Marital Discord

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.

18 thoughts on “Marital Discord”

  1. Mike,
    Your blog was superb. I’ve saved it in my files for future use in debating the Gay Marriage issue. Not only did I learn much from it, but I think it is elegant in its comprehensive brevity. Thank you.

  2. “Thanks, Gene. I didn’t know that either. The Laws and Liberties is actually an interesting read. I didn’t mention it in the post, but the Puritan laws also permitted marriage to be imposed on a couple as a penalty for fornication, a sort of life sentence without the possibility of parole.”

    Here’s something I have always found fascinating, for no good reason (call it like a turkey who chases after brightly colored stones). The Hebrew Bible prescribes all sorts of laws – 613 of them to be exact (and many Hebrews are that exact!). One of them, contained in the fairly complex and various laws about rape, says that if a man rapes an unmarried woman under certain circumstances (these have more to do with whether they’re in a field or a town or a city or such), he HAS TO MARRY HER.

    Now this one got a negative review in a discussion group I participated in long ago, late 1980s. I found it about as bizarre as 2/3 of the other laws, but then it became comprehensible when I evaluated it within its own context. Marriage of daughters, among the people to whom the Bible was directed (men of means), was both a responsibility and a worthy deed, to be compensated. A man would get 200 zuzim for his daughter if she was a virgin, only 100 zuzim for her if she was NOT. Now this is interesting because there was no prohibition (among many other prohibitions) against a man having sex with his daughter. She was considered his property. But, obviously, if he had intercourse with his daughter, he’d be diminishing her marriage price and that was money out of HIS pocket. OK, enough of that before TalkingBack starts in on me on this thread.

    But my point (so often hard to find it, even for me): This law that surprised me at first but made sense to me afterwards was the law that forced a man to marry a woman if (a) he raped her and (b) she was unmarried at the time of the rape. Well it made sense, in that culture. She would become relatively unmarriageable to others after the rape, she might be pregnant after the rape, and her father wouldn’t want the problems in HIS family that resulted from the rape, because it wasn’t his fault.

    Anyway, back to the marriage thing — it’s not about god, really, because god never married Adam to Eve or vice versa, and none of the other marriages mentioned in the Bible have published contracts. Nor does the law set down what each contract is. I think sometimes one of the spouses would get a vineyard or something, who knows? But the marriage had to work for the property rights and the social contracts and the family relationship expectations of the society they were in.

    Now, here, for a marriage to work, it has to work with the property rights and the social contracts and the family relationship expectations of the society we are in. Well that’s a no-brainer.

    Now I’m coming close to the reason I put this up here on a thread that has nothing to do with my ordinary obsessions: the life interest.

    Mike Appleton, here’s an invitation (am I not generous, inviting you, on behalf of Professor Turley, to write an article about something I would love to see go into print) to guest blog about the LIFE INTEREST.

    Justice Kennedy wrote: “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.”

    A friend of mine, who has known for some time about this idea I keep throwing out there, the absence, in American law, of litigation of the constitutional “life interest,” says:

    “To my mind it reads life, not liberty—-yes, the liberty to live your life. But what is life except these points and more?”

    And then zoom back to the judge, David Lanier, in Tennessee, who did not deprive the women he sexually importuned of their liberty interests because they were free to say “no” to his advances: if he did not deprive them of property interests, and he did not deprive them of liberty interests, of what interests did he deprive them?

    The Constitution guarantees us that we will not be deprived of life, liberty or property without due process of law. OK, but we have learned that, for instance, we might still get “due process” even if we have been convicted and sentenced to death, while innocent, and the mere fact of our innocence does not mean that we didn’t get “due process” on our way to the gallows. We also learn that in the 200-300 years that “liberty interests” and “life interests” have been litigated actively (including such things as a prisoner’s property interest in a $12.00 hobby kit purchased through the mail, or a liberty interest in saying, “I love you, you love me, we’re a happy family,”) in all our federal courts, but “life interest” only seems to apply to death row convicts who have protectable “life interests” until the hour of their doom. (Also, “life interest” is a term of art in the probate law meaning a person does not own property outright but can make use of it and take profit from it during their own life-time, though unable to bequeath it in their own will.) So what is it? Does it simply not exist?

    Here’s my offering about the “life interest” as it applies to gay marriage. (Mind you, it is not my heart’s desire that the gay marriage issue bring the life interest into court somewhere; it is my heart’s desire that a children’s rights case do that, but nowhere is an attorney to be found who will devote the five years of hard work it will take to make that happen and etc. etc. ad nauseam…)

    It is a person’s right, upon reaching the age of majority, to marry or not to marry, as he or she chooses. Except for marrying someone already married, or marrying someone who is related by blood or adoption in certain very close relationships (sibling, parent, child, I think that’s about it), or marrying without fulfilling the state’s prerequisites for medical tests and paperwork, that right really cannot be challenged any more, except in states that have decided that only males may marry females, and vice versa. Marriage being one of the most significant parts of any person’s life, and being even a part of that person’s official identification, affecting passport and visa rights and even tax responsibilities, it is clearly a fundamental right. Since each state must recognize the marriages granted by all of its sister states, it also rises easily to the level of a constitutional right.

    Our ability to design our lives as we see fit, so long as we are not depriving others of their constitutional rights in the process, is, to my way of thinking, not a liberty OR a property interest, yet it is the strongest interest that a person may have short of an interest in not being killed outright. To may way of thinking, this kind of right is a LIFE INTEREST.

    Can we talk?

    You are the life expert. What say you?

  3. Blouise, good to know that not all religions have gone off the deep end.

  4. bettykath

    The Pilgrims had a similar point of view.


    Yep. As a Congregationalist I was taught that marriage was a civil contract and not a sacrament. Congregationalists were Brownist English Dissenters who established themselves in the Plymouth Colony (Pilgrims) in 1620 and were the second successful English settlement with Jamestown being the first in 1607. That is how long the view of marriage as a civil contract has been held/practiced in this country.

    Today Churches in the UCC can sanctify same-sex unions as they support “equal marriage rights for all people, regardless of gender”.

  5. This is where the Prez screwed up by indicating an evolution in his faith resulted in his present support of same sex marriage. What’s faith got to do with it (except as an attempt to appease religious opponents)? He should have said that as the leader of a secular institution — the federal government — his answer is governed by the Constitution.

    Another poster, Gene?, put it best: the Constitution trumps the Bible.

    Marriage is s social contract recognized by the state for many reasons not necessarily having to do with religion. For example, descent and distribution laws tend to keep property within a family. Even this accords with Hobbes’ and Locke’s proposition that the primary purpose of the law is security and stability, not the protection of freedom or equal opportunity.

    MA’s formulation, as noted by CLH, imbues same sex marriage Constitutional protections which removes its cause for existence from the states while permitting the states to regulate such marriages in the same manner that other marriages are regulated.

    The district clerk issued us the license but the Pastor married me and my wife — but a JP could have married us. And it will be the state — God forbid — that divorces us, not the church (mainly because of property concerns). It doesn’t take Solomon to split this baby. Marriage is a social contract recognized and given certain rights and responsibilities by the state that, for some but not all, has religious overtones.

  6. Screw the Puritans, they were not Framers of the Original Constittution, nor Framers of the 14th Amendment (Radical Republicans after the Civil War). What we need now are some Radical Republicans to offset the mindless prep school set of the likes of Willard (atta girl) Romney. Where would Willard have been at Valley Forge? Off in Philly having tea with Cornwallis. the present day Tea Party nuts would have all been Tories back in the day of our American Revolution. Of course Willard would have had 8 wives and sipped tea with Cornwallis while the Revolutionaires were fighting King George.

  7. The Pilgrims had a similar point of view. When William Bradford (not a minister) performed the first marriage between Edward Winslow and Susanna White, he noted that there was nothing in the bible that requires a minister to perform the ceremony. Winslow’s wife drowned in March while the Mayflower was in the harbor. White’s husband died about the same time of illness. White was left with a six year old and a newborn. They were married in May.

    Many early marriages, not necessarily Pilgrim, are noted in the records as “by contract”. Most of these are 2nd or 3rd marriages, usually of the woman.

  8. Ever felt like the chessboard in Alice in Wonderland?

    Excellent post Mike A…..

  9. Outstanding post. That is the clearest, most succinct, and convincing essay I’ve read to date on the legal issue of gay marriage, how the constitutional framers viewed marriage, and how it applies to christian theology in attempts to ban it. I’m all the way for gay marriage, but I have not always had a succinct legal arguement for why states should NOT have the right to decide ad hoc how they wish to recognize marrital institutions when debating the issues with armchair constitutional lawyers. I do now! (‘Cause I’m going to steal yours) =)

    There are, in my less than studied opinion, three primary reasons why there is such a fuss against gay marriage. The first is obivous, the christian faith. The second is an irrational fear of “Other”. The third is the propaganda machine willfully and gleefully manipulating faith and fear to divert people away from other machinations. If people are fighting over something that already has firm precedent, then they’re less likely to call them on other civil rights. It’s like a DA overcharging a defendent to try and obtain a plea bargain sentence that would have been sustained at trial. It’s as if they’re saying “Sure, we’ll relent on LBGT rights- eventually. While you’re arguing about that, let’s go ahead and knock out those pesky first, fourth, fifth, eigth, and fourteenth amendments. Oh, and pay no attention to the man behind that curtain.”

  10. Thanks, Gene. I didn’t know that either. The Laws and Liberties is actually an interesting read. I didn’t mention it in the post, but the Puritan laws also permitted marriage to be imposed on a couple as a penalty for fornication, a sort of life sentence without the possibility of parole.

  11. Great articlel Mike. I too did not have a clue how secular marriage in Puritan society.
    Great video clip!

  12. “Sorry, Roland, but upon further reflection, I concluded that the original version of my post was a tad too Zen.”

    I was left speechless. 😀

  13. Excellent post, Mike. Interesting bit about the Puritans and secular marriage. I did not know that. I also agree 100% that the contractual element has been underplayed and/or ignored in the media debate in favor of framing it as a religious issue. Apparently a rational legal argument for homosexual marriage doesn’t grab headlines like saying God is or isn’t on someone’s side.

  14. Sorry, Roland, but upon further reflection, I concluded that the original version of my post was a tad too Zen.

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