The recent California court ruling in favor of same-sex marriage has elicited a new round of warnings about the threats to “traditional” marriage. Marriage, say foes of the ruling, has always been a union of one man and one woman, with procreation as its central purpose. And Christianity in particular has historically surrounded marriage with sacred ceremonies, reserved for those who understand its solemn meaning, they contend. Compelling either church or state to accept the validity of same-sex unions would force these institutions, in defiance of tradition, to condone marriages of which they disapprove.
But these arguments rest on a misunderstanding of the unique legal and religious history of Western marriage. It is true that Western law and religion have long held that marriage must consist of one man and one woman. But this represented a profound break with tradition. The most commonly preferred model of marriage through the ages (and the type of marriage mentioned most often in the first five books of the Old Testament) was not one-man, one-woman, but one-man, many-women: polygyny. Even where polygyny was not the norm, a man whose marriage did not produce a child was traditionally allowed to either divorce his original wife or add another wife or concubine to his household.
The establishment of monogamy required the Church to deny that procreation was central to the definition of marriage. In fact, one of Christianity’s major innovations was its insistence that a marriage remained valid even if the couple could not reproduce. The church would overturn a marriage if the man was impotent, but not if one of the partners was sterile.
This principle became the foundation of subsequent Anglo-American law. English and American courts traditionally voided a marriage if a person was incapable of sexual intimacy and had hidden this from his or her partner. But they never made the validity of a marriage dependent on the ability or willingness of a couple to reproduce. As a New York court ruled in 1898, “it cannot be held, as a matter of law, that the possession of the organs necessary to conception are essential to entrance to the married state, so long as there is no impediment to the indulgence of the passions incident to this state.” The ability to have sex, not to reproduce, was the primary foundation of marriage in Western religious and secular traditions alike.
Nor did Christianity insist that marriage be approved by church or state. Here the Church was hewing to an even older tradition. In most ancient societies, marriage had been a private contract between two families. If the parents agreed to the match, that confirmed its validity. Those individuals who, for whatever reason, could marry without consulting their parents did not need anyone else’s permission. Long before Christianity arose, the Roman state incorporated this principle into its legal system. In the Roman Empire, if a court had to decide whether a marriage was valid and whether the partners or children were subject to the rights and duties attached to marital law, it did so on the basis of the couple’s intentions. If a couple regarded each other as husband and wife, and neither was a slave, their marriage was deemed valid.
After the fall of the Roman Empire, one early pope suggested that the Church depart from tradition by decreeing that a marriage was valid only if it took place in church, with the approval of a priest. When his advisors pointed out that this would render the majority of Christians illegitimate, the pope backed off. For the first 16 centuries of its existence, Christianity held that the validity of a match was determined by a couple’s stated intention to be married, rather than by any formal ceremony or licensing process. This doctrine of consent took the traditional acceptance of private agreement to marriage to a new level, requiring the Church to support the validity of a marriage even if the parents had not given permission. If a man and woman claimed they had exchanged marital vows—out by the haystack or behind the stable, without any witnesses—then they were validly married in the eyes of the Church, unless they were slaves or non-believers.
In 1215, the Church decreed that a “licit” marriage required that the bride have a dowry (which implied parental approval), that the banns be published three weeks in advance, and that the marriage take place in a church. But an “illicit” marriage was equally binding in the church’s eyes: the children were seen as legitimate; the wife was entitled to her “widow’s third” of the inheritance; and the couple was subject to the same prohibitions against divorce as a couple married in church.
Secular authorities were similarly accepting of informal marriages. Not until the 16th century—and not until 1754 in England—did states require couples to obtain a license to marry. And even after governments began requiring couples to register to marry, they did not initially enforce this. In America, authorities traditionally “inferred” marriage from a couple’s behavior rather than demanding a public ceremony or a license. Until the latter half of the 19th century, American courts routinely ruled that cohabitation was sufficient evidence of a valid marriage. When one woman in New York laid claim to her brother’s estate because his “widow” had not had a registered wedding, the judge indignantly declared that “society would not be safe for a moment… if an open and public cohabitation as man and wife for ten years…could be overturned.”
Tags: civil liberties, constitutional religion, gay marriage, marriage, prop 8, stephanie coontz
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