Thursday, October 06, 2005

Kentucky’s Mysterious Definition of Marriage

In order to Make a Difference in the commonwealth in which I happily reside, I have been reading through the Kentucky Revised Statutes on family law. (My sister wrote, “I don’t know what you’re doing penance for, but it must have been pret-ty bad.") No, really, statutes are fascinating. As witnessed by the first item on my quest, the definition of marriage:

402.005 Definition of marriage.
As used and recognized in the law of the Commonwealth, "marriage" refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.


I understand most of this. As far as the government is concerned, marriage is a civil status. Other institutions, such as churches, can make of marriage something more if they want to. Marriage unites one (1) and one (1) to distinguish our monogamy from the polygamy that one might find elsewhere. Kentucky marriage unites a man and a woman, re-affirming, as the 2004 constitution amendment vote made clear, this state’s commitment to traditional heterosexual marriage. Marriage is for life, as least in hope. Marriage is both for the couple and for the whole community -- and a great boon it is to both, too.

Then we get to the mysterious part. What on earth does “duties legally incumbent upon those whose association is founded on the distinction of sex” mean?

What I would expect at this point in the sentence is, “sexual fidelity and the raising of the children they produce,” or something to that effect. I believe that is what “those whose association is founded on the distinction of sex” means. My best guess is that the General Assembly intended something like sexual fidelity and childrearing. They didn’t want to say that, though, so as not to exclude the childless, adoptive parents, and, perhaps, the maritally celibate. So it went through the legislative sausage grinder and came out with this choice legal euphemism, “duties legally incumbent upon those whose association is founded on the distinction of sex.”

If anyone knows the history of this phrase, I would welcome illumination.

1 comment:

Gruntled said...

Nancy Jo Kemper helped sent this reply:

"As to the phrase: those "duties legally incumbent ujpon those whose association is founded on the distinction of sex"--my memory tells me that meant that the man was responsible financially for his family, and that the woman could not deprive the man of her sexual "favors." Deprivation of bed and board used to be grounds for divorce. So I suspect that the phrase is a delicate 19th century way of expressing those rather antiquated but often still relevant favors and liabilities of the marital state. I seriously doubt that they really meant sexual fidelity (except on the woman's part) and child-rearing. "