In their typically fumbling fashion, the people’s representatives in the Maryland General Assembly have been trying to figure out what to do about proposals to legalize gay marriage, set up civil unions, enact some limited version of the latter, reaffirm one-man-one-woman marriage, or just repair to the bar and forget about the whole thing.
Before the abusive automatic responses kick in, let me try to be clear about the essentials. I’m not interested in church so much as state.
Religious denominations determine whether marriages can be performed by their adherents. The Roman Catholic Church continues to decide whether a man and a woman can marry within the church and, divorce being ruled out, whether that marriage can subsequently be annulled. The Episcopal Church and the Southern Baptists can do the same. Synagogues, Orthodox, Conservative and Reform, will or will not countenance individual unions solemnized by rabbis, as they see fit. Muslims, Hindus, Buddhists, Unitarian-Universalists, Wiccans and the Universal Life Church’s mail-order clergy are equally free to go about their business. This is America, and the state doesn’t meddle.
(In Britain, having an established church has made things a little more complicated. In the 19th century, the Deceased Wife’s Sister Marriage act forbade a husband to marry the sister of his deceased wife, on the prohibitions of marriage within consanguinity of canon law and the Church of England’s ecclesiastical law. The Deceased Wife’s Sister act was not repealed until the early 20th century.)
I would, however, like to look at the frequently repeated statement that marriage has always involved just one man and one woman and therefore always should. If memory serves, the patriarchs and monarchs of the Hebrew Scriptures often maintained domestic arrangements that, if attempted today, might involve criminal prosecution and would certainly tie things up in probate longer than Jarndyce v. Jarndyce. *
The anthropological literature includes descriptions of numerous societies in which polygamy or polygyny has been practiced.
And contemporary sociologists coined the term serial monogamy, also sometimes called serial polygamy, to describe the exuberant careers of successive marriages and divorces that people increasingly undertake. (Repeat quietly to yourself: Elizabeth Taylor Hilton Wilding Todd Fisher Burton Warner Fortensky.) And let’s not even get started on the Henrickson family of HBO’s Big Love.
Even more, I’d like put up for examination another uninformed view that crops up occasionally: that the state has no business regulating marriage.
The state regulates marriage, for one, because marriage is and always has been about the orderly conveyance of property, and anyone who thinks otherwise has plainly never read Jane Austen. The law, as a relic of the practice of providing a dowry for a wife, used to hold that the woman’s property passed entirely into the man’s control at marriage. The state made that law; and when social circumstances changed, the state unmade that law.
The state also has an interest in protecting the welfare of its citizens, including those citizens who are minor children. So as part of the law of marriage and divorce, the state determines custody questions. Religious marriage involves principles of theology. Secular marriage involves the state’s maintenance of public order by the regulation of property and supervision of the welfare of children.
Maintaining civil public discourse doesn’t require people to hold one view or another about the terms of marriage and civil unions, but it does require them to be clear about the terms of the debate.
* Look it up yourself. Bleak House is in the bookstores. If you’re insane, you can read all 600-plus pages on Google.