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Odd Wisconsin Archive

Legislating Marriage

We read on the AP wire this morning that "hundreds of people jammed a Capitol hearing Tuesday to argue over whether the Wisconsin Constitution should be amended to ban gay marriage." This isn't the first time that lawmakers have tried to legislate what constitutes a legitimate marriage.

For 150 years, French traders and Indian women married according to la façon du pays (“the custom of the country”). Their unions were formed without the involvement of clergy or governments and could be dissolved merely by the mutual consent of the two parties. After the War of 1812, U.S. marriage customs were imposed on the Wisconsin frontier in place of this ancient French and Indian one. When James Doty was appointed Wisconsin's first judge, he decided that these unions were, under the law, mere "fornication" and "illicit cohabitation" and in October of 1824 hauled 28 of Green Bay's leading citizens into court. The prosecuting attorney, who travelled with Doty on his circuit court rounds in a birchbark canoe, later wrote this memoir of the events. Although the law called for stiff penalites for couples who were not legally married, Doty permitted his 28 defendants time to appear before a justice of the peace and return with proof that their relationship was legal before handing down his sentence. If they gave up their French and Indian custom and adopted the American one, he reduced their fine to a single dollar.

Doty was, in general, far more tolerant of local practices than most U.S. officials, even defending the authority of Indian customs over U.S. law in cases that involved crimes between Indians. You can read about his legal career in the Winter 2002-2003 issue of our Wisconsin Magazine of History.

Does a legislature have the right to try to define marriage? Of course it does. Do voters have the right to approve or disapprove their actions in elections and referendums? Of course they do. If the majority of voters decide that marriage must conform to the dictates of a single ideology and that only blond and blue-eyed people can be legally married, do the rest of us have any recourse? Of course we do. It's called the U.S. Constitution, which protects the civil rights of minorities from the transient whims of the majority, and is the standard that will ultimately be applied in the current controversy.
:: Posted in Curiosities on November 30, 2005

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