Sunday, 24 February 2013

Marriage and Democracy -- what's law got to do with it?

While Professor Julian Rivers was giving evidence to (or, as it looked to me, being interrogated by) the Parliamentary Committee for the Marriage (Same-Sex Couples) Bill, he made what seemed to me a rather good point, which was to question why there should be any state involvement in marriage at all.
One of the justifications for the government’s proposed change, which has been deployed by a number of politicians and pundits, is that the Church doesn’t own marriage, and indeed it doesn’t, as you can discover for yourself by reading Edward Schillebeeckx’s excellent Marriage: Human Reality and Saving Mystery (London: Sheed and Ward, 1976). The Church’s involvement in conducting weddings is a comparatively late development, and its role in legally defining the terms of marriage even later.
However, it would be equally true to say that the State doesn’t own marriage either — not if we think of ‘ownership’ in terms of it being the subject of a mass of laws and specialist lawyers, anyway. If Lynn Cohick, author of Women in the World of the Earliest Christians (Grand Rapids Mich.: Baker Academic, 2009) is to be trusted (and I can think of no reason why she shouldn’t be), few couples in the Roman world of the New Testament were actually married in a manner that depended on a formal and recognized legal process.
Similarly, in our own culture we have the myth of the ‘common law marriage’. Now of course such an entity has no legal status — that is to say, the courts will not admit or enforce any rights or claims on the basis of common law marriage. But the myth grew up no doubt in part because in the public mind there could be a recognition that a thing exists de facto even when it does not have any status de jure. Indeed in Australia (where things may also be different legally) a ‘partner’ in such a relationship is known colloquially as one’s ‘de facto’.
What this proves is that, rather like when traffic lights break down, the general public is actually capable of working out who goes with whom and on what basis, and of recognizing ‘marital-type relationships’ even where the law has no remit. Not least, we have seen this in the loose using of the term ‘marriage’ for the contracting of civil partnerships when they were first introduced.
Furthermore, the oft-quoted Marriage Act of 1753 was not about defining or controlling marriage per se but, as the full title says, “for the Better Preventing of Clandestine Marriage”. It is emphatically not the case, as sometimes seems to be implied, that marriage as we know it was somehow ‘invented’ at that point. Rather, the regulations regarding the conducting of weddings were tightened up, basically to prevent escalating property disputes arising out of rights conferred by the law itself on those who were actually married. (The irony is that the precipitating legal case took place in Scotland, but the Act did not apply there.)
Notice, however, it was the law’s involvement in matters of property which precipitated the law’s further interest in marriage. The problem (namely of unrecognized claimants on an inheritance) could presumably have been resolved by doing away with the inheritance right, which given that the government feels entitled to take part of that inheritance to itself anyway, by means of laws in its own favour, is not beyond imagining.
My thoughts on this were further prompted this morning by reading a comment by an Americanjournalist Patrick Pexton on the opposition of ‘religionists’ to same-sex marriage. “ We want to write words, read books, watch movies, listen to music, and have sex and babies,” he wrote, “pretty much when, where and how we choose.”
Now there might be those who want to argue that the freedom to have sex or a baby is not quite the same as the freedom to put on a CD or, indeed, to blog. Nevertheless, his plea has a certain merit. Why should the law regulate with whom I have sex (provided I’m not hurting anyone else and blah, blah, blah) any more than it regulates the music to which I listen?
And that being the case, why should the law regulate with whom I set up home? Specifically, why should the law regulate whether this domestic arrangement is something I want to call ‘marriage’ or something I’d rather keep to ‘shacking up’? The answer, it would seem from the civil partnerships legislation in this country, comes down to a few things like property, pensions and whether my partner can be treated as a ‘relative’ of mine in extremis. In other words, in practical terms it comes down to other areas where the law interferes. (Hence, if I have a baby, for example, the law insists I provide for it — something which society may feel is a better alternative than burdening the tax-payer, but which otherwise would depend on my exercising my freedom.)
Rather than extending the legal definition of marriage, then, why not tell the State and the lawyers it ought to be none of their business whom I marry, and demand that they sort out the law so as to increase, rather than further constrain, my liberty?
All this may seem terribly radical, but as has been observed in this debate, it used to work quite well until the lawyers got involved on matters affected by, but not central to, that which we call ‘marriage’. Deal with issues of property and pensions separately — for example through similar regulations to those governing civil partnerships — and let the people decide whom they wish to marry, and surely one achieves one of the chief goals of democracy, which, let us not forget, has been defined as ‘government of the people, by the people, for the people’.
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  1. I thought the testimony of Prof Rivers was excellent, and it has been published by the Jubilee Centre as one of their Cambridge Papers in Sept 2012.
    Although several of the arguments which he makes have been articulated by others, I think Rivers presents a very rational and powerful case for traiditonal marriage, which he asserts is made as a "non religious" case.
    That said, he acknowledges that in his view such a secular approach cannot exclude "the theological arguments.... and marriage as currently defined "derives at least a part of its social significance from its historic location in Christian theology".
    He then goes on to succintly summarise the classic Christian doctrine of God-given marriage, its symbolic natutre as a picture of the greater reality of Christ's Bride - the Church.
    Altogether a very powerful presentation.

    All this being the case I agree that there is very little reason, apart from a purely naturalistic or humanistic ideology, for the State to interefere with the free exercise of voluntary marriage by people if they wish to - let alone to redefine marriage for all.
    It is a presumptuous intrusion and marked by arrogant secularism
    and is a radical innovation unprecedented in our history.
    In fact it is an attempt to redefine marriage in a way that is completely new, something that it has never been in any nation or culture past or present.
    Thus, the State has traditionally only RECOGNISED the existing reality of marriage, and rightly made provision in law for property and pension rights etc of those within marriage.

  2. As a further comment on the Christian origin of marriage, we are indebted to Keith Sisman of Cambridge for pointing out on his blog the specifically Christian origin of the word 'marriage' itself.
    I summarise his comment:

    "The word marriage is French in origin and came to England after the conquest of 1066. The word means a husband to wife. It's introduction into what would become the English language was from the beginning a Christian word. As such it was used in the English translations of the scriptures. It was not and cannot be argued it was a secular word in English. When used in the New Testament, the word marriage was used by non-conformists such as the Lollards and found its way into the first printed English New Testament of William Tyndale, a dissenter, and from there into the King James version (Church of England) and has remained in our Bibles ever since.

    While the word marriage does indeed derive from French, this French word derives in turn from the Latin words ‘maritare’ (to provide a husband or wife for someone) and ‘maritari’ (to get married). The origin of the Latin predates Christianity as does the old English ‘wed’, and wedlock, but they still meant a husband to wife. Nonetheless, my argument here is that our word marriage, in England is not secular but Christian. Marriage is an English Biblical word; it came from the French after the conquest of 1066 and from there into the English language, but as a Christian word. Words such as Mohamed, Hadith, Nikah are English along with Koran (or al-Qur’an) being written in Arabic in the original. No one though would deny they are Islamic words.
    I want to stress at this point the word marriage unlike wedded is an English Biblical word, it is not secular nor pagan. The word marriage is found in both conformist and non-conformist English versions of the Bible, so is not limited to the Church of England (the established church), as such it is a Biblical Christian word rather than a church word. Marriage is God given and God defined. It is not a 'church' institution and hence no church or worldly organisation can change the definition of marriage."

    This specifically Christian origin of the word and the concept will perhaps explain precisely why it is now under attack by our secular government in the UK, and indeed elsewhere in the western world.
    Graham Wood

  3. The problem is the State. Were we to live in perfect harmony with the laws of nature's God, we would marry but there would be no legal framework surrounding the relationship. The State cannot get out of the marriage business. Instead, those in the marriage business (everybody) must get out of the State.

    I would not overly protest against State proposals to abolish the legal institution. Nobody would lose legal protection of natural rights. However, leaving the institution in place (but with a false definition) actively denies parents and children legal protection of their natural rights. Which is why the State is redefining rather than abolishing. We would be safer abolishing legal marriage.

    It is interesting to note that some of those who support redefining legal marriage do so while stating their belief that the State should have no involvement with marriage.

  4. The first miracle at Cana in Galillee. Where does that fit in?

  5. John - I've been thinking for a while that the best all-round solution would be for the law to stop using the word "marriage". But views are so polarised on the issue that it's not politically realistic, sadly. Nonetheless, see Keep politics out of marriage and links therein.

    Anthony Smith

  6. "This specifically Christian origin of the word and the concept will perhaps explain precisely why it is now under attack by our secular government in the UK, and indeed elsewhere in the western world."

    Paranoia and vanity are kith and kin...

    It is always someone else's fault why 'Christians' are side lined or snubbed... But perhaps it is time to ask why Christians lost their social and political power in the first place? Perhaps the fault could lie a litter nearer home? Perhaps there are things Christians have done - or failed to do - that has brought this judgement upon them..?


  7. The Russian Communists thought the same thing immediately after the revolution in 1917. In fact the Left in general has longed for 300 years to destroy the nuclear family as an inherently patriarchal and conservative institution. So the Communists followed their principles and effectively abolished marriage. It created such social havoc, they quickly changed their minds. The principle impact was that men had a lot of sex, but refused to take responsibility for the children they conceived. It created a vast hoard of unwed mothers who required support. Libertine attitudes about sex are mutually exclusive with maintaining a successful civilization, you see.

    Marriage ties men to their children and provides women with support. Pregnancy after all makes women dependent. The relationship an environment in which the difficult and expensive task of raising children may be performed. It forces people to sublimate their own desires for the greater good of others. It is this sense of obligation that is under attack. The Left would love to find some alternative to the nuclear family, but there isn't one. Is is trying to destroy the only thing that works simply because it sees the family as an obstacle to its envisioned future.

    Now the state has a vested interest in all this - both from the standpoint of a growing population and a competitive workforce. Children must be conceived and they must be civilized. Otherwise, the power and prosperity of the state will be affected. If people won't do it voluntarily, then eventually the state will make them do it. There will be a pro-natalist nationalist gov't come to power in response to shrinking population and declining prosperity and rising crime. And we have already had experience with such gov'ts. We don't want that again.

    Eventually this libertine attitude must be reversed. If it isn't reversed, the state will be consumed by outside predators. The only question is how much damage will be done, and whether it is reversible. Pay me now. Pay me later.


  8. Of course there are a number of things that have allowed a shift in national sexual practices which were unknown to earlier generations, including the early Soviet Union.

    One is massive technological change in the field of medicine. Prior to the advent of antibiotics, gonorrhea and syphilis were not just potential consequences of sexual promiscuity but effectively untreatable and, in the case of syphilis, fatal. By contrast, the advent of effective treatments has led to a lowering of restraint, as we have also seen recently in the case of MSM (men having sex with men) and HIV (see here).

    A second technological change is, of course, in the field of contraception, which undoubtedly increased the rates of extra-marital sex, particularly with the advent of the contraceptive pill in the 1960s, by lowering the risk of an unwanted child. Actually this was precisely one of the reasons why the Church of England opposed the availability of artificial contraception and what it warned would happen, back in its debates around the 1930s.

    The third technological change was the advent of legal abortion. I call this a technological change because although the technology to carry out abortions with minimal risk to the life and health of the mother was there before the 1960s, the fact that it was not normally legal kept the technology from public access. Once again, this added to people's sense of security when engaging in intercourse without a desire for conception to occur (usually, though not always, outside marriage).

    To these three technologies must finally be added a change in the attitude to, and provision of publicly-funded financial support for, single mothers. Previously, a child would have been regarded as the financial responsibility of its parents. Where this provision broke down there was the extended family to help and, beyond that, charities including the Church. In the post-war years, the removal of a sense of 'fault' in bearing an illegitimate child was combined with a policy of providing aid through public funds raised by taxation.

    That, of course, itself depends on three things. One is the presumption by those in government that this is a right policy to follow. The second is the payment of taxes. And the third is wealth - a society following such a policy must be generating enough wealth to pay for it.

    So whilst some may appeal to a change in human attitudes as driving the current changes in social practice, I would venture to suggest it is at least as much changes in human technology and the social economy that have actually driven the process.

    We are where we are because we can, in more than one sense, afford to be there for the time being.

  9. It needs to be said that the Soviet Communists nationalised women for two years. They were simply provided to male Party members for sexual slavery by the Cheka with no say whatsoever in the matter, save for a bullet in the back of the neck if resistant.
    Even the Red Terror could not sustain this situation, which had to be reversed in order to preserve a functioning society, let alone the revolution.

  10. Anon opined: "It is always someone else's fault why 'Christians' are side lined or snubbed... But perhaps it is time to ask why Christians lost their social and political power in the first place?"

    This is an entire misconception and misreading to the original post and the issue of State redefinition of marriage.

    Firstly, Christians had nothing to do with the policy being pursued by this government, and indeed are foremost in opposing it.

    Secondly, Christianity and Christians are not in the business of acquiring or protecting "social and political power". You appear to be talkng about a different religion entirely - certainly not Christianity, whose Founder stated unequivocally "All power is given unto me both in heaven and upon earth".