• March 1, 2013

The recently aired PBS program, MAKERS, is a breath-taking achievement and an amazing testimonial to the progress our society has made in women’s rights over the past forty years.  I recommend to all without reservation.

Of the many great stories, I found the story of Kathrine Switzer, the first woman to run the Boston Marathon in 1967 most striking.  Women were not allowed to run in the marathon back then.  (Switzer quipped, “Maybe they were afraid our uteruses would fall out…”)  Switzer signed up for the race as “K. Switzer,” was given an official number, and she ran with her (male) coach and also her boyfriend.  Jock Semple, a marathon official, visibly apoplectic with rage that a woman would dare participate, ran onto the course to physically drag Ms. Switzer out of the marathon.  Switzer’s boyfriend sent the official, Jock Semple, flying with a body block and Switzer finished the marathon.

Fifteen years later, the Equal Rights Amendment (“ERA”), which provided that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” failed to get the required number of ratifications to amend the U.S. Constitution (though it got close).  In MAKERS, feminist Gloria Steinem lamented that the ERA, in one swoop, would have invalidated thousands of discriminatory laws in all fifty states which, otherwise, would have to be challenged one by one.

So it has come to be.  The pace of social progress was simply too fast, it seems, for many Americans and, instead of a sweeping new era, we continue to incrementally progress toward a more equal society.

I was reminded of this on seeing an order, this week, from U.S. Mag. Judge Janie S. Mayeron (D. Minn.) about Minnesota’s “the marital privilege.”  Due to that statute,

In summary, the marital testimony privilege is a blanket privilege. It has the effect of preventing all adverse testimony by a spouse without the privilege holder’s consent. The subject matter of the proposed testimony is inconsequential as long as the party-spouse objects, and the testimony would be adverse. If the party and the witness are married at the time of trial, the privilege exists.

What about gay couples?  Where does this leave them?

Because we have no hope any time soon of passage of the ERA, whether for women or for the GLBT community, it leaves GLBT couples vulnerable where our society has seen fit to offer this extraordinary protection for married heterosexual couples.

Judge Mayeron’s order quotes a 1939 Minnesota Supreme Court decision:

The family is the basic unit of society as the cell is of the body. To cause strife between the parties to a marriage contract is to undermine this institution and thus to weaken the entire social structure. Courts and legislatures have recognized the burden which antagonistic interests impose upon the intimate relations of husband and wife and the harm to the public which results from marital discord and have, as a general rule, refused for this reason to permit one spouse to testify against the other without the latter’s consent.

Because we have no ERA and no prospect of one any time soon for the GLBT community, we will have decades of heroes like Kathrine Switzer, and we will have arduous marathons to broaden laws, one by one, to share the laws’ power and social benefits equally, as they should be, rather than selectively based on outdated social attitudes and bigotry.

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