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The Confederate Lawyer
August 26, 2010

A Federal Judge Ignores Truth
Part II: He Rewrites History

by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY — In an earlier column, I described how Judge Vaughn R. Walker took sex out of marriage in order to hold that requiring spouses to be of the opposite sex unconstitutionally denied both a fundamental right and the equal protection of the laws. In the process, he made a series of findings of fact about history that are simply false.

He concluded that marriage was shaped by the requirement that the spouses be of the same race in order to ensure white dominance and by the requirement that spouses be of the opposite sex in order to ensure male dominance. He found, however that “such restrictions were never part of the historical core of the institution of marriage.” Such an astounding conclusion is only possible with a truly bizarre view of history.

Before proceeding to an examination of the requirement that spouses be of opposite sexes, Judge Walker examined the history of racial restrictions in marriage laws. He began by saying that slaves “lacked the legal capacity to consent and were thus unable to marry.” This is false. In fact, 52 percent of the Episcopalian marriages in the South in the 1840s and 1850s were between slaves. The overwhelming majority of slave marriages lasted the lifetime of the spouses.

From this false starting point, the judge cited arguments that prohibitions on interracial marriage were “God’s plan” and that interracial marriage could lead to equality, but he never even touched on the bad sociology and eugenics that went into such laws.

The judge then stated that under the old English Common Law of coverture, the woman’s “legal and economic identity” was taken over by the husband. This even contradicts the testimony the judge cites in support of it. Coverture was a doctrine under which the husband was the protector of his wife and was responsible for her conduct.

At Common Law (except in the case of a female sovereign) the husband had certain rights. He could manage, but not sell, the wife’s land, heirlooms, and chattels real, but he had to leave them intact to her or her heirs when he died, although he could postpone this until an heir’s 21st birthday. He could sell her other property if he chose to take possession of it. In exchange, she acquired extensive rights to his land for the rest of her life if he died first.

The judge confused coverture with the duty of the wife to obey the husband. Blackstone wrote in 1765 that the right of the husband to discipline his wife physically had been abolished but that the lower ranks of the common people still believed it existed; in the case of gross misbehavior, the courts sometimes tolerated it.

In the 21st century, the main case in which wives have had to obey their husbands has been in the choice of where to live. For well over a generation, this last vestige of a husband’s authority has vanished. Even though the law once presumed that a wife would obey her husband, it did not prohibit the spouses from agreeing to some other arrangement.

The judge’s coupling of the former requirement that spouses be of the same race with the disputed requirement that they be of opposite sexes is supported by nothing more than the judge’s assertion that both are intended to thwart equality.

The judge never mentioned the fact that marriage existed for thousands of years before England decided to regulate the interests of husbands and wives in each other’s land. He completely discounted the testimony that throughout history, even in cases of polygamy, marriage was always between persons of the opposite sex.

The judge piled historical error on historical error in order to reach his conclusion that the requirement that spouses be of the opposite sex is nothing but a vestige of an ancient scheme to oppress women. The facts never seem to have mattered to him.

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The Confederate Lawyer column is copyright © 2010 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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