‘Traditional marriage’ not what most people understand it to be

Feb 16 2013 - 10:22am


As humans, we have a shortsighted view of history. It can be hard to imagine things being different from what we see day in and day out.

Yet, things differ greatly from the past. It can be hard to grasp the realities of what it was like to live in the past, in part because we want to impose our current knowledge on past generations, our current laws and morality on past societies.

I was asked to give a speech to the American Association of University Women the day this column comes out. In preparing for that presentation, I've been researching the history of the law and how it has treated women in the past. I reached a simple conclusion: I'm glad my wife, daughters and granddaughter are living today. The law in the past was not kind to women.

The civil law historically was designed primarily to protect and enforce property interests. For women who could not vote or hold office, this meant that the law was used to maintain control of the property by and for men.

I always cringe when people talk about "traditional marriage" because it shows a complete lack of understanding of what marriage was traditionally, before the mid-1800s.

Historical marriage was about restricting the rights of women and giving them all to the husband. Unmarried women actually had more rights than married women. The English and American common law for most of the 19th century was "coverture," which was defined in Blackstone's Legal Dictionary as follows:

"By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything."

That is traditional marriage.

The current debate today is about the influence of money on the electoral process. Control of the electoral process means control of the Legislature and control of the laws.

It is an important issue, one that should be hotly debated and discussed. Yet, fewer than 100 years ago, within the lifetime of my grandparents, the major debate was on whether women should be allowed to vote. Women did not have a federal constitutional right to vote until passage of the 19th Amendment on Aug. 18, 1920.

Utah was actually ahead of the curve with the territorial government first giving women the right to vote in 1870. Granting women the vote was part of the territory's struggle against the federal government. Women, however, still could not hold political office.

The suffragettes of the day thought that granting Utah women voting rights could bring about the end of polygamy. Brigham Young and others felt that granting the vote would solidify their political power (Brigham was right), so Utah became only the second territory (Wyoming was the first) to give women the right to vote.

In 1887, Congress rescinded Utah women's right to vote through the anti-polygamy Edmund-Tucker Act. The ban lasted until 1895, when Utah became a state and a woman's right to vote and hold office were incorporated into the Utah Constitution.

With women having a voice and a vote, the law has gradually transformed. From not being able to vote fewer than 100 years ago, we have come to the point where three women now sit on the U.S. Supreme Court and two on the Utah Supreme Court.

Women serve in Congress, legislatures and city councils. My granddaughter, who is 3 today, lives not under historical repression, but has a future in which the civil law protects and enforces property and individual rights of everyone, including women.

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or creditcorrection@gmail.com.

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