Professor John Witte, Jr

DATE April 15, 2004 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Nancy Cott discusses the history of marriage in America
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

America is divided over whether gay and lesbian couples should have the right
to marry. In the past few months the Massachusetts Supreme Court ruled in
favor of gay marriage, and gay couples were married in the city halls of San
Francisco, New Paltz, New York, and Portland, Oregon, until gay marriages were
halted. Opponents of gay marriage are advocating a constitutional amendment,
which President Bush supports, that would define marriage as an institution
for heterosexual couples only.

Today we're going to look at the history of marriage in America and see what
clues it might offer about gay marriage and how gay marriage would affect the
future of the institution. My first guest is Nancy Cott, author of "Public
Vows: A History of Marriage and the Nation." She's a professor of history at
Harvard University.

As a legal historian who has written about the history of marriage, do you
support the legalization of gay marriage?

Professor NANCY COTT (Harvard; Author, "Public Vows: A History of Marriage
and the Nation"): I think that it is the next phase of evolution of marriage
in our society. Yes, I think that marriage has been developing toward an
institution that is a union of two people to establish a secure household.
And the parity between those two individuals has become more of a feature of
the institution itself. The gender roles of the two members have become less
distinguishable, the one from the other, in the past, say, 50 years. And I
think equality and privacy between the partners have become the leading
features of the institution, as well as the security of their commitment to
each other. So in that sense I think marriage between same-sex couples--it's
following right along that line and is undoubtedly to come.

GROSS: People who oppose gay marriage say it's always been about one man and
one woman and that should be unchangeable.

Prof. COTT: Within religiously understood Christian marriage, that is
certainly the case. But, more importantly, marriage in the United States has
been authorized civilly. That is, it is a civil, secular institution in terms
of its force, its authority, its legality. That is civil, not religious. The
religious attributes of marriage are voluntary on the part of the couple. And
the people who are most committed to the impossibility of same-sex marriage
are committed in that way from a religious point of view. But their attitude,
their sense of the institution is really an optional one. It's not one that's
built into the law of marriage or the authority of the institution, why it has
force legally. That rests with the state and has always in the United States;
that is, since the colonies, in fact. But if we start with the United States
itself, with the post-1776 nation, it's unquestionably true.

GROSS: Let's look at some of the ways the marriage laws have changed over the
years. Let's start with the early marriage laws in the United States. What
did those early marriage laws say about what marriage was and what the role of
the husband and the wife within marriage would be?

Prof. COTT: Looking at early marriage laws in the American colonies and in
the early states, perhaps the most important thing that needs to be said is
much of the law of marriage was an unwritten law. It was part of the
so-called common law of England, which had never been written down. So that
the husband's obligation to support his wife, for instance, or the wife's
obligation to obey her husband, to turn her property over to him, to work for
him--in other words, her labor belonged to him, it was not her's to contract
independently--those things were not necessarily written down in a given
state's laws. They needn't be to be enforced in the early United States
because those understandings of marriage were part of common law, and if any
case came to court, any objection were raised, it would be common law that was
cited.

GROSS: And when did that start to change?

Prof. COTT: It started to change in the middle of the 19th century, in part
because of women's rights advocates arguing that this demise of the wife's
legal individuality was unjust and unreal, didn't represent what women were
really doing and, in part because of a slightly more complicated understanding
by legislators of what families' interests were. The first way these laws
changed was through what were called married women's property laws, which
allowed a wife to keep possession of property she might have come into the
marriage with, keep it in her own name or perhaps gain property during the
marriage and keep it in her own name.

A major reason why such laws were passed were not what we might see today as
feminist reasons; that is, to preserve the wife's individuality. It was
really to preserve some portion of the family's sustenance and household goods
against creditors, who might be seeking to collect against the husband so that
there was a community of interest in preserving some property in the wife's
name.

GROSS: Why were marriage laws state laws? Why wasn't there just one federal
set of marriage laws that all the states followed?

Prof. COTT: Marriage laws were seen as part of the state's police power,
which is the power to protect and guard its population's health, safety and
welfare. The same reason that states have authority over local schools in the
United States jurisprudence is the reason they have the authority over
marriage. It's considered a domestic interest, an extension of the state's
desire and obligation to protect its population in a very closed sense. And
the states early on were very jealous of those powers, did not want to cede
those powers to the federal government.

The domestic relations included not only husband and wife. They included
master and servant and master and slave. And certainly in the early United
States, where the slave-holding states had very different ideas about the
household, who should be free in it, who should be enslaved, who should have
the power over others, the states were not likely to want a uniform law when
there was the diversities of opinion of how domestic relations writ law should
be organized.

GROSS: Gay and lesbian couples are not legally allowed to marry now, although
that is certainly being challenged in several states. What are some of the
other groups of people historically that were not allowed to marry during
certain parts of American history?

Prof. COTT: Well, the most stunning things about marriage prohibition in
American history have to do with race. And this both existed during the time
of slavery in the United States and postdated it. Slaves were not able to
marry legally. That was based on their condition as slaves, not literally on
their race. As slaves, they did not have the power to consent. They had no
civil rights because their masters had all rights over them. And the denial
of legal marriage to them was one of those deprivations, one of those ways in
which they had no civil rights.

But quite apart from slavery, there were laws that go back as far as the 1660s
and the 1680s in the Chesapeake colonies of Virginia and Maryland that made it
illegal, impossible, null for a white person to marry a Negro or mulatto;
those were the terms used at the time and used all the way up through the
early-20th century. These laws were designed by white legislators and upheld
by white judges to preserve what they saw as racial purity. And there were
laws that also prevented a white person from having a legal marriage to a
Native American in a number of states, about eight or 10 states. And then
certain Western states, I think it was as many as 15 Western states at some
time, had laws that made marriage between a white and a Chinese or a Japanese
or another Asian of some description illegal or criminal.

GROSS: Now how long did it take until all of these laws banning interracial
marriages were off the books?

Prof. COTT: It was in 1967 in a US Supreme Court decision called Loving vs.
Virginia. Loving was ironically, fittingly, the name of a couple who
challenged the law in Virginia. In 1967, the Supreme Court, using an equal
protection argument, said that these laws violated constitutional rights of
Americans because marriage was a fundamental right; the right to choose one's
partner was a fundamental right. And at that point the Supreme Court said
the argument from symmetry, a black cannot marry a white, true, but a white
cannot marry a black. So no racial discrimination is implied here. But that
argument was specious because the purpose of the law clearly was to maintain
white supremacy; that the law had a racially discriminatory purpose and
therefore couldn't be regarded as operating symmetrically.

GROSS: My guest is Nancy Cott. She's a professor of history at Harvard
University and the author of "Public Vows: A History of Marriage and the
Nation." We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is Nancy Cott. She's a professor
of history at Harvard University and author of the book "Public Vows: A
History of Marriage and the Nation." And in the light of gay and lesbian
couples asking for the legal right to marry, we're looking at some of the many
ways that marriage laws have changed over the centuries in the United States.

For people too young to remember this, can you talk a little bit about what it
took to get a divorce before the no-fault divorce era?

Prof. COTT: I think many people are surprised to hear how long divorce has
been possible in the United States. This country was in the vanguard in
granting divorce. Most states had some form of divorce shortly after the
American Revolution. But it was difficult to get a divorce until maybe the
mid-19th century when more grounds for divorce were mentioned. Initially the
only reason one could get a divorce was adultery or desertion, if one partner
simply left. But for a person to get a divorce traditionally, the innocent
party had to prove that the guilty party had committed an infraction of or
just failed to fulfill an obligation of the marriage agreement.

And in certain states--and New York was prime here--the grounds for divorce
were so very minimal. New York state was one of the most conservative, and in
New York, up to the 1950s, the only grounds for divorce was adultery, so that
couples who wanted to divorce and really had come to the conclusion that their
marriage had fallen apart, both of them wanted a divorce, they were setting up
or colluding--as the verb was, colluding--framing a scene of adultery by one
partner with a witness seeing it so they could then get a lawyer, go to court,
say, `The grounds have been met, one party was guilty, we want a divorce.'

And it was lawyers, really, and the American Bar Association who felt this was
a very bad scene, so that collusion to fulfill the law, so really open
flouting of the law was what it was taking to cause divorce, and that, in
fact, divorce for irretrievable breakdown of a marriage ought to be possible.
And it was a move from the legal community most of all that led toward the
institution of no-fault divorce. Between the mid-1960s and the early-1980s
almost all the industrialized world moved toward a no-fault divorce setup.

GROSS: Now that the issue of gay marriage is coming up state by state, in
addition to federal legislation and possibly a constitutional amendment, I'm
wondering how states have historically honored other states' marriages and
divorces.

Prof. COTT: Traditionally there is a law regarding marriage that is not only
national here in the United States but international. It's part of
international law that a marriage valid where it is celebrated is valid
throughout. Now that international law is, of course, observed where it does
not conflict with the public policy of a given state authority. So that the
United States, a country of immigration, has had an ambiguous position on that
international law. For instance, the United States would not honor polygamist
marriages in this country if polygamistly married individuals came here as
immigrants. Their marriages would be considered invalid, as against the
United States' public policy.

And similarly between the states, states honor marriages made elsewhere unless
they fly in the face of articulated public policy on the part of a state. So
that this was quite operative with regard to these anti-miscegenation laws
that we've discussed before. A couple living in Virginia, where they could
not marry, one being white, one being black, they went to Massachusetts and
got married. They could not come back to Virginia and live again. And so
there is this one accepted exception to the general state policy of giving,
not only full faith and credit to the states' other laws of other sorts, but
giving credence to a marriage performed elsewhere in general, but not if it's
against the state's articulated public policy.

GROSS: The 1996 Defense of Marriage Act defined marriage as a contract
between one man and one woman, but also provided that no state would be
required to recognize a same-sex marriage that was performed in another state.
So outside of the anti-miscegenation laws, is this the first time that there
was a marriage law saying that you didn't have to honor the marriage in
another state?

Prof. COTT: One thing I can say for sure is that this is the first time
there's been a federal marriage law of this range and, I mean, scope because
while the federal government has been highly involved in marriage, it's been
highly involved in indirect ways through things that it does have power over,
such as immigration or interstate commerce or federal income tax, citizenship
laws. There hasn't been the possibility for the federal government to
legislate on marriage because it has been a matter of state prerogative.
That's part of federalism. So I do think that the Defense of Marriage Act is
unprecedented in that regard.

From another point of view, it just states as positive doctrine something that
has been part of an unwritten law till now, and that is the exception of the
obligation of a state to enforce another state's law, the exception on the
basis of something that flies in the face of a state's own public policy.

GROSS: Now some people advocate civil unions as an alternative to same-sex
marriage. That way the marriage laws aren't changed. And the proponents of
this say that civil unions are the same as marriage except in name. Are there
certain rights that a couple who is legally bound through a civil union won't
have that a couple who is bound through a marriage would have?

Prof. COTT: I think there are two important levels of distinguishing civil
unions from marriages. First of all, just the legal level. So long as civil
unions are granted by states, as they certainly are at present and foreseeably
will be, a civil union at the state level, like the setup Vermont has, can
grant all the rights, benefits, obligations and details of marriage to a
couple within the state but can say absolutely nothing about federal rights,
benefits, privileges, obligations. And those federal details of marriage are
hugely extensive. There are over a thousand places in the corpus of federal
law where marriage is implicated. And these include some of the major issues,
like citizenship, Social Security, federal income tax, immigration and so on.
A civil union-united couple has none of those prerogatives of marriage. So
there's an immense legal disparity, in fact.

Then there's a separate level, which is the level of more symbolic status and
prestige. And the attributes of civil rights that are not literal cannot be
written down, and that is that marriage has become over centuries a privileged
status, a privileged self-understanding and way of being recognized in the
community so that one couple who has civil union and another who is married,
they're distinct in this more impalpable and symbolic way.

GROSS: You're a historian. Do you feel like history is about to be made one
way or another, either in the legalization of same-sex marriage or in the
official illegalization of it?

Prof. COTT: Yes, I think it's a very important point to mark in the evolution
of marriage. I do think marriage has always been a changing institution, and
one could point to earlier watersheds. But perhaps it's none quite so
explicit as this particular turning point.

GROSS: And as a historian, are you taking an activist role on this in any
way?

Prof. COTT: Well, I don't consider myself an advocate. I consider myself an
informed participant. And it's been great fun for me to see how important
history is to this turn of events; that people are unfortunately rather
ignorant about the history of marriage. I'm happy to fill them in because
it's important to understand where to go in the future to know where marriage
has been in the past, particularly to understand that it isn't one thing; it
doesn't have a static history and all of a sudden it's being asked to change.
Rather, it's been a highly evolving institution. It's one of the reasons we
still have marriage and still value it. It only would be with us still if it
had changed.

GROSS: Well, Nancy Cott, thank you so much for talking with us.

Prof. COTT: You're very welcome.

GROSS: Nancy Cott is a professor of history at Harvard University. She's the
author of "Public Vows: A History of Marriage and the Nation."

We'll hear a different point of view on how history should inform the debate
on gay marriage in the second half of the show. I'm Terry Gross, and this is
FRESH AIR.

(Soundbite of music)

(Announcements)

(Soundbite of music)

GROSS: Coming up, more on the history of marriage and how it may inform the
debate about gay marriage. We talk with John Witte, author of "From Sacrament
to Contract: Marriage, Religion, and Law in Western Tradition." He directs
the Law and Religion Program at Emory University.

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Interview: John Witte discusses his conclusions about gay marriage
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Today we're hearing from two historians who have written about the history of
marriage and have arrived at different conclusions about gay marriage.
Earlier we heard from Nancy Cott, who thinks that gay marriage fits with the
increasingly egalitarian direction that marriage has been heading in. John
Witte has a different point of view. He thinks the culture isn't ready yet
for a gay marriage. Witte is the author of "From Sacrament to Contract:
Marriage, Religion, and the Law in Western Tradition," and he directs their
Law and Religion Program at Emory University.

What are your thoughts on the legalization of gay marriage? Building on your
knowledge of history and religion, do you think it's appropriate to do that
now?

Mr. JOHN WITTE (Emory University; Author, "From Sacrament to Contract:
Marriage, Religion, and the Law in Western Tradition"): The answer to that
question turns on where you set your historical book ends. If the relevant
history that you're interested in is the last 25 years, I think a very strong
case for same-sex marriage could be made out. It's the natural next step in
the constitutional protection of sexual liberty and sexual privacy in this
country. If the relevant history is the last 250 years or the last 2,500
years, it's much more difficult to get normative traction or sanction for
same-sex marriages. The tradition of the last 250 years and, certainly, the
last 2,500 years teaches that marriage is a heterosexual, monogamous union,
presumptively for life, and at the same time criminalizes acts of sodomy and
buggery and other acts which are endemic to the expression of same-sex desire.

GROSS: But if we discounted the last 25 years and just looked at, say, the
last 250 or looked further back, then women would not have equal rights within
a marriage either, and it would sure be difficult to get a divorce. So, I
mean, there's so much we take for granted now in modern laws of marriage and
divorce that are only, you know, dating back in concept to, say, you know, the
'60s or the '70s.

Mr. WITTE: That's true, although many of the changes that were made with
respect, for example, to women's rights to divorce and to child custody and to
marital property are actually the products of centuries-long traditions rather
than the last 25 years. The notion of divorce that both men and women can
enjoy was introduced for the first time in the West in the 16th century, and
the American colonists were heirs to that tradition. And there were strong
theological warrants for that understanding and protection of divorce for both
couples. The notion of marital property has roots in the 17th century and
becomes increasingly real and common-law jurisdictions in the course of the
18th and early 19th centuries. And it was canonized and codified in a number
of important marriage women property acts in the 1880s and 1890s. The
relevant time window for dealing with some of these questions is not the last
25 years only. I think it's a wider compass of time and set of normative
institutions that have to be considered.

GROSS: A historian named John Boswell, who's written a lot about gay history,
has, you know, published evidence that there really is more of a historic
precedent for gay unions.

Mr. WITTE: Yes, he has. And he has stimulated a veritable cottage industry
of scholarship in the last 15 years since his big book on the subject. I
think what that scholarship has shown is that the tradition is not
eunibicle(ph) on issues of heterosexual monogamy being the only norm that's
protected. There are liturgies, there are occasional cases, there are
instances of households that are recognized and protected at law. And there
are a number of examples in literature, religious and non-religious literature
alike, where same-sex desire is accepted, tolerated, sometimes championed and
celebrated. I think that has helped complicate the historical story, but I
think it has not changed the reality that the overwhelming normative position
of the Western tradition pre- and post-Christianity is that marriage is
restricted to heterosexual, monogamous union. And the attempts by some to
rewrite history by anecdote or to string together a whole series of
aberrations, in my view, doesn't avail much.

GROSS: So are you saying that if you look at the big picture of history and
if most of history doesn't really have much precedent for legalized gay union,
then that's an argument against legalizing it now? Are you saying that?

Mr. WITTE: I'm not saying that. I'm saying that the relevant history we're
talking about is the Western Christian history; I need to emphasize that
because I can't speak to history beyond the Christian West. But I do think
that because we are a society and a state dedicated to the rule of law and
because respect for history and precedent is an important part of what it
means to be dedicated to the rule of law, history has to be relevant to the
inquiry. And if we're going to go through the exercise of reconsidering a
millennium-long understanding of what the marital institution is, we need to
do that with trepidation, with explanation and full ventilation of what's at
stake on both sides.

And the conclusion might be there are ways of reconstructing the lessons of
the tradition in light of contemporary understandings of equality and liberty
and in light of contemporary appreciation for the contributions that same-sex
couples and parties make to the society that would allow us to do that
reconstruction. I'm saying that history is an important part of it, and
history, unless selectively rewritten, does not condone same-sex marriage.

GROSS: Now this raises an interesting question, which is: When history and
liberty, when history and freedom or when history and civil rights come into
conflict, which wins? For example, there have always been slave historically.
Is that an argument against having freed the slaves during the Civil War?
Women were historically in Western culture subservient to men. Was that an
argument against giving women a vote or giving women equal rights to men?
Historically there's been racism. Does that mean we should have kept the
miscegenation laws and made it illegal for a black person and a white person
to marry?

Mr. WITTE: I think those are exactly the questions that have to be asked.
And the question is whether our current understand and devotion to liberty
requires us to rethink what have been time-honored institutions in the West.
And that was what I was trying to argue a moment ago about the necessity of
reconstruction. I think we have to go through the hard exercise of thinking
whether our current understandings of liberty, as set forth in the
Constitution and as, more importantly, culturally accepted, now require us to
give recognition to same-sex couples beyond the recognition already enjoyed in
the civil associations and the sexual privacy and liberty norms that currently
govern them.

GROSS: Historically, do you think there's an argument to be made for going
slow as opposed to making a larger change?

Mr. WITTE: I think there is a strong historical argument. If you look at the
kind of cultural fallout that attached to Roe v. Wade, whose decision I
actually endorse strongly, I don't think we did the important cultural
homework necessary before we made a sweeping constitutional change in the Roe
v. Wade decision. Domestic relations issues, in general, marriage questions
in particular, are state rather than federal, and they tend to be common law
rather than constitutional in their principal legal pedigree. And I think
what's important is in order to avoid the kind of cultural backlash that
attached to the Roe v. Wade decision and its constitutional progeny by the
Supreme Court--to avoid that in this case of same-sex marriage, it's, in my
view, better to spend the time to do the hard cultural work of experimenting
with gay and lesbian life; of recognizing that there are children that come
from gay and lesbian households that participate in the community just as
actively as their heterosexual peers; to do the kind of long reflection of our
history, of our canonical texts that's necessary to think through whether what
we used to understand to be the basic goods of marriage can be recalibrated to
include within that same-sex marriage; and, also, to go through the careful
sifting as to whether the arguments that are currently being deployed for
same-sex marriage have a stopping point and if they don't have a stopping
point, whether we can, as a community, contemplate that arguments and due
process and equal protection and sexual privacy can equally strongly be
applied to the protection of polygamist unions, incestuous unions and others.

I'm not making an argument that if you break this one moral cord that protects
heterosexual monogamy, you invariably are going to see the society unravel
into a whole gaggle of sexual prurience, which some conservative critics
argue. What I am saying, though, is that the kind of blunt equal protection
and due process arguments that are currently being proffered don't have a
natural limitation within them to preclude good-faith arguments, sometimes
informed by the free exercise clause of the First Amendment for, at
minimum, polygamist unions. And unless we're ready to contemplate that as an
appropriate next step in the next generation, I think we have to be careful
about rushing to precipitous constitutional change. To my mind, it's much
safer to do this gradually; much safer to let the gains already made by
same-sex parties, individuals and couples, to soak into the cultural soil to
become part of a community's reflexes, so it's not a superimposed
constitutional change but a change that bubbles up, first, from bedrooms and
living rooms around the country, then from local communities, then from
states. And, ultimately, the constitutional act is an act simply of
codification of what has become culturally licit rather than the Constitution
making the kind of precipitous change which the culture is not ready yet for,

GROSS: So you're arguing that we need to have cultural change, that gays need
to be assimilated into the culture, before we actually change the law to make
gay marriage legal. But can't you argue that's already happened? That ever
since the gay liberation movement started, oh, about 35 years ago, that that's
been happening? I mean, look at Vice President Cheney's daughter. She's a
lesbian, she's out of the closet, and she was openly campaigning for him. I
mean, that's probably a clue about (laughs) how...

Mr. WITTE: Exactly.

GROSS: ...gay people have been assimilated into the culture. So, I mean, you
could argue, `Well, what else are you waiting for?'

Mr. WITTE: The more daughters of Dick Cheney's and the more sons of Baptist
ministers and the more children of Orthodox Jewish rabbis and Muslim imams
experience the reality that same-sex desire and expression and association is
a natural part of life, the easier it's going to be for society to accept
same-sex couples and to then accord them a series of statutory common law and
eventually constitutional benefits. The danger that I see--and that's why I
(unintelligible) Roe v. Wade earlier--is that to declare victory or this
liberty provision prematurely is going to trigger a conservative cultural
backlash that actually is going to set the movement back at law.

GROSS: But look at the American civil rights movement. I mean, you know, it
had been--What?--a hundred years since the slaves were freed, and
African-Americans still didn't have equal rights. There was still legal
segregation in the South. And if they had continued to wait patiently for the
culture to change, if there hadn't been civil disobedience and a more
confrontational movement that followed on the heels of it, who knows if we'd
still have legal segregation or not?

Mr. WITTE: And I think that's where those that are participating actively in
same-sex marches, that are working on whittling away zoning and inheritance
and other restrictions at the microlaw level, where a lot of those
discriminations bite particularly hard, for those that are pressing cases in
state courts rather than in federal courts, they are doing exactly what I
think needs to be done to prepare the culture for acceptance and then,
ultimately, legal recognition of same-sex coupling, which might include
same-sex marriage. The danger that I see in making this a matter either of
judicial decree and/or 14th Amendment, federal constitutional mandate is it's
a superimposition rather than a bubble-up acceptance of same-sex parties. And
it's the conservative backlash to that that I worry about.

GROSS: My guest is John Witte. He directs the Law and Religion Program at
Emory University. We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is John Witte, author of "From Sacrament to Contract:
Marriage, Religion, and the Law in Western Tradition."

You said that if gay marriage is legalized, there needs to be some kind of
stopping point, and we don't know what that stopping point is. A lot of
people have suggested that if gays can legally marry, then what's next? A man
marries his pussycat, a man marries three women, a man marries a pussycat and
three women. I mean, is that really a serious concern that, you know, people
are going to marry their pets or their farm animals?

Mr. WITTE: No, I don't think that's a serious concern, and I think that's a
red herring in the debate. I think the more serious concern is the most
natural next step after legal recognition of same-sex marriage is legal
recognition of polygamist marriage. And that is an ancient battleground in
the Western tradition and is a battleground in 19th century American Mormon
polygamy cases that we have to be prepared to join in the event that we make
this next step. I think what we might be moving toward, frankly, in the next
generation or two is a set of states that offer a series of off-the-rack
models of what intimate association entails. Those could include heterosexual,
monogamous union. Those could include homosexual, monogamous union. Those
could include religiously grounded polygamist union. Those could include an
opt-out, which is what current covenant marriage statutes, in the three
states that have covenant marriage statutes, allow.

But three states, Louisiana, Arizona and Arkansas, currently have two options
for Jack and Jill who march up to the marriage registry. One is civil
marriage, which is the traditional easy in-easy out marriage available in all
49 other states. And the other option is covenant marriage, which gives
parties firmer formation requirements and harder exit rules. It's harder to
get in, harder to get out of a covenant marriage as opposed to a contract or
civil marriage. If you think about that, that might well provide a stepping
stone toward a more ambitious set of opt-out provisions, which would say to
parties, `You can opt out of the marriage institutions that the state makes
available to you altogether if you have a bonafide religious community of
which you're a part. You can simply take the marriage and domestic relations
laws of your local Orthodox Jewish community or your Muslim community or your
Mormon community or your Catholic community and choose to abide by them and
leave it to them to set the rules and procedures for marital formation and
dissolution.'

That might sound fantastical, but that's exactly what is available currently
in South Africa under its recent constitution. That's been available in India
for the last 65 years. And it's something which countries that have had
experience with the common law of marriage have now begun to contemplate as a
way of dealing with the cultural, religious and moral pluralism that gets
attached to issues of domestic relations.

GROSS: Well, in ways, isn't that already happening? I mean...

Mr. WITTE: Yes.

GROSS: ...what's happening in the United States is a lot of gay couples are
getting married in their church or in their synagogue. The problem is that
it's not recognized outside of their religion. The state doesn't recognize
it, the federal government doesn't recognize it.

Mr. WITTE: Yes, I think that's exactly right. And...

GROSS: So you're arguing that under--what you're suggesting is that if you
get married within the religion, if it's good enough for the religion, that
the state and the fed will respect it, recognize it?

Mr. WITTE: I'm not sure I'm arguing that. I am arguing that that could be a
step along the way to, among other steps, the eventual recognition of several
off-the-rack models that the state would hold out, including one where parties
can simply opt into any number of different religious communities' domestic
relations systems.

GROSS: Now, again, you say that there needs to be a stopping point, so that,
you know, polygamy isn't legalized if we legalize gay marriage. I guess I
don't understand why if two women or two men get married, how does that bring
us any closer to three people or seven people getting married? I don't really
understand why that brings us closer to polygamy.

Mr. WITTE: Let me rephrase the question a little bit, if I may. I didn't say
we need to find a stopping point. I think we have to contemplate that the
current equal-protection, sexual-liberty, sexual-privacy due process arguments
that are being used to advance the cause for a liberty of same-sex couples to
marry are equally cogent with respect to a group of polygamist parties to come
together into a marriage, three or more parties. And if you add to that the
reality that some of the ardent supporters for bigamy or polygamist marriage
are doing so on the strength of religious convictions that are protected by
the First Amendment free exercise clause and comparable provisions in state
Constitutions, it gets even harder to resist that next step. And all my
caution is that if we accept the conclusion compelled by the logic of equal
protection and sexual liberty and privacy to accord marital status to same-sex
couples, we are going to have to be ready also to accept the easy next step,
which is not the fantastical step of marrying a cat or, you know, marrying
your tractor or something like that, but a realistic next step, which in point
of fact is a factor existing in this country with impunity in some states.

If we're ready to make that step, we should make that step. If we're not
ready to make that step, let's give some pause to the arguments about same-sex
marriage and think if there are more creative ways of building in stopping
points to that logic. We are dealing with constitutional questions with
respect to intimate associations. When you create a precedent that the equal
protection clause and privacy interests of same-sex couples need to be
protected, it is very--there's no easy stopping point in that logic to
preclude a good-faith Jack, Jill and Jennifer trio to march into court. We
believe in stare decisis. We believe in holding to precedents and treating
comparable cases alike. And this could well be postulated as a comparable
case.

And it's not that gays are taking the rap. It's that we are dealing with
difficult questions of constitutional precedent, whose application in
subsequent cases always has to be considered before you're going to make a
momentous decision.

GROSS: So what you're saying is if the law is rewritten so that marriage is
no longer a contract between one man and one woman, then it opens up the door
to other changes. But what if it was changed to, you know, marriage is a
contact between one person and another person? There's still the one and one
in there.

Mr. WITTE: There's still a one-to-the-one in there, and it's difficult for
that line-drawing of marriage as only two parties to withstand the strict
scrutiny that a court might apply on the basis of equal protection and
precedence. Why does Jack, Jill and Jennifer not get the same shake that Jack
and Jennifer or Jack and John get?

GROSS: My guest is John Witte. He directs the Law and Religion Program at
Emory University. We'll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is John Witte, author of "From Sacrament to Contract:
Marriage, Religion, and Law in Western Tradition." We're talking about how
history may inform the debate about gay marriage.

On one side, we have gay couples who want to get married and who are pressing
for that legal right. On the other side, you have the people who want a
constitutional amendment that would define marriage as, you know, a contract
between one man and one woman, thus totally outlawing the possibility of gay
marriage. Our president has said he would endorse that, that he does favor
that. What would it mean, really, to add a constitutional amendment that
restricts that right of marriage?

Mr. WITTE: First of all, let me say I find that to be a very unfortunate form
of constitutional brinksmanship. Marriage and domestic relations issues are
principally state issues, not federal issues. They're principally statutory
and common-law issues, not constitutional issues. And for us to contemplate
in the country a federal constitutional amendment that would define an
institution this way, I think, is a very dangerous precedent. And I hope it
doesn't pass. The legal consequence of having such an amendment pass would be
that courts, federal and eventually state, would have constitutional warrant
to begin to insist upon the letter of that Constitution and then to think
creatively about what the letter of that constitutional amendment would mean
for all manner of things at the state and the local level.

GROSS: It seems to me there's at least two ways to deploy history in
examining the issue of gay marriage. One is to say the history of marriage is
a history of change. It's a history of changing divorce laws, changing, you
know, miscegenation laws, changing laws about a woman's rights within a
marriage. It's just constantly change, and that's what's kept the institution
alive. The other way of looking at it is to say, `Well, we don't have a lot
of historic precedent of this; therefore, we should either not do it or really
take it very, very slowly.' Is that fair to say that there's those two
divergent ways of looking at history?

Mr. WITTE: That is fair to say it that way, but what's common is that
presupposed in both of those scenarios is the understanding the definition of
marriage is not up for grabs. Marriage is a heterosexual, monogamous union
subject to all manner of change with respect to its formation, its maintenance,
its dissolution, the associations that are listed alongside it. But the
assumption in both of those scenarios is that marriage has a common form. The
change that we're contemplating now is a much more momentous change. We are
contemplating changing the players in the institution of marriage. And while
we do have engines of change within the tradition that can well be catalyzed,
it's very important to recognize that the change we're contemplating now is a
much more momentous one. And if it's going to be made, it needs to be made
with full ventilation, full understanding of what the issues are on all sides
and full recognition that the precedent we're laying here has cultural
implications that need to be thought through. That's not to say that history
precludes this kind of change. It is to say, however, that if we're going to
make the change, let's do it with full democratic caution and discernment and
ventilation.

GROSS: John Witte, thank you very much for talking with us.

Mr. WITTE: Thank you very much for having me.

GROSS: John Witte is the author of "From Sacrament to Contract: Marriage,
Religion, and Law in Western Tradition." He directs the Law and Religion
Program at Emory University.

Earlier we heard from historian Nancy Cott, who thinks that gay marriage fits
into the increasingly egalitarian direction marriage has been heading in.

(Soundbite of music)

(Credits)

TONY: I'm Terry Gross.
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