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 Marriage's shifting status...and gay marriage today
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I am delighted to publish an original essay on the shifting status of marriage through history -- with an emphasis on gay marriage -- by Jim Peron, in which Jim concludes, "We may wish to return marriage to its original, private status, but until that happens, basic principles of justice require that gay couples have equal access to the flawed state system." I am among those who argue for privatization rather than the inclusion of more people within the current statist framework of marriage but I see the logic and good intentions of those who wish to have gay marriage legally recognized. This is an honest disagreement between people who wish to protect human rights and dignity... In the process of exploring this disagreement, Jim raises excellent points in a fascinating essay.

Jim Peron writes....

The idea that marriage is either a Christian, or God-ordained institution is, to use a term made famous by Jeremy Bentham, not just nonsense, but nonsense on stilts. Marriage predates the Christian church. The recognition of committed relationships has existed in all cultures, for most of human history.

Long before anyone claimed that Jesus had a church he attended a marriage supper—note he did not attend a ceremony. Marriage was common is Roman and Greek cultures though neither had anything to do with so-called Judeo-Christian values or beliefs. In both these cultures marriage was a relationship that was outside the purview of the state and outside all religious institutions. Couples were married by declaring themselves married. Similarly divorce was equally as unencumbered by the state. This is not to say there were no social customs involved, merely that neither church nor state were involved.

Roman marriage even allowed that the woman remained with her family, was “under the authority” of her father, not her husband, and kept inheritance rights from her own family, not from her husband. Rome was also relatively tolerant of homosexuality and it was only with the rise of Christianity that this attitude changed.

It was Constantine who, hoping to solve the Christian problem, ostensibly adopted Christianity and called for its toleration. Constantine was raised a Roman and Romans believed that one could be the follower of numerous religions simultaneously. He seemed unaware that Christianity held monopolistic inclinations in terms of deities and worship. For Constantine, Christianity was merely another sect that he could embrace, thus he continued to worship the pagan gods of his childhood. For him the embrace of Christianity was a political decision.

One of his first acts was to try and make these troublesome Christians reliant upon the state. He offered tax exemptions to Christian clergy, in the hopes that this would make Christians more inclined to support his government. To his dismay he discovered that there was no end to individuals claiming to be Christian clergy who came from very different forms of Christianity. In fact, what is called Christianity today was not dominant at the time and numerous Christianities were widespread. Constantine’s gesture became a dilemma because he had to decide whether to give patronage to all of these sects or only to select ones.

Historian Charles Freeman, in his magnificent history, The Closing of the Western Mind, writes that Constantine was worried these various forms of Christianity might undermine his government. Freeman wrote, “one might assume that Constantine’s real concern was that his policy of using the Christian churches as a stabilizing force for his regime was unraveling as their dissensions became increasingly apparent.” Freeman further wrote: “Once Constantine had provided tax exemption for Christian clergy, eventually including exemptions for church lands, it became imperative to tighten up the definition of ‘Christian.’” Constantine himself wrote it was necessary that “heretics and schismatics shall be alien to those privileges.” By the end of the century, Freeman says, “emperors were imposing doctrinal solutions that were backed by imperial edict.”

Prior to Constantine, the Roman Republic was not intolerant of same-sex relationships. When Abgarus, king of Edessa, incurred the wrath of Emperor Trajan, he arranged a relationship between his son Arbandes and Trajan. Ancient Roman texts describe Arbandes as “a handsome youth” who performed dances for the emperor and was “in his favor.”

When Emperor Hadrian lost his partner Antinous in a drowning accident, he had him deified and statues placed throughout the empire. The Roman philosopher and statesman, Cicero, wrote of a conflict between a father and son. Curio the Elder, did not wish to honor debts that his son, Curio the Younger, had accumulated on behalf of his male partner. Cicero described the two partners as “united in a stable and permanent marriage, just as if he (Curio the Younger) had given him (the partner) a matron’s stola.” The stola was a unique garb put on by married women to indicate they were no longer single. Cicero convinced the father to pay the debts.

Historian John Boswell says that: “It is extremely difficult to convey to modern audiences the absolute indifference of most Latin authors to the question of gender” when it came to sexual relationships. He writes:

“Marriages between males or between females were legal and familiar among the upper classes. Even under the Republic, as has been noted, Cicero regarded the younger Curio’s relationship with another man as a marriage, and by the time of the early Empire references to gay marriages are commonplace. The biographer of Elagabalus maintains that after the emperor’s marriage to an athlete from Smyrna, any male who wished to advance at the imperial court either had to have a husband or pretend that he did. Martial and Juvenal both mention public ceremonies involving the families, dowries and legal niceties.”

This tolerance began to erode when the Christian emperor, Theodosius II published a set of laws, now known as the Theodosian. He imposed the death penalty for pagans who offered sacrifices to their deities and he specifically outlawed same-sex marriage. He also attempted to solve theological conflicts within the Christian church by force of law. The Theodosian Code had 65 edicts directed against so-called heretics.
Under the rule of the Christian emperors things took an ominous direction in Rome. Boswell refers to it as “the increasing absolutism of Roman government…” resulting in:

“greater and greater totalitarian control over personal aspects of Romans’ lives. By the late fourth century many citizens could no longer choose their religion, their occupation, their place of residence, or even their favorite athletic team without imperial interference. Public aspects of religion and morals had always been the object of some governmental supervision, but the increasingly theocratic despotism of the later Empire often led to intervention in matters such as personal religious convictions or private sexual expression which would have been considered entirely individual under the earlier emperors.”


As the Roman Empire became increasing totalitarian it also became more intolerant. I find it of interest that while same-sex marriage was banned in the 4th century that homosexual prostitution was legal for a much longer period. Apparently the idea of a lustful relationship did not bother the legislators as much as a loving one. By the 5th century. homosexuality in all forms was made a crime.

The Theodosian ban on same-sex marriage, however, raises an interesting problem for religious conservatives, and 90% of the opposition to equality of rights for gay people is religiously motivated. One does not ban something that does not happen. This ancient ban flies in the face of the falsehood spread by the religious right that marriage has always been between one man and one woman. Their version of marriage is totally at odds with the historical record, but good believers twist reality until it fits their theology not the other way around.

Marriage, as the modern world knew it, had not previously existed. Not only did a man often have many wives, something even the Bible acknowledges, but rarely was love a factor in these marriages. Marriage was often a business transaction, where families joined together to make themselves better off. Procreation was the ultimate merger of these two interests. The child would be of both families and inherit from both.

The concept of marriage for romantic love was alien to the culture. It is not that love was never found, just that it was often found outside of marriage. Adultery was the means of seeking love.

Christian law professor, Daniel Crane, says that the control the Roman Church had over marriage evolved over time. The church “gradually began to assert control over marriage and divorce.” Crane writes that: “That as the power of the church grew, it gradually sought to establish control over marriage directly.”

It was only in 1545 that the Roman Church, at the Council of Trent, ruled that marriages were only valid if a priest, with two witnesses, performed the ceremony. The purpose of that was to strengthen the Roman church against the inroads being made by the Reformationists, who, it should be said, were more tyrannical and totalitarian than the Papal throne they railed against. The view of the Papacy was that only marriages sanctioned by them were valid. They pronounced marriage a church sacrament only which could not be left to the private realm, or to the state.

Protestants denied that marriage was a sacrament entirely. Crane writes that: “Scholars often maintain that the Protestant Reformation of the Sixteenth Century spelled the end of church control over marriage by desacramentalizing it…” When people speak of the Christian tradition of marriage they ignore this huge divide in Christianity as to what it means. While some wish to “return” marriage to the church they forget that “the Protestant social tradition views the state as the primary custodian of matrimony as a civil institution.”

John Calvin, the tyrant of Geneva, imposed the “Marriage Ordinance of Geneva” which mandated both a state permit to marry and a church consecration for it to be recognized as legitimate. This literal marriage of church and state is no surprise given Calvin’s theocratic tendencies. For Calvin imposing marriage laws was small change compared to burning competing theologians at the stake.

For Calvin marriage required the coercive power of the state to preserve its integrity. As the introduction to the book series, “Sex, Marriage and Family in John Calvin’s Geneva” makes clear:

The ecclesial and legal precedents of Geneva influenced societies wherever Calvinists lived, built their churches, ordered their lives, and shaped their surrounding societies. …what Calvin wrote on these subjects in Geneva helped shaped the familial, religious and civil life of many parts of the modern world.”


The authors of this series write that Calvin “believed that church and state should cooperate on these matters. He understood that the state had a right to be interested in the contractual and utilitarian aspects of marriage.”
Under Calvin’s government: “The normal punishment for premarital fornication… was a prison sentence of three to six days on bread and water. Major sexual deviations such as adultery and prostitution normally came to the Small Council for a full investigation and trial. Cases of notorious and repeated adultery could be punished with death sentences. So could rape,… bestiality or sodomy.”

The rulers of Geneva “tried to maintain a single style of domestic life for everyone in Geneva, usually the style of a family group consisting of a husband and wife, dependent children, and almost always young servants, living together in harmony in a single household.” Single men would be summoned before the rulers and asked why they had not married. Where prostitution had been legal, though regulated before the Reformation, after Calvin’s Protestants took over Geneva, it was banned. The government began holding trials on matters that were broadly seen as immoral including “dancing, seduction, obscene words or pictures, frequenting ribald plays, dissolute gestures or conduct, provocative dressing and makeup.” Calvin believed that law was “a halter to check the raging and otherwise limitless ranging lusts of the flesh.” One Catholic, conservative historian, goes so far as to claim that “Geneva under Calvin and later Besa and Farel actually became the first totalitarian state in Europe.”

As for the other leading Reformationist, Martin Luther, he believed that marriage was “of the earthly kingdom” and “subject to the prince, not the pope.” Luther wrote: “[S]ince marriage has existed from the beginning of the world and is still found among unbelievers, there is no reason why it should be called a sacrament of the New Law and of the church alone.” Mary Ann Glendon, in The Transformation of Family Law, warns that “although Luther and others had claimed that marriage was properly subjected to the control of civil, rather than church, courts, they never dreamed that it would be regulated according to other than Christian principles.”

By the 1600s most of Christian Europe, Catholic and Protestant, had imposed state laws regulating marriage.

One of the prevalent falsehoods common today is that government took marriage away from the church. But marriage was primarily a private arrangement, recognized socially but without legal requirements, until Christianity began flexing its muscles and imposing laws to monopolize its positions regarding marriage. By the end of the Reformation both Catholic and Protestant nations had made marriage a unique institution reflecting an alliance of church and state.

Classical liberalism, however, brought an entirely different view of marriage into the debate, one more in line with what it had been before this church/state alliance. Liberals saw marriage as a contractual agreement between two individuals. They pushed through a separation of church and state and they embraced a capitalistic economic system, along with accepting reason, not faith, as the ultimate authority in regards to finding truth.

Classical liberalism, or what is called libertarianism today, advocated the separation of church and state. At that time the idea that secular, or non-church, marriage could be allowed reappeared for the first time since Christianity had outlawed such things. Christians, unfamiliar with history, thus assumed that this was a new thing and an example of bad government interfering with God’s holy institution. It was, in fact, the private, contractual nature of marriage reasserting itself.

With the increased freedom that came with the rise of liberalism, economic progress and wealth accumulation became possible. Individuals could become independently wealthy, outside the necessity of arranged marriages. The role of marriage as a means of wealth accumulation began to disappear. Sociologist Barry Adams wrote: “Capitalism laid the groundwork for voluntary relationships based on personal preference, the precondition for ‘romantic love.’ Capitalism did not cause romantic love, it allowed it to flourish.”

Historians John D’Emilio and Estelle Freedman, in their history of sexuality in America, Intimate Matters, wrote: “Sons and daughters not only chose mates with less attention to property and family considerations but some young people even disregarded parental opinion altogether. Operating within a political climate that decried tyranny and exulted the rights of the individual some children married over parental objections while others failed to inform their parents at all.”

Evangelical author John Witte says this form of Enlightenment thinking began with John Locke’s Two Treatises on Government (1698) where Locke “had suggested that a natural and contractual perspective could be defended without necessary reference to spiritual or social perspectives on marriage. He had hypothesized that a law of marriage based on contract could be valid even if God were not viewed as the founder of the marriage contract, nor His Church engaged as an agent in its governance.”

Prof. Witte, in another paper he wrote, recognizes that a great problem today is that two, often conflicting traditions of marriage are now embedded in our legal system. He writes, “that modern Anglo-American marriage law was formed out of two traditions—one rooted in Christianity, a second in the Enlightenment. Each of these traditions has contributed a variety of familiar legal ideas and institutions—some overlapping, some conflicting.” These conflicting views of marriage thus determine who has the final say in marriage. As Witte puts it: “Which authority wields preeminent, or at least peremptory, power over marriage and family questions—the couple, the church, the state, or God and nature operating through one of these parties?”

The basic Catholic view was that marriage was a church sacrament under control of God and the church. The Protestant view was more along the line that marriage was a relationship with the entire community for the social good that it offered. Neither, however, allowed the idea that marriage was a private matter between the spouses. This is the reason Protestant Reformers made marriage a state institution.

There can be no question where classical liberals, the sons and daughters of the Enlightenment, stand. Witte correctly notes, “Enlightenment exponents emphasize the contractual (or private) perspective.” Where Witte errs is that he thinks that it was only in the last century that “the Enlightenment model has emerged, in many instances eclipsing the theology and law of Christian models.”

I would argue that, in the legal sphere, the Enlightenment model first began to emerge when the words, “We hold these truths to be self-evident…” were first penned to the Declaration of Independence. Witte describes the Enlightenment model as the voluntary bargain struck between the two married parties. The terms of their marital bargain were not preset by God or nature, church or state, tradition or community. These terms were set by the parties themselves, in accordance with general rules of contract formation and general norms of civil society. Such rules and norms demanded respect for the life, liberty, and property interests of other parties, and compliance with general standards of health, safety, and welfare in the community. But the form and function and the length and limits of the marital relationship were to be left to the private bargain of the parties -- each of whom enjoyed full equality and liberty, both with each other and within the broader civil society. Couples should now be able to make their own marriage beds, and lie in them or leave them as they saw fit.

In my mind this fits perfectly the ideal libertarian model. Since libertarianism is the natural outgrowth of Enlightenment liberalism, this should be no surprise.

Once classical-liberal thinking emerged it demanded reforms consistent with the recognition of individual rights and individual control over one’s life, liberty and property. Witte describes how this theory began systematically reforming the marriage laws that society had inherited from the tyrannies of the past:

Exponents of the Enlightenment advocated the abolition of much that was considered sound and sacred in the Western legal tradition of marriage. They urged the abolition of the requirements of parental consent, church consecration, and formal witnesses for marriage. They questioned the exalted status of heterosexual monogamy, suggesting that such matters be left to private negotiation. They called for the absolute equality of husband and wife to receive, hold, and alienate property, to enter into contracts and commerce, to participate on equal terms in the workplace and public square. They castigated the state for leaving annulment practice to the church, and urged that the laws of annulment and divorce be both merged and expanded under exclusive state jurisdiction.


The twin forces of capitalism and liberalism undermined the church/state alliance to a large extent. But, of course, marriage laws still existed and the state still worked to prevent marriages. The obvious example was that interracial marriages were largely banned in the United States. While the newfound freedom, following the American Revolution, encouraged romance-based marriages, legislation often restricted such marriages to members of the same race. Similarly, since the time of Theodosius, same-sex marriage was also forbidden.

From the moment the American founders adopted a classical liberal framework the legal system started shifting, expelling the pre-existing laws enforcing Christian morality. Those laws, not immediately repealed, were often simply ignored. As rigid as these laws were they could not long stand the triple threat of liberalism, capitalism and reason.

Since this unholy marriage between priest and politician took place things have, however, become very complicated. Marriage, being one of the first areas of human life put under the control of government, became a foundation for tens of thousands of other laws. Marriage is no longer just a relationship between two people but a relationship that is intimately tied to hundreds of laws and.

These other laws, to a large degree, insulate marriage laws from truly radical reform. By that I mean these other laws make it virtually impossible to privatize marriage. Hundreds, if not thousands, of other reforms would first need to be made before one could privatize marriage to what it once was.

Many of the people who claim they want the state out of marriage, at the same time, support laws to prevent “illegal immigration.” They argue that only “legal immigration” should be permitted.

But immigration rights are intimately connected to marriage laws. An American, who marries a foreigner, can apply for quicker permission to bring their spouse to the United States to live. If we were to abolish marriage laws, but keep immigration laws, this could not be. There are two ways of dealing with the problem. The government could say that no American can expect their foreign spouse to live with them in the United States, or the government can say that anyone that an American claims is their “spouse” can migrate to the United States. The second solution would be close to complete open borders. Yet the anti-immigration, anti-state marriage advocate can’t have both unless he is willing to take the first alternative: which is that no American can expect their foreign spouse to live with them.
Consider all the laws that are tied to marriage and you will see how marriage is one of the last areas of life that can return to its previous state of private contract. These laws include inheritance, property rights, child custody rights, taxes, social security laws, health care decisions, legal rights—such as not being compelled to testify against one’s spouse—immigration law, even zoning laws in some cities and towns.

I believe the right to live with one’s spouse is a natural right. Yet that right is denied to gay Americans with foreign partners. Many such Americans are forced into living in involuntary exile – told they must choose between their country, or their partner. And if their partner is from a nation that doesn’t respect gay relationships either, then they are effectively forced apart.
Marriage laws are legally tied to legitimate rights that people ought to enjoy. The fact that one’s spouse may make medical decisions for them is taken for granted by everyone, except gays. Consider the story of Patrick Atkins of Carmel, Indiana.

In 1978 Patrick went to Wabash College where he met his partner Brett. From that day until two years ago, almost thirty years later, they were a couple. They shared a home, a bank account, everything. Patrick’s mother, who is fanatically religious, didn’t like it. But she needed Patrick. He had taken some of her recipes and built a company worth millions of dollars. That she liked.

On a business trip in Atlanta, Patrick was rushed to hospital with a stroke. Brett rushed to his side. So did Patrick’s mother and father who asserted total legal control over their son. American law normally says a spouse will have legal precedent before parents, but American law also refuses to recognize gay relationships. The mother said that the mere presence of her son’s partner was offensive to her to and hurtful and ordered the hospital to ban him from visiting. The hospital, more humane than the mother, was horrified and allowed Brett to visit during non-visiting hours.

The family had Patrick moved to a nursing home, while mother took control of his bank accounts, business and property. She evicted Brett from the home the couple had shared, something she couldn’t have done if the relationship had been with a woman. The nursing home also found the mother to be unusually cruel and allowed Brett to visit Patrick. When mother found out Patrick was moved to her home and Brett was entirely banned from seeing his partner again. A doctor told the mother that Patrick would be better off seeing Brett. She coldly replied that she would rather he died than heal and return to a “sinful lifestyle.”

Brett went to court, trying to secure custodianship of his partner. The judge said that Brett and Patrick “lived together and have been in a committed and loving relationship” for decades. The court read out a letter from Patrick to his parents saying the Brett “is my best friend in the world and I love him more than life itself. I beg all of you to reach to him with the same love you have for me.” Patrick said if they got to know Brett they would “understand why I love him so much.” Patrick’s parents refused.

In court the mother testified that no evidence would ever convince her that “Patrick and Brett were happy together or that they have a positive and beneficial relationship.” She said that was not possible because it contradicts her own religious beliefs. The court ruled that there was nothing it could do to help Brett and Patrick remain together. Indiana law does not recognize gay marriage. Because of that, in cases like this, other laws, unrelated to marriage, but intimately connected to it, took precedence. Brett and Patrick were forced apart. Brett was evicted from his home as Patrick’s mother claimed it for herself. And all the assets that Patrick built up in the business were now under his mother’s control.

Can private contracts solve this problem as some libertarians claim? Janice Langehn and Marie Pond thought so. Together for 18 years they had signed numerous legal contracts to try and give themselves some semblance of the legal rights that straight couples get for a few bucks and an “I do.” The couple flew to Florida with three of their four children for a cruise. As they boarded the ship Pond had a massive stroke. She was rushed to Jackson Memorial Hospital. Janice and the kids followed only to find that were not allowed to be with Marie because they “were not family.” An employee of the hospital told Janice that Florida was not a state that recognized gay relationships so she could “expect to receive no information or acknowledgement as family.”

All the legal contracts Janice and Marie signed were faxed to the hospital. The hospital insisted that under Florida’s “promarriage” laws the couple were not spouses and could not be recognized as such. For eight hours Pond was dying and not allowed to be with her partner. A sister, who lived in the area, was granted immediate access because she was family. But Pond’s partner of 18 years had all the legal rights of a stranger. A priest was called to give Pond last rites and he was the one who smuggled Langehn into the room to be with Pond for the last few seconds of her life.

A web of legislation, all intimately connected to our marital status, exists. That makes the abolition of state sanctioned marriage one of the last reforms that one can expect to take place come a libertarian evolution in this country. So what do we do in the meantime, while people are being forced by State law into inhumane and intolerable situations?

We can either demand that these couples wait until our utopian paradise is instituted, at some unforseen century in the future, or we can accept that for the time being the State does control marriage much the way it controls other things we don’t think it should: such as schools and post offices.
There are many things that so-called principled libertarians tolerate today that they would rather not have. They don’t want state-run post offices. But that doesn’t stop them from mailing letters or receiving mail. They often run for offices which they believe ought to be abolished. Not only do they run for office, but they will also petition government for the right to do so, they may even go to court demanding that “right.” They may envision a system of private road provision. That doesn’t stop these principled libertarians from driving on state roads. Many of them send their kids to government schools.

What they recognize is that there are areas of life that are heavily monopolized by the state. They will use these monopolized services because other options don’t exist, or are clearly inferior, or too costly. One could live in the wilderness on one’s own land and hunt to survive, never setting foot on a government road or using a state service. It just isn’t optimal to do so. While many libertarians are accepting that they have to compromise their own principles due to the monopoly status of a government-provided service they turn around and demand that gay couples simply wait for the utopia that they promise will come some day.

If government declared that the roads were open to all, but libertarians, the libertarians would scream, even though they acknowledge there is no inherent right to a government provided road. If state schools were open to all, but libertarians, they would scream. If the post office refused to deliver mail to libertarians they would call it discrimination. And when the politicians pass a law restricting ballot access for libertarians they are actually willing to file law suits demanding that judges overthrow those laws, yet no libertarian would argue that there is a natural right to ballot access.

Libertarians would not accept this discrimination on the basis that there is no inherent, natural right being violated. Nor would they claim that such discrimination is “limiting the state,” as they do with same-sex marriage.
I contend that gay couples are in precisely the same situation. Government has sanctioned and controlled marriage. It built thousands of rights and regulations around it. No comparable private alternative exists that can do the same thing. The only way gay couples can be given equal rights before the law is to allow gay marriage. Waiting for utopia is not something libertarians are willing to do themselves and it is not something they should ask gay couples to do. We may wish to return marriage to its original, private status, but until that happens, basic principles of justice require that gay couples have equal access to the flawed state system.

Wendy McElroy - Thursday 16 July 2009 - 03:23:21 - Permalink - Printer Friendly

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