Jennifer Thompson is one of the property rights attorneys at the Pacific Legal Foundation. We talked about the case of Barbara Lynch, a San Diego area property owner who was told that if she wanted to build a seawall to prevent her land from collapsing into the ocean, she'd have to give up property rights to the California Coastal Commission. And we talked about the case of the Levin family in San Francisco, who were forced to pay two years worth of the difference between the rent they charged their tenant and the rent the tenant had to pay at his new place, in cash, before they were allowed to take their property off the rental market.
The Phoenix Federalist Society is doing an event about the 10 year anniversary of the awful Kelo v. New London eminent domain case on June 17.
I'll be sitting in on KFMB AM 760 in San Diego next week, between 10 and noon. You can listen online here. We'll be talking about some cool PLF cases, but also about other issues, with guests including Dan Caldwell of Concerned Veterans for America, Jonathan Blanks of the Cato Institute, and Christina Sandefur of the Goldwater Institute. Please join us!
In today’s oral argument in the same sex marriage cases, Justice Alito asked attorney Mary Bonauto whether same sex marriage existed in ancient Greece. The ancient Greeks had both marriage and legal same sex relationships—even Plato wrote approvingly of same sex relationships, Alito noted—yet they didn’t have same-sex marriage. Thus it must follow that constitutional protection of same-sex marriage must be a dramatic, unwarranted change in the understanding of marriage. I’m not sure that this proves what Justice Alito thinks it proves. Marriage in ancient Greece was a profoundly patriarchical system, with women dramatically deprived of what we would consider basic human rights. Lacking a constitutional principle of equality, let alone of the equality of men and women, the Greeks saw nothing wrong with treating women essentially as property. Although the Greeks of Homer’s day treated women as more equal, the Athenians of Plato’s age treated wives as belongings—“a mere chattel, passively submitting to the position of her friends,” as one author observes. “Of her the verb ‘marry’ is always used in the passive.” Charles Burton Gulick, The Life of the Ancient Greeks 123 (1902). Women enjoyed no legal rights, could be divorced at any time, and only rarely had an opportunity to go out of doors. “The best ornament of women is silence,” said Sophocles.
Justice Alito alluded to the Greeks in order to buttress his suggestion that confining marriage to opposite-sex couples was not meant to demean same-sex couples. But the practices of the Greeks actually points up the opposite conclusion. The reason why Plato and other Greek philosophers wrote approvingly of same-sex relations was because they treated women as such a degraded class that they thought companionship and partnership were possible only between men. A “Platonic friend” is necessarily a man’s other male friends, because one can only share thoughts and opinions with another man—not with a woman. Same-sex relations were for the Athenians a way of having both sex and partnership, which they considered impossible between opposite-sex couples in just the way today’s conservatives think it impossible between same-sex couples. One can easily imagine a judge at the Areopagus sneering at the idea of companionate, opposite-sex marriage by pointing out that the definition of marriage must necessarily exclude the sharing of ideas, passions, beliefs, experiences, and so forth. Marriage as a “commitment” at all would have been regarded as a freakish innovation. When Alito says that the Greeks' limiting of marriage to opposite-sex couples was "not based on prejudice against gay people," he omits the fact that the Athenian practice of same-sex relations was based on prejudice against opposite-sex couples!
Our modern conception of companionate marriage—of marriage as a “conversation,” as Milton put it—is a relatively new one, dating back only a few centuries, and even then, women were regarded as subordinate partners until a few decades ago. To draw on the Greeks as a precedent for the definition of marriage is absurd because it rejects the fundamental principle of the American constitutional order—and the one that is at issue in these cases—the principle of equality. That principle was fought for over the course of centuries, and we today so take for granted the proposition that men and women are essentially equals in a marriage partnership—we so take for granted the idea that marriage is a partnership at all!—that we tend to forget how radical a change it really is.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.