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
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
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.
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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