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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