Perry et al v. Schwarzenegger et al

Filing 302

Memorandum in Opposition re 285 MOTION in Limine TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, - Yes on 8, A Project of California Renewal, Hak-Shing William Tam. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Cooper, Charles) (Filed on 12/11/2009)

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Perry et al v. Schwarzenegger et al Doc. 302 Att. 1 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page1 of 14 Exhibit B Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page2 of 14 Hindu Marriage Katherine K. Young and Arvind Sharma Behold the comely forms of Surya! Her border-cloth and her headwear, and her garment triply parted, these the priest has sanctified. I take thy hand for good fortune, that thou mayst attain old age with me thy husband. Devas -- Bhaga, Aryaman, Savitri, Purandhi -- have given thee to be my house-hold's mistress. Pushan, arouse her, the most blissful one; through whom a new generation will spring to life. She, in the ardour of her love, will meet me, and I, ardently loving, will meet her. For thee at first they escorted Suryaa with her bridal train; [g]ive the wife, Agni, to the husband and also give her progeny. Agni has given him the wife with long life and brilliance; longlived be he who is her husband, may he live a hundred autumns. Soma gave her to the Gandharva, the Gandharva gave her to Agni, [a]nd Agni has given her to me granting me wealth and sons.1 [Aug 5, 2005] As these verses from the Rgveda, the oldest and most sacred Hindu scripture, illustrate, Hindus long for the divine prototype of marriage. Each couple is married the way the sun, Surya was married to his wife, Suryaa.2 In primal religions, for instance, people are truly alive--therefore, real, true, and sacred ­ only when they act out archetypes; at other times, they are profane. Ancient Hindus, moreover, believed that they lived in a world governed by deities; they not only sought the blessing of the gods -- Bhaga, Aryaman, Savitri, Purandhi -- but also modeled their lives as far as possible on them. This tendency persisted in classical Hinduism, when the pantheon came to include a new generation of deities; their deeds are recorded in the Puranas just as the deeds of earlier deities are recorded in the Vedas. In this evolved pantheon, Siva emerged as one supreme deity for many Hindus just as Visnu did for others. In one form, this great ascetic was overwhelmed by the ascetic powers of Parvati, and was won over by her. India's most famous classical poet Kalidasa says that Siva and Parvati are as close to each other as word is to meaning.3 And in one famous image of the couple, Siva and Parvati are shown not merely as close to each other but as having merged in each other, their proximity being carried to the point of androgyny. Even today in Maharashtra, women worship coloured clay images of Parvati and Siva and retell the story about how Parvati used the power 1 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page3 of 14 of her austerities to attract Siva as her husband and even became half of his body (ardhanarisvara). Another version of the divine marriage is between the woman Antal and the great god Visnu (also a supreme deity, in some Hindu circles, and therefore Siva's competitor). Antal was a devotee of Narayana-Visnu in ninth century Tamilnadu (South India). In her Nacciyartirumoli, she dreams of marrying him in his incarnation as Krsna. I had a dream O Sister! The town was decked with festoons and golden urns. Surrounded by a thousand caparisoned elephants our lord Narayana came walking towards me. I had a dream O Sister! Under a canopy of Areca fronds, he stood like a lion called Madavan alias Govindan. They fixed our wedding for the morrow. I had a dream O sister! Indra and the hordes of celestials came. They approved the match and chanted Mantras. Andari his sister draped me with the bridal Saree and garland. I had a dream O Sister! Scores of sages and seers chanted on a high key; they anointed us with waters from the four Quarters, then tied the talisman-thread on our wrists. I had a dream O Sister! Bright young ladies with lamps and sacred urns came to greet our king of Mathura. The Earth trembled as he strode with sandaled feet. I had a dream O Sister! Drums beat and conches blew under a canopy of pearls on strings. Our lord and cousin Madhusudana held my hand in his. I had a dream O Sister! Learned priests recited from the Vedas and laid the faggots on the Darbha grass with Mantras. Like an ... elephant-bull, he led me around the fire-altar. I had a dream O Sister! Our lord and master Narayana with lotus hands, ­ our sole refuge in this and seven lives to come, 4 ­ lifted my foot and stood me on the grindstone. I had a dream O Sister! Bright-faced brothers with bow-like eyebrows stood me before the kindled fire. They placed my hands over the lion-like Achyuta's, then heaped puffed-rice for feeding the fire. 2 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page4 of 14 I had a dream O Sister! They smeared me with red powder and sandal paste, and took us around the town on an elephant, then bathed us both with scented water. This decad [sic] of pure Tamil verses by famous Viliputtur-King's daughter Goda, describes her dream of marrying the cowherd-lord. Those who sing it will be blest with good progeny.5 This wedding hymn combines elements of the northern Rgvedic marital paradigm and southern non-Vedic traditions. They have been crafted into a sectarian view of marriage ­ that of the Srivaisnavas of South India. Devotees came to consider Antal an incarnation of the goddess Laksmi, wife of the Lord. And interpreters of the tradition came to understand Antal's dream of marrying the Lord as foreshadowing the actual marriage between Visnu and Laksmi in her incarnation as Antal. Devotees express this marriage liturgically at an annual festival in all Srivaisnava temples to this day and chant Antal's wedding hymn. The pattern has become paradigmatic, in fact, for every Srivaisnava wedding. They celebrate each one by singing the sixth decade of the Nacciyartirumoli ­ Antal's marriage dream. Hindus associate the beginning of marriage with development of human nature. According to the great Hindu epic, the Mahabharata: "Pandu, father of the five great Pandavas, informs his wife that free sex of men and women like cattle continued till Svataketu, son of sage Uddalaka, introduced the institution of marriage."6 In other words, human nature needs the culture of marriage as its complement, a fact that is born out by evolution,7 because human behaviour is governed less by instinct than animal behaviour is. Culture is essential to the reproductive and intergenerational cycles. This effort to sublimate marriage, as it were, by modeling it on divine prototypes or appealing to divine matrimony as an ideal, might well be an effort to secure social stability for the institution by sanctifying it. Society has its own stake in a stable marriage, because the historical record suggests that marriage is the best context for raising children. The Sanskrit scriptures reflect and promote the worldview of Brahmins, the highest caste. Because this is true of marriage, we will refer to the dominant and scriptural based form of marriage as "elite" marriage (although it eventually came to include all castes ­ especially the upper, or "twice-born" ones ­ that have imitated its worldview in the interest of upward social mobility). Hindu scriptures speak of marriage as "taking [the girl] out [of her paternal home] (udvaha),"8 `taking [her] for a special purpose (vivaha)," "bringing her near (upayama)." In addition, several words refer to important events in the wedding ritual: "going round [the sacred fire]" (parinayana) or "taking seven steps [around the fire] (saptapadi)." and "taking her hand (panigrahana)," Manu, the great lawgiver (who lived sometime between the second century BCE and the second CE) summarizes the purpose of marriage as "Offspring, rites prescribed by Law, obedient service, the highest sensuous 3 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page5 of 14 delights, and procuring heaven for oneself and one's forefathers ­ all this depends on the wife."9 In this perspective, the wedding is a samskara. The word denotes making something perfect. It connotes the rites of passage from conception to death, however, which provide transitions from one stage of life to another. They purify people and then make them fit for the specified purpose of each stage. In short, samskaras are sacraments. The wedding is pre-eminent among these samskaras, according to some traditional authors, because it provides entry into the householder stage of life ­ and that supports the other stages of life:10 According to Manu, "As all living beings exist dependent on air, so people in other orders of life exist dependent on the householder."11 The elite form of marriage is called the gift of a daughter (kanyadana). As a sacrament, elite marriage was traditionally monogamous and for life; extended families supported wives whatever the circumstances ­ infertility and abandonment by husbands, say, or widowhood. The system precluded both divorce and remarriage. But as we will show, Hindus have made many accommodations and even subverted this ideal of monogamy. Elite Hinduism recognizes marriage as the norm, although it allows lifelong asceticism as an exception as long as only spiritually evolved men follow this path or only at the end of life ­ that is, after men have passed through the householder stage and fulfilled all their duties to society. Put another way, elite Hinduism has structurally contained asceticism to keep it a minority but highly esteemed orientation. Lower-caste Hinduism has understood marriage as a contract, on the other hand, rather than a sacrament. It involves few rituals and allows both divorce and remarriage. Universal and nearly universal features of Hindu marriage In this section, we will analyze Hindu marriage from a comparative perspective based on one study of marriage in small-scale societies and the world religions of large-scale ones.12 It is important to note that every culture's definition of marriage appears unique, because its variable features, which reflect necessary adaptations, 13 mask the universal ones.14 Universal and nearly features of marriage include preparation: socialization into the idea that most people must marry, that procreation must occur only under specific conditions, and that only specific people are eligible partners. The development of an alliance between a man and woman in the case of "love marriages" or between families first in the case of arranged ones. The highest authorities and incentives give these ideas their status. Marriage refers implicitly also to the wedding proper: facilitating the couple's bonding ­ including orations about mutual affection and companionship, the importance of mutual support and duties toward future children, and fidelity for the sake of durability. Because the wedding is a public act, it provides communal support and accountability. Finally, marriage includes the later effects of weddings: maintaining the intergenerational 4 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page6 of 14 cycle (children maturing, entering into marriage, having children, bringing them to maturity, and caring for the aged parents who had once cared for them. Cross-culturally, the variables of marriage include arranged marriage or chosen marriage; polygamy or monogamy; endogamy or exogamy; marrying up or marrying down; dowry or bride price; bride service or no service; sexual equality or sexual hierarchy; an ideal of many or of few children; extended family or nuclear family; residence with the bride's family, the groom's, or neither; patrilineality, matrilineality, or neither; divorce allowed or prohibited; remarriage allowed or prohibited; and so forth. Hindu marriage, too, can be viewed as a constellation of these universal, nearly universal, and variable features. We will discuss that in the next section. Encouragement of procreation under specific conditions: One perennial problem in every human society is how to encourage responsible reproduction. The sexual instinct is very powerful. It leads not only to intercourse but also, in many cases, to children. Culture, in this case marriage, therefore, must do what nature itself does not do. It ensures sexual responsibility. Cultures with strong marriage systems require that a wedding precedes intercourse; this makes potential parents places self-conscious about future obligations to the young and to each other. In the Rgvedic wedding hymn that we have already mentioned, for instance, we read: "Give the wife, Agni, to the husband and also give her progeny. Similarly, Antal links marriage with the future prospect of children: "Those who sing [the decade of stanzas about her dream to marry the Lord] will be blest with good progeny."15 When couples make oaths to the deities and to the guests, the resulting solemnity provides them with enough incentive to carry out their future responsibilities. Contemporary social-science evidence supports this ancient idea: children who are born to biological parents in the context of marriage and reared by them usually have the best life outcomes.16 In the past, having children was so important that, during weddings, priests recited mantras that create the power to help achieve this goal. After the wedding came sacralized intercourse and a special samskara to achieve pregnancy. From then on, couples were required to have intercourse during the wife's fertile period. Highest authority and incentives: Cross-culturally, marriage has been legitimated by the highest authority ­ usually ancestors, deities, or laws. Hindus look back to their Rgveda, especially the ancient and paradigmatic wedding hymn (10:85). Out of its 47 verses, as many as 29 are quoted in elite Hindu marriages to this day.17 The Rgveda refers not only to the marriage of Surya and Suryaa, the divine prototype mentioned above by way of introduction, but also to the authority of various deities who bless it. In a similar way, Srivaisnavas appeal to Antal's stanzas. These have scriptural authority, because they belong to the Nalayiradivyaprabandham. Antal appeals to the authority of the deities and the power of sacred mantras: "I had a dream O sister! Indra and the hordes of celestials came. They approved the match and chanted Mantras." Marriage is a 5 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page7 of 14 major topic, too, in secondary Hindu scriptures (such as the Grhyasutras, Dharmasutras, and Dharmasastras) along with sectarian ones. Because marriage is a cultural creation, society must maintain it carefully. And because its main purpose, at least until the modern period in most industrialized countries, has been responsible reproduction (which involves not only social control but also self discipline) and bringing children to maturity (which involves altruism), marriage has been buttressed by culturally endorsed incentives. Hindus, for instance, refer to four goals of life (purusarthas): duty and ritual (dharma), livelihood (artha), pleasure and progeny (kama) and liberation (moksa). They need marriage to fulfill the first three. Some scriptural passages place dharma first in the list of reasons for marriage. They argue that it is the very pillar of the householder stage of life, of the other stages, and therefore of dharma itself. (Dharma is a Sanskrit word that is often used for religion but with connotations of order, ritual, and duty in the sense of that which supports family life, society, and even the cosmos.) The incentive of fulfilling dharma as the foundational goal of life is more specific for Hindu men, who must pay back three debts during the householder stage. They must repay the rsis by reciting the Vedas. They must repay the deities, too, by performing rituals before the sacred fire (homa). Because men have to do these together with their wives, they must first marry. A married couple is called, therefore, dampati (this connotes husband and wife who fulfill the rituals), and wives are called sahadharminis (those who perform dharma, especially the Vedic rituals, together with their husbands etc.18 In both the Rgvedic wedding hymn and Antal's dream one, for instance, the weddings are performed with the involvement of Agni, the personification of the sacred fire, or the ritual fire itself. Men must repay their debts to the ancestors, moreover, by marrying and having children. In one famous story, an ascetic has a vision of his ancestors being tormented in hell; because he has not married and continued the lineage, he is depriving them of the ancestral offerings that would otherwise sustain them. As with other religious traditions, Hinduism recognized that extra cultural effort was needed to make men take marriage seriously. That was because marriage presented men with some potentially unattractive features, including the prohibition on sex outside of marriage and all the hard work to provide for their families. Scriptural Hinduism based the very definition of masculinity on marriage and fatherhood, therefore, thus promoting the link between fathers and sons, who were more like mothers and sons. According to the Satapathabrahmana,19 men became complete by having a son through whom they would be reborn. According to Manu, "Wife, self, and offspring ­ that is the full extend of `man.' Brahmins, likewise, proclaim this: `The husband, tradition says, is the wife;'"20 "Through a son a man gains the worlds; through a son's son he obtains eternal life; but through the son's grandson he attains the crest of the sun;"21 and "The Self-existent One himself has called him `son' (putra) because he rescues (tra) his father from the hell named Put.".22 Though based on a false etymology, the link between son (putra) and hell (put) relates a man's destiny to having a son. 6 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page8 of 14 This was reinforced by the ritual requirement for a son (or a representative if he did not have one) to preside at his father's cremation, which would allow the latter a better rebirth or passage to heaven. Because Vedic religion and subsequently North Indian Hinduism supported a patrilocal and patrilineal social structure, parents needed sons to provide the family with resources and protection (although Hinduism adjusted in some regions to local traditions of cross-cousin marriage, matrilineality, and so on). But in the wedding hymn and other accounts of marriage, the importance of sons does not overshadow the importance of wives. Without wives, sons would be impossible. As for the wives, they had their own vested interest in good husbands and sons. Eligibility of partners: Rules on eligibility are universal. This is one foundation for creating a norm. Those in authority, at any rate, decides who is ideal. In her wedding dream, for instance, Antal says "Indra and the hordes of celestials ... approved the match." At the minimum, all cultures have a rule against incest, and all cultures have defined marriages as unions between men and women (although a few have allowed exceptions to this norm as long as the reproductive system for the group is not disturbed). Because elite Hindu marriage was invariably associated with having children and maintaining dharma, it assumed unions between men and women, a point that they could have supported by the divine prototypes of marriages between gods and goddesses. Manu makes this assumption explicit: "Women were created to bear children, and men to extend the line; therefore, scriptures have prescribed that the Law is to be carried out in common with the wife."23 Other Hindu rules for eligibility fall within the category of variables. They include avoiding consanguinity to a specific degree (such as forbidding marriage to second cousins and beyond), marrying within caste, subcaste, and ­ in the case of Brahmins ­ the right gotra. Hindus sometimes define eligibility on linguistic, regional, or sectarian identities. In addition, Hindu scriptures dwell at some length on the desirable characteristics for husbands and wives (intelligence, good family, good character, good health, wealth and so forth).24 The higher the caste, generally speaking, the more rules for eligibility. Mutual affection and companionship: Many people today, especially in Western countries, assume that the purpose of marriage is to celebrate the love between two people. But comparative studies show that many societies prefer arranged marriages and all acknowledge that the primary purpose is having children and raising them in the best context. So it was with elite Hindu marriages. They were arranged, although love or gandharva marriage was recognized as one of eight legitimate types in the Dharmasastras. Fathers or other male members of the family usually did the arranging25 with major input from the senior women. Only if the elders had found no one after three years could young women find their own (as in the famous case of Savitri. Love and companionship, though secondary in this scheme, were nevertheless important enough to be encouraged in the wedding ritual. In one part of the Rgvedic hymn about Soma's 7 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page9 of 14 wedding to Suryaa, (which preceded that of Surya to Suryaa), Soma takes hold of his bride's hand and says "I take thy hand for prosperity, for ... love ."26 Similarly, in our Rgvedic hymn: "She, in the ardour of her love, will meet me, and I, ardently loving, will meet her." Likewise, in many verses of her Nacciyartirumoli, Antal sings of her passionate love of her "lord." In some elite circles today, however, love marriage is occurring more often. Alliances: At the universal level, every marriage defines an alliance between a man and a woman and between families (and the social or religious groups that they represent). In the preferred type of Hindu marriage (kanyadana), according to the Dharmasastras, one rule of eligibility was that women must marry at the same status or up, although men could marry down for the second or more times. As a result, the families of young women had to find men with equal or higher status. This made alliances an important aspect of marriage, and alliances were often facilitated by gift-giving. Ksatriyas and other dominant castes increased their status by giving large gifts to the families of grooms. This was made illegal by the Dowry Prohibition Act of 1961 and amendments to it that were passed in 1984, although it continues secretly in some circles. Public act: Cross-culturally, marriages are public acts; they have witnesses, including those who watch wedding processions. Music often attracts attention to these events. The Rgvedic wedding hymn refers to a procession, for instance, which is part of a public event: "For thee at first they escorted Suryaa with her bridal train." Antal provides a graphic description of the wedding's public dimension: "The town was decked with festoons and golden urns. Surrounded by a thousand caparisoned elephants our lord Narayana came walking towards me;" "Under a canopy of Areca fronds;" "Bright young ladies with lamps and sacred urns came to greet our king of Mathura;" "Drums beat and conches blew under a canopy of pearls on strings"; "and "took us around the town on an elephant, then bathed us both with scented water." Even today the husband-to-be arrives at the village of his future wife accompanied by a procession. The wedding itself might be performed outside the house under an awning. After the ceremony, the groom takes his bride to his village in a procession that is accompanied by drums and music. People turn out to witness this spectacle, because they believe that they, too, will be blessed by the sight of the couple. (This was considered auspicious as was the wedding event itself and even the time chosen for it.) Durable relationships: A central purpose of marriage, cross-culturally, has been to facilitate durable relationships between husbands and wives. The underlying reason is to ensure social, economic, and emotional stability first for children and then for other members of the family. The prerequisite for a durable marriage is parental longevity. As our Rgvedic hymn says, "Agni has given him the wife with long life and brilliance; long-lived be he who is her husband, may he live a hundred autumns." Elsewhere, the wedding hymn says, "may you stay here 8 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page10 of 14 together, may you not be separated, may you compass [sic] all life (long life, happy in your own house and playing with your sons and grandsons ...)."27 Stone is a symbol of durability. Antal says, for example, that "Our lord and master Narayana with lotus hands ... lifted my foot and stood me on the grindstone." Durability is best built on fidelity. The wedding hymns appeal to both partners in this regard. One wedding ritual requires them to look up at night to the star Arundhati, which is considered constant, being located near the pole star. The fidelity of Hindu wives is especially important. This not surprising, because the texts were written by men and reflect their perspective: the universal urge of men to know that children are their own, which motivates them to offer provisions and protection to both the children and the mothers. Even with the utmost cultural effort to promote durable marriages, Hindu authors have recognized, these are potentially fragile. For one thing, marriages ultimately depend on bringing men and women together despite their obvious differences.28 Like all other cultural creations, moreover, marriages are threatened in times of rapid social change. Mutual support of couples and duties toward children: Across cultures, marriages have a primal contract at their core: women gain protection and provisions for their children and themselves from men in exchange for fidelity and childbearing. Bringing men and women together in marriage serves the needs of both society as a whole and couples in particular. According to one Rgvedic passage, for instance, "'O ye mankind! Let your object of life be one and the same, let your hearts be equal (in feeling) and let your minds be united together so that there may be an excellent common status of life for all."29 Intergenerational cycle: Some modern societies have developed welfare systems that care for the aged; in most societies, though, parents must rely on their children. This is why scriptures contain many admonitions to care for aged parents. In Hinduism, the lawgiver Daksa says that "parents ... are to be maintained." This idea is repeated in many texts such as that of Manu: "A mother, father, wife, or son ought never to be abandoned...."30 Cross-culturally, universals and nearly universals account for most norms. But norms have never accounted for the variety actually found in human cultures. We would explain Hindu variety partly by the fact that Hindu scriptures look beyond the ideal and explore the difficulties of marriage. The difficulties of marriage from the perspective of women is expressed in their folksongs and jokes.31 Of great interest to us is a distinction drawn in Hindu theology between what the deities do and what they say they do. Pious Hindus are supposed to do what they said, which is noble, as distinct from what they did, which did not always measure up. Take the example of Rama and Sita. They were supposed to be the ideal divine couple because of their lifelong fidelity. But they experienced marital discord, because Rama had to deal with the charge that she had been unfaithful. Or consider the example of Lord Krsna, who undermines his union 9 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page11 of 14 with Radha by having promiscuous relations with the other cowherd young women (gopis). These have been less attractive models for the new generation of Hindus, who have turned instead to Siva and Parvati as models not only of conjugal fidelity but also of conjugal happiness. Siva is an indulgent husband. To entertain Parvati, he even performs -- once every month at Chidambaram -- his cosmic tandava dance in front of her. And as he does so, all the sins of the world are destroyed! Marriage varies cross-culturally. Most societies have used the freedom latent in culture to adapt marriage to new circumstances but without destroying the essential roles that are defined by its universal and nearly universal features. Although Hindu scriptures define a universal ideal of marriage, they also recognize that marriage is extremely important to the well-being of every particular community. That is why they accept local customs as variations upon a theme. Hinduism has supported patrilineal, matrilineal, and cross-cousin marriage systems ­ even though patrilineality lies at the heart of Sanskritic scriptures. And although monogamy is the ideal, polygamy is common in some communities. As good scholars, Hindu authors have a penchant for noticing and classifying diverse customs of which there are many due to the presence of linguistic, ethnic, and religious groups and the presence of economies that range from hunting and gathering to international trade. Scriptures dating from circa 300 BCE refer to eight kinds of marriage and arrange them in the order of status (from a Brahmin perspective). They divide these eight into two groups of four each. The first four are united by the gift of the girl (kanyadana). The other four include belong to a miscellaneous category of marriages by brideprice, mutual love, abduction, and rape. 32 Modern Hindus have reformed some of the variable features of marriage to improve the status of women. The institution is clearly changing to accommodate those who live in urban, egalitarian, and global conditions. 1 Rgveda X.85:31-41 in A.C. Bose, Hymns from the Vedas (Bombay: Asia Publishing House, 1966) 135-137. We have taken the liberty of altering the format. We have also removed all diacritical marks from quotations in this essay. 2 Rgveda X.85. The bride had three prior (symbolic) marriages with three gods ­ Soma, Gandharva, and Agni - who had protected her in birth, childhood, and now, at the time of marriage, respectively. 3 4 5 Kalidada, Raghuvamsa 1.1. Srirama Bharati, The Sacred Book of Four Thousand: Nalayira Divya Prabandham Rendered in English with Tamil Original (Chennai: Sri Sadagopan Tirunarayanaswami Divya Prabandha Pathasala, 2000) 112-114. 10 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page12 of 14 6 Hari Dev Kohl, Hinduism and Divorce: From Dharmasastras to Statutory Law­ a Critical Study vol.1 (Delhi: Decent Books, 2000) 114. 7 Katherine K. Young, "The Institution of Marriage: Mediation of Nature and Culture in Cross-Cultural Perspective." Paper delivered at the Illuminating Marriage Conference. Kananaskis, Alberta, 2005. 8 Kohl 2000, 112. 9 Manu 9:28. Patrick Olivelle, trans. The Law Code of Manu (Oxford: Oxford University Press, 2004) 157. 10 The classical paradigm for men included four stages: studying (brahmacarya); maintaining households (grhastya); partially withdrawing (vanaprasthya); and wandering as ascetics (samnyasa). The traditional paradigm for women included maidenhood, wifehood, and should the husband die first, widowhood or (very rarely, sati, self-immolation). These gender distinctions have changed dramatically in the modern period, as women have regained the right to religious knowledge of Vedic lore and rituals, to asceticism independent of the household, and to improved status by eliminating the view that widowhood is inauspicious and by establishing laws that forbid sati. 11 Manu 3:77 Olivelle 49. See Susan G.E. Frayser, Varieties of Sexual Experience: An Anthropological 12 Perspective on Human Sexuality (New Haven, CT: HRAS Press, 1985); G. Robina Quale, A History of Marriage Systems (New York: Greenwood Press, 1988), and Edit Turner and Pamela R. Frese, "Marriage," in Mircea Eliade, ed., Encyclopedia of Religon, vol. 9 ( New York: Macmillan, 1987). 13 "The variables of marriage are due partly to the freedom conferred by human nature, which makes adaptation possible. Marriage is constituted by the interaction of its universal features and its particular circumstances (the environment, new technologies, population increases or decreases, migrations, and so on). Analyses of specific societal types with distinctive economic features (such as hunting and gathering, horticulture, agriculture, pastoralism, mixed economy, trade, and industry) reveal the integration of these universals and particulars ... [Robina] Quale rightly points out that to understand how a marriage 11 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page13 of 14 system operates, it is necessary to examine its context as well as its contents. In other words, the universal features of marriage are embedded in complex ecosystems" (Young, 2005). 14 Every culture's definition of marriage contains not only universal and nearly universal features but also variable ones. "From one perspective, the variables make its definition distinctive. But focusing on the definition of marriage in any one society makes it hard to know which aspects are distinctive, or local, and which are universal or nearly universal. Patterns emerge only when two or more societies are compared. When only one society is considered, in other words, the variables can mask the universals. It could be argued that focusing on universals and nearly universals produces the methodological problem of `essentialism.' But that is a false problem for three reasons. First, there really is an empirical basis for the existence of these features. Second, using inductive reason to discern patterns is a fundamental characteristic of scholarship. And third, any phenomenon so common as to be universal or nearly universal surely reveals something basic in the human condition. Katherine K. Young and Paul Nathanson, "The Future of an Experiment." In Divorcing Marriage (Montreal: McGill Queen's University Press for the Marriage Institute, 2004) 46. 15 Srirama Bharati, The Sacred Book of Four Thousand: Nalayira Divya Prabandham Rendered in English with Tamil Original (Chennai: Sri Sadagopan Tirunarayanaswami Divya Prabandha Pathasala, 2000) 112-114. 16 Linda J. Waite and Maggie Gallagher, The Case for Marriage (New York: Doubleday, 2000). 17 P.V. Kane, History of Dharmasastra (Ancient and Medieaval Religious and Civil Law: vol.2 (Poona: Bhandarkar Oriental Research Institute, 1974) 527. . 18 Rgveda V.3.2 and V. 28.3 also refer to co-operation between husbands and wives in worship (Kane II: 429). Alternatives to this requirement do exist; if his wife dies, a husband may represent her presence by an image. 19 Satapatha-brahmana V.2.1.10. Manu 9: 45-46. Olivelle 158. 20 12 Case3:09-cv-02292-VRW Document302-2 Filed12/11/09 Page14 of 14 21 Manu 9:137. Olivelle 165. Manu 9:138 Olivelle 165. Manu 9: 96. Olivelle 161. See Kane II: 431-434 for textual references and variations in the order of what 22 23 24 is desired. 25 Kane II: 501ff. Kane II: 526. 26 27 Rgveda X.85.24 in Kane II: 526. Weddings were considered particularly dangerous transitions, which is why 28 they involved many rituals, some lasting several days. 29 Rgveda X.191.4 cited in Kohl 2000, *** 30 Manu 8: 389. Olivelle 151. See Lindsey Harlan and Paul B. Courtright, "Introduction: On Hindu Marriage 31 and Its Margins" and Ann Grodzins Gold, "the `Jungli Rani' and Other Troubled Wives in Rajasthani Oral Traditions," in From the Margins of Hindu Marriage: Essays on Gender, Religion, and Culture edited by Lindsey Harlan and Paul B. Courtright (New York: Oxford University Press, 1995) 3-18; 119-136. 32 Kane II: 516-526. 13

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