By Mike Appleton, Guest Blogger
“Let me not to the marriage of true minds admit impediments.” Shakespeare, Sonnet 116
The year 1648 saw the publication of Laws and Liberties of Massachusetts, a compilation of laws enacted by the colony’s General Court. The preface reminds us that “there is no humane law that tendeth to common good . . . but the same is mediately a law of God.” The list of capital offenses included adultery, idolatry, blasphemy, sodomy and witchcraft, with appropriate references to Leviticus, Deuteronomy and other books of the Bible.
And while the Puritan colonists were committed to their religious freedom, they firmly rejected the idea of freedom of religion, with its implication of doctrinal indifferentism. Banishment was the prescibed penalty for heresy, as carefully defined. Anabaptists and others opposed to infant baptism were likewise subject to banishment. A special section prohibited “those of the Jesuiticall Order” and ecclesiastics “ordained by the authoritie of the Pope” from even stepping foot in the colony, with death the penalty for repeat offenders. (In perhaps the earliest recorded example of compassionate conservatism, however, Jesuits who washed ashore through “ship-wrack or other accident” were permitted to remain until the departure of the next available ship.)
Yet despite the strongly theocratic foundation of their laws, the Puritans reserved to civil authority the solemnization of the most important relationship: marriage.
All marriages were required to be performed by a civil magistrate (the functional equivalent of a justice of the peace). The secularization of the marriage ceremony was no doubt a reaction, at least in part, to the English system of ecclesiastical courts and the clerical monopoly on performing marriages. Nevertheless, it marked a significant departure from the idea of marriage as the exclusive province of an established church.
By the time the Constitution was drafted, the understanding of marriage as a secular agreement under the law was well established. Writing twenty years earlier, Blackstone noted that “Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience . . . . And, taking it in this civil light, the law treats it as it does all other contracts.”
In his Commentaries on American Law, James Kent defined marriage as a “contract jure gentium,” requiring nothing more than the consent of the parties. “There is no recognition of any ecclesiastical authority in forming the connexion, and it is considered entirely in the light of a civil contract.” Chancellor Kent even acknowledged the peculiarly American doctrine of common law marriage. ” [M]arriage may even be inferred,” he wrote, “from continued cohabitation, and reputation as husband and wife.”
The treatment of marriage as a species of contract has all but been ignored in the current debate over homosexual marriage. Instead, opposition arguments, regardless of how they may be clothed rhetorically, are grounded in religious doctrine, blurring the distinction between marriage as a civil union and marriage as a sacramental covenant. The consequence, as one might expect, is a dispute that defies resolution because support for gay marriage is characterized as an attack upon freedom of religion.
Although the Constitution contains no mention of a right to marry, it has nevertheless been acknowledged by the Supreme Court as subsumed within the very notion of individual liberty. In Loving v. Virginia, 388 U.S. 1 (1967), it is called “essential to the orderly pursuit of happiness by free men.” The Court in Griswold v. Connecticut, 381 U.S. 479 (1965) deemed it part of a right to privacy that is “older than the Bill of Rights. . . .” And in Cleveland Board of Education v LaFleur, 414 U.S. 632 (1974), the Court noted that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
Any doubt as to whether homosexuals are entitled to the same liberty as heterosexuals in matters of marriage and family life ought to have been laid to rest with the decision in Lawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme Court struck down Texas’ sodomy statute. In the very first paragraph of that opinion, Justice Kennedy writes, in broad and elegant terms, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” It if means nothing else, Lawrence surely stands for the principle that the privacy of same-sex couples in the emotional and sexual expression of their bond is entitled to the same legal protection as that accorded to opposite-sex couples.
The primary function of law is the protection and regulation of relational interests within the larger society. The family is the primary social unit. Therefore, laws have traditionally sought to reflect a public policy that encourages the development of strong families as the foundation of strong communities. Same-sex families are entitled to the same legal solicitude, and for the same reasons.