If a woman wanted to purchase property or get credit, she would need her husband's approval. Women could not vote, or hold public office. If a man killed his wife, he was guilty of murder. If a woman killed her husband, she was guilty of treason and would be burned alive. It wasn't until the end of the industrial revolution that women were no longer regarded as the property of their male overlords but as separate individual people entitled to rights and privileges as citizens of the good ole' U.S. of A.

But of course, we know all of this and acknowledge that society has changed in this regard, but perhaps something that most people don't know about common law rules for marriage is that, it wasn't until the 1990's, that it became illegal in all 50 states for a husband to rape his wife. Remember, back in the good ole' days, husband and wife were the same person according to law, and one cannot rape one's self. Another distorted justification for this legal excreta was that when a woman acknowledged the contract of marriage, they consented to giving their body to their husband, and that consent carried through into the future until the end of their days. In other words, after you say "I do" you were no longer allowed to say "I don't feel like it tonight honey." This doctrine, called the "Interspousal Exemption," carried through up until the 1980's when legislatures made rape statutes gender neutral, and subsequently, courts started interpreting "rape" differently. 

In Florida, the court unequivocally rejected the interspousal exemption for rape in 1984 - a case named State v. Rider.  After destroying the logic behind the interspousal exemption for rape, the court stated, 

"In abrogating the common law rule that marriage vested the ownership of a wife's property in her husband, a court must interpret the law in light of changing concepts, reason and good conscience and 'can no longer interpret the law from the back of an ass; the process is so slow that it overlooks factors that require a different interpretation today from what might have been required yesterday,"

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