This essay written from a historical, first-person perspective explores the parallels between the current movement for a Federal Marriage Amendment and that of the nineteenth century through the lens of feminist Elizabeth Cady Stanton. Using the archival sources of Stanton’s articles and speeches from 1880 to 1902, the paper identifies her key arguments opposing a constitutional standard of marriage. The paper then juxtaposes Stanton’s arguments against the 2004 Federal Marriage Amendment to reveal the continued relevance and import of her insights.
Stanton’s analytical platform attacked the core pretexts of federalism and gender that fueled the proposed marriage amendment in her time. These two concerns, identified in recent scholarship as “institutional anxiety” and “gender ideology,” have similarly dominated modern debates over the Federal Marriage Amendment. The call for marriage amendments in both centuries thrived on the institutional anxiety raised by full, faith and credit issues of interstate recognition created by disparate laws of divorce or gay partnerships. Stanton counters this concern by revealing that a constitutional amendment continues to restrict the power of the states by squelching their local experimentation in democracy and progress. In addition, Stanton deconstructs the pretextual arguments of states’ rights and preservation of the family to reveal the gender bias of perpetuating traditional gender roles in marriage. Today, this argument touts the importance of opposite gendered role models in the family. Stanton exposes the use of gendered roles and their biblical foundations to endorse further governmental discrimination on the basis of sex. Finally, the paper applies Stanton’s most radical notion of marriage as a civil contract to the question of gay marriage. It concludes with Stanton’s recommendation that our wisest course seems to be to leave these questions wholly to the civil rather than to cannon law, the jurisdiction of the several States rather than the nation.
Tracy A. Thomas. Elizabeth Cady Stanton on the Federal Marriage Amendment: A Letter to the President, 27 Constitutional Commentary 137 (2006)