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Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples after the US Supreme Court handed down the Obergefell decision, enjoyed a certain degree of celebrity in 2015. The press eagerly documented Davis’s crusade in her jurisdiction as well as her audience with the Pope. Other headlines, however, soon drew attention to Davis’s own complicated familial past.

The post Whatever happened to the same-sex marriage crisis in the US? appeared first on OUPblog.

Hopes for change on the issue in Australia were raised and quickly dashed following September’s leadership spill in the centre-right Liberal Party, in which Malcom Turnbull defeated Prime Minister Tony Abbott, 54 votes to 44. Once seen by advocates of law reform as a champion of marriage equality, the new Prime Minister stated his intention to maintain the coalition’s position on the issue.

The post Marriage equality in Australia: will 2016 bring a change in the law? appeared first on OUPblog.

The Supreme Court’s much-anticipated decision in Obergefell v. Hodges, the same-sex marriage case, is pretty much what most people expected: a 5-4 decision, with Justice Kennedy -- the swing voter between the Court’s four liberals and four conservatives -- writing a majority opinion that strikes down state prohibitions.

The post Incoherence of Court’s dissenters in same-sex marriage ruling appeared first on OUPblog.

During the decades of debates over marriage equality in the United States, opponents centered much of their advocacy on the purported need to maintain marriage as an exclusively heterosexual institution in order to promote the well-being of children. It was therefore fascinating to see the well-being of children play a crucial role in the US Supreme Court’s ruling on the constitutionality of same-sex marriage bans in Obergefell v. Hodges, albeit not in the way opponents of marriage equality hoped.

The post The US Supreme Court, same-sex marriage, and children appeared first on OUPblog.

Like many, I’m still digesting the Supreme Court’s Obergefell decision—not just its text, but its personal and social significance. When I wrote Debating Same-Sex Marriage with Maggie Gallagher (Oxford University Press, 2012), only a handful of states permitted same-sex couples to marry. In the three years since, that handful grew to dozens; last Friday’s decision grows it to all 50. One striking thing about the decision itself is the importance of the definitional question: What is marriage?

One striking thing about the decision itself is the importance of the definitional question: What is marriage?

If the state prohibits same-sex couples from marrying, does it thereby interfere with their liberty, as the majority argues, or does it simply decline to grant them certain benefits? If the latter, is it treating them unequally—and thus violating the Equal Protection clause of the 14th Amendment—by privileging certain citizens without sufficient reason for the distinction? The answer depends on what marriage is. If marriage by definition requires (at least) one man and one woman, then same-sex “marriage” is impossible by definition, and one does not treat people unfairly by denying them something impossible.

The post What marriage (equality) means appeared first on OUPblog.

Today, the people of Ireland will vote in a Referendum to decide whether to include the following new wording in their Constitution: 'Marriage may be contracted in accordance with law by two persons without distinction as to their sex.' This may happen despite the fact that Ireland has a Constitution grounded in Catholic values. Indeed, abortion in Ireland is still constitutionally prohibited. Homosexuality was only decriminalized in 1993, and the option to divorce has only been available since 1995.

The post The Irish referendum on same-sex marriage appeared first on OUPblog.

By Rachel Hope Cleves

Same-sex marriage is having a moment. The accelerating legalization of same-sex marriage at the state level since the Supreme Court’s June 2013 United States v. Windsor decision, striking down the Defense of Marriage Act, has truly been astonishing. Who is not dumbstruck by the spectacle of legal same-sex marriages performed in a state such as Utah, which criminalized same-sex sexual behavior until 2003? The historical whiplash is dizzying.

Daily headlines announcing the latest changes to the legal landscape of same-sex marriage are feeding public curiosity about the history of such unions, and several of the books that top the “Gay & Lesbian History” bestsellers lists focus on same-sex marriage. However, they tend to focus on the immediate antecedents for today’s legal decisions, rather than the historical roots of the issue.

At first consideration, it may seem anachronistic to describe a same-sex union from the early nineteenth century as a “marriage,” but this is the language that several who knew Charity Bryant (1777-1851) and Sylvia Drake (1784-1868) used at the time. As a young boy growing up in western Vermont during the antebellum era, Hiram Harvey Hurlburt Jr. paid a visit to a tailor shop run by the two women to order a suit of clothes made. Noticing something unusual about the women, Hurlburt asked around town and “heard it mentioned as if Miss Bryant and Miss Drake were married to each other.” Looking back from the vantage of old age, Hurlburt chose to include their story in a handwritten memoir he left to his descendants. Like homespun suits, the women were a relic of frontier Vermont, which was receding swiftly into the distance as the twentieth century surged forward. Once upon a time, Hurlburt recalled for his relatives, two women of unusual character could be known around town as a married couple.

There were many who agreed with Hurlburt. Charity Bryant’s sister-in-law, Sarah Snell Bryant, mother to the beloved antebellum poet and journalist William Cullen Bryant, wrote to the women “I consider you both one as man and wife are one.” The poet himself described his Aunt Sylvia as a “fond wife” to her “husband,” his Aunt Charity. And Charity called Sylvia her “helpmeet,” using one of the most common synonyms for wife in early America.

The evidence that Charity and Sylvia possessed a public reputation as a married couple in their small Vermont town, and among the members of their family, goes a long way to constituting evidence that their union should be labeled as a same-sex marriage and seen as a precedent for today’s struggle. In the legal landscape of the early nineteenth century, “common law” marriages could be verified based on two conditions: a couple’s public reputation as being married, and their sharing of a common residence. Charity and Sylvia fit both those criteria. After they met in the spring of 1807, while Charity was paying a visit to Sylvia’s hometown of Weybridge, Vermont, Charity decided to rent a room in town and invited Sylvia to come live with her. The two commenced their lives together on 3 July 1807, a date that the women regarded as their anniversary forever after. The following year they built their own cottage, initially a twelve-by-twelve foot room, which they moved into on the last day of 1808. They lived there together for the rest of their days, until Charity’s death in 1851 from heart disease. Sylvia lasted another eight years in the cottage, before moving into her older brother’s house for the final years of her life.

The grave of Charity Bryant and Sylvia Drake. Photo by Rachel Hope Cleves. Do not use without permission.

Of course, Charity and Sylvia did not fit one very important criterion for marriage, common-law or statutory: that the union be established between a man and a woman. But then, their transgression of this requirement likened their union to other transgressive marriages of the age: those between couples where one or both spouses were already married, or where one or both spouses were beneath the age of consent at the formation of the union, or where one spouse was legally enslaved. In each of these latter circumstances, courts called on to pass judgment over questions of inheritance or the division of property sometimes recognized the validity of marriages even where the spouses could not legally be married according to statute. Since Charity and Sylvia never argued over property in life, and since their inheritors did not challenge the terms of the women’s wills which split their common property between their families, the courts never had a reason to rule on the legality of the women’s marriage. Ultimately, the question of whether their union constituted a legal marriage in its time cannot be resolved.

Regardless, it is vital that the history of marriage include relationships socially understood to be marriages as well as those relationships that fit the legal definition. Although the legality of same-sex marriage has been the subject of focused attention in the past decade (and the past year especially), we cannot forget that marriage exists first and foremost as a social fact. To limit the definition of marriage entirely to those who fit within its statutory terms would, for example, exclude two and a half centuries of enslaved Americans from the history of marriage. It would confuse law’s prescriptive powers with a description of reality, and give statute even more power than its oversized claims.

Awareness of how hard-fought the last decade’s legalization battle has been makes it difficult to believe that during the early national era two same-sex partners could really and truly be married. However, a close look at Charity and Sylvia’s story compells us to re-examine our beliefs. History is not a progress narrative, we all know. What’s only just become possible now may have also been possible at points in the past. Historians of the early American republic might want to ask why Charity and Sylvia’s marriage was possible in the first decades of the nineteenth century, whether it would have been so forty years later or forty years before, and what their marriage can tell us about the possibilities for sexual revolution and women’s independence in the years following the Revolution. For historians of any age, Charity and Sylvia’s story is a reminder of the unexpected openings and foreclosures that make the past so much more interesting than our assumptions.

Rachel Hope Cleves is Associate Professor of History at the University of Victoria. She is author of Charity and Sylvia: A Same-Sex Marriage in Early America.

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By Elvin Lim

In 2004, the Republican’s hot button political issue du jour was same-sex marriage. 11 states approved ballot measures that defined marriage as a union between a man and a woman. Last week, a federal judge struck down California’s Proposition 8 (passed in 2008) because it “fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license.”

However, Republicans politicians are not taking the bait to revisit this hot button political issue, despite Rush Limbaugh’s encouragement. One explanation is that Republican voters are already angry and motivated this year, and they are concerned about the economy and jobs. There is no need for Republicans to exploit a get-the-vote-out issue this year.

But, that is exactly what some Republicans have done, just not on the marriage issue. Instead, prominent Republicans like Senator Lindsay Graham and presidential hopeful Tim Pawlenty are directing their attention this year on repealing the 14th Amendment, and in particular the provision guaranteeing birthright citizenship.

So is it or is it not “the economy, stupid,” for Election 2010? I think it’s about something even bigger than the economy. It’s about the power of the federal government, which increased dramatically with the passage of the 14th Amendment.

Consider that the first sentence of Section 1 of the 14th Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”), which established the priority of national citizenship over state citizenship. While there were references to citizenship in the Constitution of 1789, the Framers did not define the content of citizenship in part because there was little need, at the time, to consider the idea of national citizenship as opposed to state citizenship. The nation as we know it today was not fully developed until the Civil War.

Read in totality, the first Section of the 14th Amendment isn’t so much a grant of birthright citizenship – the content of the first sentence – but a constraint on states’ rights, the point of the second: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” We know this to be historically accurate. Since the 1930s, the “equal protection” and “due process” clauses have been used against state actors to extend the scope and depth of federal governmental powers.

Fast forward to the 2010, and it is no coincidence that almost everything up for political debate today and in November has something to do with the power of federal government versus states’ rights, whether it be Arizona taking it upon itself to write its own immigration policy and the Obama administration insisting that immigration policy is a federal prerogative, or Missouri primary voters rejecting the federal (“Obamacare”) mandate that all individual citizens must buy health insurance, or Californians deciding in Proposition 8 that only marriages between a man and a woman are valid in their state. If the unifying thread in these agitations is the perception of a bloated, out-of-control federal government, it is also worth noting that the major resource for the aggrandizement of the government has been the 14th Amendment.

The Republican Party of 2010 is not the Republican Party of 1868, the year the 14th Amendment was ratified. The GOP, back then, believed in federal preemption of states’ rights. Democrats were the ones who were wary of federal power. The Rep

Dear Betty,

You win.  (Okay, Pete helped.)  Rather nasty trick, there, invoking the Boss's name.  You know I am powerless against the Co-Dictators of the Universe.

My entry to the current Clarity of Night contest is here.  Or you can read it in the postscript.  I keep hoping for one of those magical epiphanies that write themselves, 250 words of such depth and perfection that it reduces Parrish to tears.  Sadly, no such epiphany occurred for this contest.  I will jump cartwheels if only I can stay in the Forties Club (do not even dare to suggest that has anything to do with my age).

I've read but not commented on all the entries.  Some, like this one, are way too profound for my summertime brain.  Some (like Tessa's, and Sarah's are poetry: I stink at appreciating poetry.   

Quite a few of my peeps entered: Merry, Ello, Chris, Aniket, wolfie, Paul, Pete, Parrish, J.C., Precie, Angelique, Dottie, Sandra, Absolute Vanilla, Surly Writer, Whirlochre. Am I well-connected or what? (Yes, I hobnob.)

My current favorites are da Boss's and Sylvia's and Tre'von's.  I think.  At least right now.

Not only is my Clarity entry not to the level I'd hoped, my word counts on the WIPs are lagging.  McKoala's going to claw me soon, I'm afraid.  I know your own poetry and Rumpelstiltskin writing is going well, even if I haven't left comments.  I'm all-knowing that way.

I hope that your home ownership and kitchen remodelling are going well.  You will certainly need to get ahead of things in order to fill the Boss's shoes when he's on leave.  First thing you can do is raise my salary.  Royalty needs bling, you know.

Do give my best to Mrs. Betty and to Zora.

Cordially,
the Queen

PS - I haven't mailed your books yet, but I also haven't forgotten.

PPS - Here's my entry:

Presage
by Aerin Rose


Twenty-two hours from San Francisco to Kathmandu. Four hours until the layover in Hong Kong. Caelin will have finished grading papers by then. She arches her back, stretching, then wiggles her toes, and catches the eye of the flight attendant.

“More, please.” She indicates the travel-sized wineglass. The remaining ruby droplets glisten in the spotlight of her reading lamp. The attendant nods from the galley.

“You realize that’s basically grape juice?” Chloe peers around the headrest as her business class bed reverts to its upright position.

“It’s a second growth Bordeaux and you know it, O Queen Food Critic,” Caelin retorts. “How’d you sleep?”

“Not well. Looks like fourteen bottles of questionable Bordeaux didn’t help you sleep, either.”

“Excited?”

“And nervous. What if she hates us?”

“Sweetheart.” Caelin strokes her wife’s cheek as Chloe unfolds the passport she’s been clutching. A little girl with dark eyes and copper skin gazes at them, unsmiling and unafraid. “She liked us well enough before. Any kid will hate her parents at some point. Let’s just focus on getting her home.”

The flight attendant materializes with the bottle of Château Cos-d'Estournel 1989, which streams like scarlet silk into the stemware.

“Like the orphanage is going to let her come home when you show up drunk,” Chloe teases, leaning close. Caelin smiles into her spouse’s black curls. Points of light play on the surface of her wine, casting images against the back of the seat in a rosy haze.