By Mike Appleton, Weekend Contributor
“That no person whatsoever in this Jurisdiction shall joyn any persons together in Marriage but the Magistrate, or such other as the General Court, or Court of Assistants shall authorize in such places where no Magistrate is near.”
-Lauues and Libertyes of Massachusetts (1648) (Legal Classics Library Ed. 1982)
First Things is a highly regarded ecumenical journal on religion and society. Its editor, R.R. Reno, recently posted online a document entitled “The Marriage Pledge.” The pledge is a reaction to the expansion of same-sex marriage recognition across the country, a phenomenon which conflicts “with the Christian understanding of marriage between a man and a woman.” To protest these changes, Christian ministers who sign the pledge agree that they “will no longer serve as agents of the state in marriage” and “will no longer sign government provided marriage certificates.” As of this writing, the pledge has attracted over 400 signatories.
The Marriage Pledge is an unfortunate document, however, and more than a little ironic. It is ineffectual because it presumes a level of importance that the clergy does not have in the formation of lawful marriages, and it abandons religious believers in the process. Those who understand something of the history of marriage will correctly perceive the pledge as a form of witless moral witness.
We have learned from the oldest extant texts that the ancient world regarded marriage as a legal relationship that mixed elements of property, partnership and probate law within a framework of contract principles. Section 128 of the Babylonian Code of Hammurabi was explicit: “If a man has taken a wife and has not executed a marriage-contract, that woman is not a wife.” Remnants of the even earlier Hittite codes note that a man desiring to marry was required to pay a negotiated “bride-price” to the family of the proposed bride, and would receive a dowry from her family once the contract was finalized. A failure by either party to proceed with the marriage entailed the imposition of money damages. Early Roman law contemplated contractual arrangements between the families of the bride and groom. In the later years of the Roman Empire, marriage became more or less a contract terminable at the will of either party. Marriage was seen as a type of merger, and the applicable law concerned itself not with the spiritual commitment of the couple, but with the more mundane but highly important questions of legitimacy and bastardy, descent and inheritance and the preservation of family wealth.
For the early Christians, marriage was a state to be tolerated for those unable to undertake the more virtuous life of celibacy. “Marriage,” wrote Ambrose, “is honorable but celibacy is more honorable; that which is good need not be avoided, but that which is better should be chosen.” Those words were written near the end of the 4th century. A valid marriage required neither a priest nor a ceremony nor witnesses, merely the consent of the parties. It was not until the Council of Verona in 1184 that holy matrimony was given the status of a sacrament by the Catholic Church. And it was not until the Council of Trent almost three hundred years later that the Church abolished so-called “secret marriages” and began to mandate the presence of an officiating priest. This was at least partly a reaction to the Protestant Reformation and Martin Luther’s denial of the sacramental character of marriage.
The increasing formalization of marriage and its control under Roman Catholic and Anglican ecclesiastical law explain the legal treatment of marriage by the Puritans when they founded the Massachusetts Bay Colony. By insisting that the marriage relationship be defined and regulated under civil law, the early colonists were laying the groundwork for the modern notion of separation of church and state. By the early 1800s, Chancellor Kent could write, “No particular ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium , that consent is all that is required by natural or public law. … This is the language equally of the common and canon law, and of common sense.” James Kent, Commentaries on American Law, Vol. II, p. 75 (1827). To this day common law marriage continues to be recognized for all purposes in nine states and the District of Columbia, and for limited purposes in seven additional states.
The principle concern of the law is with the definition and regulation of relationships. The marriage relationship has been governed by variants of contract law since the origins of recorded history. Different religious traditions have imposed their own doctrinal systems on that relationship at different times and in different cultures, but it remains a secular institution under the law and the expansion of that relationship to include same-sex couples is a legitimate exercise of the legislative function. In my view, that expansion is also mandated by the protections afforded to relational interests under the Constitutution.
The presence of a minister or priest at a wedding adds nothing to its legitimacy under the law. Members of the clergy are authorized by statute to preside at weddings, but their function is identical to that of a notary public: to serve as a witness to the exchange of contractual promises, and to file prescribed paperwork with the state. Every religious denomination is free to promulgate its own rules for marriage eligibility. But a refusal to subsequently submit the forms necessary to record those marriages with the proper state officials accomplishes nothing other than to shift the consequences of their “clear action” to the members of their churches.
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