In a statement endorsing a constitutional amendment to ban same sex marriage, President Bush stated: "Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society."

As a historian and an advocate of gay rights I am puzzled by this statement. There have been numerous changes to the institution of marriage throughout history. Would President Bush and his allies turn back the clock to reverse those changes also because they "severed" marriage from its roots?

What is “legal” is not necessarily “moral” for all people. We live in a pluralistic society with long constitutional tradition of separating church and state. For example, both Judaism and Islam forbid eating pork, yet we do not outlaw it. The Old Testament penalty for adultery,[i] or cursing one’s parents was death.[ii] In the New Testament Jesus equated remarriage after divorce with adultery.[iii] As a society, we neither execute children for cursing their parents nor prohibit divorced folks from remarrying.

Marriage within a religious tradition and as a celebration of a community of faith with friends and family, is not the same as marriage as a legal institution. You cannot be legally married without a marriage license, but you can be legally married by a justice of the peace. Those of us who support the rights of gays and lesbians to marry do not seek to force any religious denomination to perform same-sex marriages. We only want the same legal protections and rights for our friends, our relatives, or ourselves that heterosexual couples enjoy.

Marriage as a legal institution has changed considerably in Western Europe and the United States. Throughout much of our history, marriage was often "traditionally" defined as a union of two people of the same religion, or the same race, or as a relationship in which the female was simply the property of the male. With the rise of individualism and equality of all individuals, those "traditional" elements have changed. Now we emphasize that marriage is matter of personal choice of each of the individuals involved, not their parents, their church, or their government. Let me give you some examples of how the "traditional" definition of marriage has changed.

·     From the 5^th to the 14^th centuries, the Roman Catholic Church conducted special ceremonies to bless same-sex unions that were almost identical for those to bless heterosexual unions.  At the very least, these were spiritual, if not sexual, unions.[iv]

·      In 1076 Pope Alexander II issued a decree prohibiting marriages between couples who were more closely related than 6^th cousins.[v]

·     In the 16^th century servants and day laborers were not allowed to marry in Bavaria and Austria unless they had the permission of local political authorities.  This law was not finally abolished in Austria until 1921.[vi]

·     From the 1690s until the 1870s “wife sale” a type of public self-divorce in which a woman with a rope around her neck was “sold” by husband to another man was common in rural and small-town England.[vii]

·     Marriage was strictly a civil and not an ecclesiastical ceremony for the Puritans in Massachusetts Bay from 1630 until 1686.[viii] They explicitly wanted marriage as a civil ceremony, not a church sacrament as it was in England.

·     In the seventeenth century, the Pilgrims outlawed courtship of a daughter or a female servant unless consent was first obtained from parents or master.[ix]

·     Until 1662 there was no penalty for interracial marriages in any of the British colonies in North America.  In 1662 Virginia doubled the fine for fornication between interracial couples.  In 1664 Maryland became the first colony to ban interracial marriages.  By 1750 all southern colonies, plus Massachusetts and Pennsylvania outlawed interracial marriages.[x]

·     Under English common law, and in all American colonies and states until the middle of the 19^th century, married women had no legal standing.  They could not own property, sign contracts, or legally control any wages they might earn.[xi]

·     In 1848 New York became the first state to pass a Married Woman’s Property Act, guaranteeing the right of married women to own property.[xii] 

·     Throughout most of the 19^th century, the minimum age of consent for sexual intercourse in most American states was 10 years old.  In Delaware it was only 7 years old.[xiii]

·     In 1913 southern congressmen introduced a proposed constitutional amendment to outlaw interracial marriages because Jack Johnson, the Black heavyweight boxing champion had married a white woman the previous year.[xiv]

·     As late as 1930, twelve states allowed boys as young as 14 and girls as young as 12 to marry (with parental consent).[xv]

·     As late as 1940 married women were not allowed to make a legal contract in twelve states.[xvi]

·     In 1967 the U.S. Supreme Court struck down state laws banning interracial marriage (usually called anti-miscegenation laws) in Loving v. Virginia. As a result of the decision, Virginia and fifteen other states had their anti-miscegenation laws declared unconstitutional. Those states were: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia. In the fifteen years prior to the decision, fourteen states had repealed their anti-miscegenation laws.  Those fourteen states were: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.[xvii]

·     In 1978 New York became the first state to outlaw rape in marriage.  By 1990 only a total of ten states outlawed rape in marriage.  In thirty-six states rape in marriage was a crime only in certain circumstances. In four states, rape in marriage was never a crime.[xviii]

These examples, and there are more, clearly document that "traditional" marriage has not been an unchanging institution with unchanging definitions of who can marry and under what circumstances.