Op-ed: So which ‘traditional marriage’ do people want to save?

Social conservatives who hope the Supreme Court will "save traditional marriage" owe their fellow citizens an explanation: Exactly what "traditional marriage" do they want the high court to "defend"?

LGBT folks are especially entitled to such clarity, as they and their children are the ones who — the defenders of "traditional" marriage claim — must live their lives bereft of the benefits, protections and dignity the rest of us take for granted in being married.

However, the form of marriage exemplified by a romantic union of one man and one woman is a comparatively new "tradition." The "traditional" American marriage of just a couple of generations ago was not something that most contemporary Americans of either sex would admire. Until the passage of Married Women's Acts in 1898, a married woman's property was controlled by her husband, even property she brought into the marriage. Married women were legally incompetent to transfer assets or make binding contracts for themselves.

This was preceded by an even older tradition, "coveture," under which a woman, once married, lost her separate identity. The wife was considered to be her husband's property, and all she owned was under his control. He could dispose of his wife's property and could command her labor, even her body itself. Until the 20th Century, in most places in America, a husband could not be convicted of raping his wife. At common law, consent to sex was considered given in the act of marriage, could not be later withdrawn, and could be compelled by the husband, by force. The husband also had the right to beat his wife — "chastisement" being traditional as well — as long as no permanent injury resulted.

From the beginnings of Western Christianity until the beginning of the Industrial Age, marriage was seen as a purely religious act, and the church married and granted divorces and annulments, without involvement of the state. Civil marriages and the licensing and recording of marriages by the government only began in the mid-19th Century. Though never common, in the Middle Ages, both the western and eastern churches conducted rites for the union of two men. These liturgies included the couple holding hands before the altar and the congregation, exchanging vows which were then blessed, followed by service of the Eucharist, and a feast for the guests; a marriage in all but name. Of course, that tradition was abandoned, too, until recently revived in a number of churches.

Race has also played a role in marriage that is apparently no longer "traditional." Until after the Civil War, slaves in the states of the old Confederacy were forbidden to enter into legal marriage at all. Marriage between partners of different races was condemned by many as a crime against God and nature, and was illegal in some (but not all) of the United States until 1967.

Even older marriage traditions made the consent of one or both of the parties immaterial. Until the last 200 years or so, marriage in Western culture was not seen as a means of personal or emotional fulfillment, but was intended to secure social, familial or economic advantages. The idea that the couple would have anything to say in the matter would have been considered radical. Arranged marriage prevails in much of the world today, as does polygamy, especially in the Islamic world, along with other quite traditional marriages forms such as temporary marriage and concubinage. Our own state was settled in the mid-19th Century by people who practiced polygamy, and thousands of polygamous families still live in the Mountain West, even though the practice has been explicitly illegal for more than 150 years.

In fact, there has never been a universally accepted definition of marriage, either in America or the world at large. Customs and traditions change, and no tradition is eternal. Sometimes traditions change very quickly, and they don't tend to last very long once people conclude they have outworn their usefulness, or were just plain wrong all along.

Rick Knuth is a Salt Lake City attorney.