Thursday, February 19, 2009

Marriage: Part 1

Before you begin, you should know this is a long post, and it’s pretty weighty. If you like, you can skip all the details and just read my findings [HERE].


I began to explore the topic of marriage in earnest when the debate of equal rights for gay and lesbian couples reached a peak of intensity during the fall of 2008 as a result of the pending vote on California Proposition 8. This initiative, like others in states around the country, sought in essence to define the term “marriage” as it is recognized by the state to mean a marriage between one man and one woman. In an earlier exploration of the marriage question in California [HERE], I went back to the beginnings of the issue in California, in an effort to get some deeper perspective. In doing that research, I was introduced to both sides of this now contentious argument, and found that, on the surface, both sides had merited concerns. I committed at that time to dig even deeper, to see if I could come to some conclusions about the nature of marriage in society--and, in particular, American society. The idea was that understanding both the history and purpose of the institution would lead me to better be able to see how the two seemingly irreconcilable points of view on the topic might be harmonized.

In this entry, I will attempt first to lay an historical foundation from what literature I could access conveniently. I will make determinations along the way that will set the stage for an opinion which, in the posts on the topic that follow, will demonstrate how the idea of marriage might be viewed so that both sides’ concerns are given due weight and consideration. In writing this, it is not my intention to present myself as an authority on the subject, nor do I suggest that the findings presented here are based on perfectly correct information. If you should find me in error, please say so; I will gladly reinterpret any findings improperly founded.

Finally, it is important to note that this work represents my own casual research on the topic, and I have made no effort to provide all the documentation necessary to support my findings. My exploration of this issue is not to support a point, but to come to one. I would describe my views as emerging here because, seeing as I do legitimacy to the seemingly contradictory positions of this debate, I will not feel firm in my opinions until I can clearly see how they can be merged into a reasonable paradigm that allows all the points I see as valid to complement each other without tension. I’m putting my views on this topic in a public forum not to press a point, but to invite considered discussion with the intention of creating that paradigm. Those with already well entrenched views on this topic may feel that my attempts to justify a contrary position are incorrect on their face. I encourage them to look beyond the surface, to put aside their notions of right and wrong for the moment, if they can, and look at the findings on their own terms. Later, we can explore together whether, or how, things can be reconciled pragmatically.


1. The historical record supports marriage as first and primarily an institution designed to protect property and resolve matters of inheritance and lineage.

2. The recognition of marriage in western Europe (where American marriage practices evolved) has a basis in Common Era history as a religious institution (and even earlier in Judaic practice), but at no point in the historical record is there evidence to support the contention that marriage was viewed primarily as a religious commitment by the general population.

3. Although we accept governmental oversight of marriage as the norm in modern society, its original involvement was the result of attempts to restore the institution to its standing as an informal social arrangement.

4. American marriage tradition was based popularly not on a religious model, but a secular one.

5. Although there is precedent in Roman times for the recognition of same-sex relationships as a form of marriage, there does not appear to be explicit mention of the validity of such relationships in later writings, religious or secular, in the Common Era.

6. Writings on marriage, when viewed in context, are clearly based on a long accepted colloquial definition of the term as referring to unions between men and women, although there is no particular mention of the term as restrictive to one man and one woman alone.


Marriage as a social institution predates recorded history, so it is not perfectly clear how it came to be originally. It seems to have emerged as a civil arrangement several thousand years ago, about the same time as the recognition of private property ownership. The earliest recordings of marriages indicate that they were used as a way to expand or consolidate assets from different clans or family groups, such as we in the west recognize through the ritual of dowry. Theories about primitive marriage suggest that such unions were polygamous; indeed, there is a strong basis in recorded history in many cultures for polygamy as accepted practice. Religious guidelines were not part of marriage before the Common Era, but similar codes were thought to have developed in primitive marital arrangements in order to protect assets by restricting wealthy individuals from marrying outside their faith. This tenet still exists tacitly today in Islamic practice, as described in the Cairo Declaration of Human Rights in Islam, which confirms that men and women should have the "right to marriage" regardless of their race, color or nationality, but not religion.

Marriage in the ancient cultures that provided the evolutionary basis for our own current rituals was largely viewed as a private matter, and neither government nor religion played an active part in its formation or dissolution. In Ancient Greece, for example, there was no specific civil ceremony required for a man and woman to marry. Only a mutual agreement was necessary. Similarly, Roman marriages (and divorces) involved no specific approval either by government or religious entities, although at least one form of the ritual required a ceremony and witnesses to make clear the transfer of the woman’s rights of inheritance from her old family to her new one [1]. It would seem that only Judaic practice viewed the institution of marriage as anything other than a civil arrangement. In Judaism, marriage is viewed as a covenantal bond in which a man and a woman come together into a relationship in which the Creator takes an active role.

Even among Christians, marriage was considered a private matter, established by mutual consent and a declaration of intention to marry, and consummated by the physical union of the parties. The Roman Catholic church technically required either a banns of marriage (a public announcement) or a license in order to allow any canonical objections to the union to be voiced, but ignoring these did not affect the validity of the marriage in the eyes of the church until the Council of Trent in 1566 decreed that a marriage would only be recognized if it were officiated by a priest and witnessed by at least two people. [2]

The tension between the Roman Catholic and Protestant churches during the time of the Reformation that ultimately resulted in this catechism is also responsible for the introduction of governmental oversight on the issue of marriage. John Calvin, known for his outspoken critiques of catholic usurpation of marital jurisdiction from the secular community, wrote and enacted the Marriage Ordinance of Geneva, which necessitated "the dual requirements of state registration and church consecration to constitute marriage". That Calvin would require church consecration as a criterion for a legal marriage is curious, in that he defended repeatedly the principle of free consent in marriage his works and sermons. The Marriage Ordinance was enacted for use in Geneva and its surroundings in the late 1540s and 50s, and outlined many of the processes that are part of civil marriage law today. Among these were the requirement to register with civil authorities and the formal grounds under which a marriage could be annulled or dissolved (matters that were to be dealt with in civil, not ecclesiastical court).

Government control over marriage was further tightened in England as a result of Hardwicke's Marriage Act 1753 [3]. This legislation, the result of a dispute about inheritance in a Scottish common-law marriage, swept away the legal validity of informal marriage and created vast divide between the legal and social definitions of the institution. Although this Act did curtail the nefarious practice among the elite of using bigamous marriages to obtain protection from creditors, the effect was egregious for the working class. Women, especially, found the new law harsh, for many found they were deprived of financial and inheritance protections offered by prior practice. As a result, a great many couples traveled to Scotland or other parts of Great Britain to be married where the Act was unenforceable. It was not until the Dissenters' Marriage Act of 1836 that citizens were permitted to marry in their own chapels or by a civil contract.

The American colonies rejected the requirement of a religious ceremony as part of marriage, but retained the custom of a ceremony, religious or otherwise. The ancient Roman concept of marriage by agreement and cohabitation was adopted by early American courts as valid under the common law although, by the 1800s, state legislatures began to enact laws expressly to prohibit marriage without an observed ceremony and other requirements. Despite this trend, the validity of common law marriage was upheld by the United States Supreme Court in Meister v. Moore (1877).

In the next post, I'm working to build on the findings of this post to assess the arguments of both sides of the marriage debate in the U.S.

[1] It is worth noting that the first recorded use of the word "marriage" for the union of same-sex couples seems to have come during Roman times. Such relationships were common in the Roman Empire, although it seems that the term “married” was rarely associated with them. I am continuing to research what terms, if any, might have been used to describe same-sex relationships. If anyone wants to go digging for this, I'd be grateful.

[2] Separately, the council also defined marriage as “The conjugal union of man and woman”. See [HERE], Pg 230.

[3] See [HERE], Pg 62.


Mrs. Chili said...

While I appreciate that there needs to be some place to start this conversation, I do hesitate over the idea that what's come before should be the determiner of what comes after. I'm not entirely certain that "precedence" is enough here...

Wayfarer said...

I appreciate where you're coming from here, Chili. My point in starting where I did is not to say "because it was thus, it must now be so", but to see if the arguments that say "it was thus, and that is why we think this way" hold water.

Fran said...

I find the exploration of history helpful. Those who oppose marriage for same-sex couples use an historical argument. Sort of an "it's always been this way" stance. Your history seems to imply that marriage has (mostly) been an institution for men and women. However, it has only recently (in historical terms) become a religious institution. And, it began as a means of controlling property. Both of these facts make the only for men and women argument less clear. Thanks!