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.”
During the late 19th century, however, American courts and legislatures began to depart from the tradition of recognizing informal and common-law marriages. This was part of a broader attempt to exert more governmental control over who could marry and who could reproduce. By the 1920s, 38 states had laws prohibiting whites from marrying blacks, “Mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays,” or Filipinos. Twelve states forbade marriage to a “drunk” or a “mental defective.” A Washington state statute forbade marriage to any “drunkard, habitual criminal, epileptic, imbecile, feeble-minded person, idiot or insane person,” or anyone with advanced tuberculosis or contagious venereal disease. Interestingly, these prohibitions applied only to marriages that involved a woman under age 45, suggesting that marriage between such “undesirables” was fine as long as the couple was unable to reproduce.
After the 1920s, governments began to retreat from the non-traditional business of determining who was fit to marry or to reproduce. Statutes that denied marriage to epileptics or people with low IQs were gradually repealed. In the 1960s, the Supreme Court invalidated laws against interracial marriage and overturned the right of prison officials or employers to prohibit inmates or workers from marrying. In most states today, the only barrier to marriage for heterosexuals is if people are too “impaired by reason of mental illness or mental retardation” to make decisions about their property or person.
These changes amount to a reassertion of older traditions wherein the state allowed people to decide for themselves if they were married. But in the past 50 years, the concept of individual choice has been greatly expanded, with states and courts defining marriage as a personal decision that cannot be denied by parents or authorities even to groups that traditionally lacked individual rights, such as “unbelievers,” paupers, members of subordinate religions or races, or people confined to institutions.
In the middle of the 20th century, however, the state increasingly—and untraditionally—began using marital status as the main criterion for distributing social and economic benefits and determining people’s interpersonal rights and obligations. The Social Security Act provided survivors’ benefits for the wives and minor children of men who died before age 65—if the couple was legally married. The federal tax code was rewritten to provide special benefits to married couples. Private employers followed suit, using marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Legal statutes strengthened the rights of a spouse at the expense of other kin, including parents and adult children. Lack of a marriage license meant that courts, hospitals, or landlords would refuse to accept a couple’s claim that they were entitled to such privileges. This was a departure from the long tradition in which private, informal agreements to live as a couple entitled a man and a woman to public recognition of the rights and obligations attached to their relationship.
Today, the American government is much more insistent than it traditionally was that couples who want the rights and protections of a committed relationship must first get a marriage license and be formally married by a judge or member of the clergy. But the state is much more willing than in the past to guarantee that all individuals—except gays and lesbians—have access to these legal formalities. These two innovations—channeling more benefits through marriage than in the past while also repealing the denial of individual choice to most groups—have given gays and lesbians a strong socioeconomic incentive to demand access to marriage and a strong moral argument to press their case on the basis of equal justice. And contrary to “Conventional Wisdom,” their case is also supported by the Western legal and religious tradition, which has never made ability to procreate a precondition for marriage and which traditionally accorded legal rights to many unions that religious leaders considered illicit or immoral.
Thank you for this careful and informative piece. Here are a few supplementary remarks.
1. I noticed not long ago while browsing the web that here in Texas you still count as legally married as long you “agreed to be married,” “held yourselves out” as married in front of others, and lived in the state “as husband and wife” (http://www.co.travis.tx.us/dro/common_law.asp).
2. At least within Christendom, there have always been necessary conditions on marriage going beyond the couple’s consent. For instance, for the marriage to be valid, the members of the couple had to be sufficiently non-consanguous, not married to someone else, etc.
3. While you are correct that during Christian times, the ability to reproduce has not been essential while the ability to engage in conjugal relations (you use the term “sex,” but that term is anachronistic) has been, this should be supplemented by the understanding of conjugal relations as, basically, an “act which is suitable in itself for the procreation of offspring” (this is the formulation that current 1983 Catholic Canon Law uses; the 1917 used the same formulation). For an act to be “suitable in itself” for reproduction, the act must be the same kind of act as a successfully reproductive one would be (using the same organs in the same way, etc.).
Thus, if the woman lacked a vagina, the marriage would have been held invalid, even though oral and anal sex would still have been possible—oral and anal sex wouldn’t have been seen as conjugal relations, but as species of “sodomy.” Likewise, oral and anal sex would not have counted as consummation, and (according to a 1995 article by George and Bradley in the Georgetown Law Journal), this is how a number of U.S. states see it, too (or at least did in 1995).
Thus, on the standard understanding of conjugal relations in Christendom, persons of the same sex would be unable to marry because they would be incapable of consummation.
I am concerned about what appears to be an anachronistic teleology in this argument. The author claims that the shift to monogamy signals an abandonment of the reproductive criterion of marriage in favor of a less exclusive criterion of intimacy. This feels, however, like a retro-active genealogy constructed to give same-sex marriage a positive continuity with the past and thereby an added measure of historical legitimacy. Whatever occurs in its legal language, historical Christianity’s view of marriage cannot be dissociated from the ideal of the procreative union. On a mythical level it is inescapable. In Genesis, God creates a man and a women (not two “individuals”) whose first commandment—the first of all commandments—is: “multiply and replenish the earth.” I think the author ignores this overwhelmingly important doctrinal/mythological background when she looks at the history of marriage’s legal status in the West. A merely legalistic reading of the history of marriage is bound to miss what “goes without saying” in the context of marriage. Even so, the doctrinal/mythological context does assert itself in the legal language, as Pruss (see previous response) makes clear in the Catholic Canon Law’s language of “conjugal relations” and sex as an act “suitable in itself” for reproduction. The key point is that procreative union is a form given by (Aristotelian) nature or by divine decree on which to model human behavior. A relationship in which one partner is sterile could still be procreative “in spirit,” since sex would still follow the form of heterosexual reproduction. Such a relationship could remain valid in the Church’s eyes, not simply because it was sex, but because it was formally, if not effectively, procreative. By contrast, a marriage in which impotence prevents sexual intercourse could be overturned, since it does not achieve the form of reproduction.
For these reasons, I find the author’s contention that gays’ and lesbians’ right to “demand access to marriage [is] supported by the Western legal and religious tradition, which has never made ability to procreate a precondition for marriage” to be less than accurate. The “ability” to procreate was perhaps not necessary, but the form of procreation was. The author seems to imply that the religious tradition betrays itself at the historical point where the “original” Christian religion would have accepted same-sex marriage. I find this profoundly unconvincing. The more limited argument that the Western legal tradition—which is different from the “legal and religious tradition”—unwittingly anticipates an expanded notion of marriage that includes same-sex relations is more defensible.
All this sounds like a “negative” response to the author’s post, but that is only because I don’t think the “historical legitimacy” argument is the right way to approach the issue of same-sex marriage. A more convincing approach would be to argue directly from liberal principles. The state, as we theorize it today, is a collection of individuals, not of men and women. For the state to take sexual identity into account in its recognition of intimate relations is a theoretically unwarranted exception to the principle of individual equality before the law. The argument for same-sex marriage is thus the same argument for equal opportunity. If sexual equality before the law is a good all-around policy, then why not extend it to the legal recognition of all responsible, intimate relationships of care? In arguing for same-sex marriage, it is the new values of a better, liberal society that should be stressed, not a covert and questionable continuity with the past. To be sure, the reconceptualization of marriage in liberal terms may, in breaking with the “venerability” of the past, diminish in some degree the aura of marriage as a “sacred” bond. What is gained, however, is a social bond equally available to all individuals in responsible forms of consensual intimacy.
In the end, I think that that the most consistent position in relation to same-sex marriage is that proposed by Tey Meadow and Judith Stacey in another posting in this series. The state should get out of the business of marriage definitions altogether, and instead focus pragmatically on supporting the “multitude of relations of care” in our diverse society.