Let's do away with marriage—at least as a civil institution.
In place of marriage as a union legalized by the state, why not just have it so that if two
people – male-female or same-sex – are of legal age and want to enter into a legal union, all they
need to do is to apply at the nearest courthouse for a license, sign it, pay the fee, and presto, they have a
legal union. No ceremony, no "I pronounce you"just a few minutes of paperwork.
For those – heterosexual or same-sex –
to whom a religious blessing is important, let them find a house-of-worship and have the union solemnized
according to their religious beliefs.
Both sides in the current debate over the definition of "marriage" and the legality of same-sex unions appeal to
history to booster their case. I suggest that history supports the idea of civil union, not religious union, as
the legal basis for two people to come together in binding, contractual union.
Let us be absolutely clear here, I am not advocating some sort of law that restricts "marriage" to male-female
unions, leaving civil unions for gay couples. Civil union, I suggest, should be the only legal union between couples,
gay or straight.
This proposal has the added advantage of separating Church from State, as it should be, and leaves the theological
debate with the Church where it belongs, rendering unto Caesar what is do Caesar, and to God what is do God,
however, the numinous may be defined. The State exists to protect the well being of her citizens, not to define
theological issues.
The term "marriage" carries a lot of baggage in today's culture; baggage acquired since the beginning of the
century, a good bit of it since World War II, and this acquired baggage causes no small problem in the current
debate. "Marriage" is the word used throughout history to describe a specific union between two people. However,
as used historically, the term, as we will see, does not necessary limit the parties in the "marriage union" to
male and female.
The historical record is quite clear, as a number of classical historians have demonstrated; until late Middle
Age, the marriage union was a civil institution, with or without the benefit of civil license. In Massachusetts
Bay, under the Puritans (remember the Puritans were Christians), marriage was strictly a civil contract until 1686.
For almost 200 years, from the 1690s to the 1870s, "wife sale" (to which the Church turned a mostly blind eye)
was a common practice in rural and small-town England. All a husband needed to do to divorce his wife was to
present her with a rope around her neck in a public sale to another man.
In view of the fact that marriage historically was more of a business arrangement to cement family, commercial,
or political alliances than a lovers union, most often it was the parents and not the couple who drew up the
"marriage contract". The role of civil authority was not that of sanctioning or sanctifying, but of enforcing
the legal rights and agreements specified in the contract. It should be noted that these rights had to do with
such things as commercial transactions and inheritance, and little, if anything, to do with non-discriminatory
benefits guaranteed by the state. For those who wished them, there were religious rites, which while providing
religious significance afforded no civil legal standing. The possible exception to this is where the State and
Church were one and the same, but even here marriage was primarily a civil union with the Church functioning as
the State.
Many will be quick to object that even with the "marriage union" being civil, it still was a contract entered into
between a male and female. Not so. As James Boswell points out in his well-researched Same-Sex Unions in
Premodern Europe (Villard Books, 1995) historical records document that homosexual marriage was legally
recognized in Rome from antiquity, with such recognition extending well into the Christian era. Further, there
is no question, according to historical evidence, that the Church blessed same-sex unions with a nuptial liturgy
if requested.
The marriage contract, until relatively recently, even within the Church, was viewed primarily as a commercial
contract, not a sacred commitment. The "blessing," or chief-end, of marriage being that of procreating children,
hence the necessity of marriage being between male and female, was not fully codified until The Council of
Florence in 1445, under Pope Eugenius IV. Even so, marriage as a civil contract remained the norm for many
more years.
Although the term "marriage" has been used historically to refer to a specific binding contract between two
people, perhaps even of the same sex, with or without the union being blessed religiously, considering today's
climate, I believe we would be better off separating "marriage" from "civil union" – leaving civil union as the
legal basis of the union, and "marriage" with its modern religious connotation for those who want a religious
blessing. Civil unions do not take one iota away from a couple's commitment to each other and history has
shown unequivocally that calling a union "marriage" does not guarantee the success of such unions.
Perhaps with the separation of "marriage" from all legal issues, both sides can be accommodated, and we can move
on to the really important issues facing us.
©Frank A. Mills, 2009