Sunday, July 05, 2015

Obergefell v. Hodges and Maynard v. Hill: A Marriage Equality Callback to Seattle

FROM THE DEPARTMENT OF UNINTENDED HUMOR DUE TO SLOPPY SCHOLARSHIP: Both the Majority and the Dissent in Obergefell v. Hodges cite Maynard v. Hill,125 U. S. 190 for the proposition that "Marriage" ...  [has long been] ‘a great public institution, giving character to our whole civil polity’" and "the foundation of the family and of society, without which there would be neither civilization nor progress”.

These are noble words and true, to be sure, but when David "Doc" Maynard, Seattle’s first doctor, second lawyer, booster extraordinaire and drinking buddy of Chief Sealth is involved, the story must be more complicated.

In the 1850s, Maynard and his wife Lydia were leading figures in developing Cleveland from a town of 500 to a small metropolis. However, they lost a fortune in one of the periodic Panics that ravaged America before FDR's reforms. Why David left Lydia and two adult children to strike out West on a mule is disputed, but it is known that when he arrived in Seattle he claimed a married man’s tract of 640 acres, plus the love of Catherine Brashears, a widow who he'd  met on the Oregon Trail and saved from cholera.

David and Catherine became Oregon Territory's original power couple; the Legislature showed its gratitude by granting David a divorce from Lydia. Thereafter Catherine and David wedded and, by all the evidence, lead a happy and successful marriage, developing much of the early Seattle downtown.

However, a certain Col. Larrabee noticed a weakness in Maynard’s claim to what was rapidly becoming valuable property: what was Lydia’s interest in the Maynard Donation Claim? Larrabee  reportedly paid her a nominal sum for her share, and sued to take possession. 

Lydia came to Seattle to give testimony; legend has it she put up at the Maynard house and Doc casually strolled Front Street with a wife on either arm.

The  Commissioner of the General Land Office granted Maynard the west half of the claim (which he would have gotten regardless of being married) but as for the east half, there remained question: which was the relevant wife – the one when the claim was filed, or the one when the claim was perfected? And could the Legislature divorce Lydia at all ?

By this time, much of the land had been sold, so the real effect of the decision would be to throw a lot of innocent third parties out of their homes, leaving Larrabee with valuable real estate already improved. The scale of the money involved may be estimated by the fact that the United States Supreme Court. was asked to decide whether the Legislature was empowered to alter the Maynard marital arrangements.  After much weighty analysis, including the lovely language quoted by both sides in Obergefell, the Court said “yes”. The divorce was effectual; Lydia’s interest had not perfected before the divorce ended it;  Catherine never had an interest; and therefore the land went back to the public where it was taken by (to use the phrase of the day) “land sharks”.

And so back to Obergefell.  There is unintentional humor in the dissent's use of Maynard:

“This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey,114 U. S. 15, 45 (1885), which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill,125 U. S. 190, 211 (1888).”

The factual basis of Maynard is that the traditional marriage of David and Lydia failed. Had that marriage continued "for life", Seattle would have lost its most effective early developer and power couple. The Obergefell dissent appears to endorse as "traditional" the abandonment of  a marriage with children in favor of another which is childless, but helpful to progress and civilization in other ways.  Whatever one may think of Boeing, Microsoft, Amazon, Costco and grunge, the Pacific Northwest’s contribution to progress and civilization would have been much the less but for the ending of the first Maynard marriage, as supported by the Maynard court and, perhaps unintentionally, the Obergefell dissenters.

Doc Maynard, booster, lawyer, dealmaker, judge and wheeler-dealer would probably have laughed.


[P.S. Maynard v. Hill also stands for the proposition that factual asssertions in Supreme Court decisions should be fact-checked. for one thing, it states Maynard moved to Ohio in 1850, when actually it was a decade earlier.]

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