One of the conservative talking points in opposition to same-sex marriage is that the courts shouldn’t redefine marriage. They claim it has always been between a man and a woman. The problem is marriage has been redefined before, several times. A recent redefinition even contradicts some religious conservative beliefs.
Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles. According to Sir William Blackstone, an eighteenth century English jurist whose works are still frequently cited today to explain the common law principles we inherited from our former colonial rulers, “[t]he 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.” As late as 1887, fully one third of the states did not permit women to control their earnings. And married women could not even withhold consent to sex with their husband until shockingly recently.
Under the common law, “by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” and this consent was something “she cannot retract.” The first successful prosecution in the United States of a husband who raped his wife did not occur until the late 1970s.
So American marriage law, and the English law that it was derived from, presumed that the wife was both financially and sexual subservient to the husband. In a world where marriage is defined as a union between a dominant man and a submissive woman, each fulfilling unique gender roles, the case for marriage discrimination is clear. How can both the dominant male role and the submissive female role be carried out in a marital union if the union does not include one man and one woman? This, according to Justice Ginsburg, is why marriage was understood to exclude same-sex couples for so many centuries.
When marriage was redefined to give women an equal voice, religion didn’t implode or go away.
When it was redefined to allow a mixed race couple, the country didn’t become full of atheists.
Clergy are more than happy to marry a couple even if they don’t plan to or can’t have children which contradicts another religious conservative talking point.
As stated in a previous court ruling overturning California’s Proposition 8 back in 2010:
Moral disapproval alone is an improper basis on which to deny rights…