When ‘Redefining Marriage’ Meant That Women Had To Be Treated Like Human Beings

by Ian Millhiser, Posted on October 7, 2014 at 9:50 am Updated: October 7, 2014 at 10:06 am

“The very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.”
-Sir William Blackstone, 1765

On Monday, the Supreme Court brought the legal battle over marriage equality just inches from a conclusion. By refusing to review several court decisions holding that the Constitution requires gay couples to be treated the same way as straight ones, the justices effectively increased the number of states where same sex marriage is legal to 30. This is the way marriage discrimination ends, not with a bang, but a whimper.

Yet, while total victory for the forces of marriage equality now seems inevitable, supporters of discrimination are unlikely to give up without one final fight. Nor should there be any doubt how opponents of equality plan to defend what remains of marriage discrimination. “[T]he ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a ‘same-sex marriage,’” according to an opinion by Judge Paul Niemeyer, one of just three federal judges who concluded that marriage discrimination is permissible under the Constitution. When gay people marry, Niemeyer’s argument presumes, they form a fundamentally different bond than the one that exists in a straight couple, and thus it is permissible for the law to treat same-sex couples differently because their marriages are entirely unlike opposite-sex couples’ marriages.