Patricia Nell Warren

Where Is That "Traditional Marriage" They Keep Talking About?

Filed By Patricia Nell Warren | November 13, 2008 10:00 AM | comments

Filed in: Fundie Watch, Living, Marriage Equality, Politics
Tags: civil marriage equality, marriage, marriage politics, same-sex marriage, traditional marriage

In 2005 I published a long article in Gay & Lesbian Review, about the history of marriage in the West. Researching it was an illuminating experience. It got me clearer about what the real issues are, and how they're being smoke-screened by the religious right. Today, as the Proposition 8 protests reverberate around the country, the highly emotional comments by our enemies are telling me something. A lot of these people who are so adamant about "protecting marriage" are very confused about what they think they're protecting.

Their confusion is compounded by the fact that conservative Christian leaders have lied to them about how "marriage" got to be what it is today.

Many Americans talk about "civil marriage" and "traditional marriage" as if they were two kinds of marriage. And yes, from the social standpoint, a couple does have two options. (1) They can do the government thing at city hall...or in front of a magistrate...or a justice of the peace. The government representative will witness the couple's spoken agreement in which they freely consent to be married. The spoken formula usually has no religious wording in it. Or (2) the couple can do the religious thing at home or in a religious venue with all the bells and whistles of their chosen faith -- Christian, Mormon, Jewish, Muslim, etc. etc.

But it's government, not religion, that makes the marriage legal and binding.

In a sense, it's silly to talk about "civil marriage" as distinct from "religious marriage" because all U.S. marriages derive their legality from civil law -- even the ones done in a religious setting. It's also silly for the religious right to claim that even "civil marriage" is sacred and controllable by them, when civil marriage actually divorced itself from religion several centuries ago.

In the U.S. and most Western countries today, marriage is officially regulated by government. Here in America, the power to do that was granted to the 50 states. The marriage license is granted by the county clerk or clerk of the court. And you don't get the license unless you jump through flaming hoops of health parameters and other kinds of scrutiny. Anybody who thinks they can do the religion part without the license part will soon get a wake-up call that their marriage isn't legal. In short, the religion part confers no legality by itself.

Nor does the religious part alone provide a couple with any of the 1001 benefits, perks and privileges that LGBT people would like to have. You only get that with the guv'mint license.

Marriage is a legal contract between two people. It devolves on consent -- and well it should, because some traditional religions did (and still do) have a habit of marrying people against their will. In the religious nuptial, the minister or rabbi or priest is just a stand-in for the state, witnessing the spoken agreement of the couple. Afterwards he or she files the marriage license for the public record. But he or she is just a paper-pusher deputized by the state. Government, not religion, is calling the shots here.

A Nightmare of Religious War

If marriage is so "sacred," how did it get to be guv'mint-regulated, along with agriculture and transportation and telecommunications and the stock market? Where is the "traditional marriage" that the church folks keep talking about?

And how in the world did people get so confused about what marriage really is?

To get clear about this, we can go back to an ugly and bloody time in Europe -- the 16th century. The Protestant Reformation and Henry VIII's Anglican revolt were ending a millennium of Holy Roman Empire. The Catholic Church was in shock -- it had cozily controlled all civil government through its claim to be the supreme authority on Earth, with its power to anoint kings and emperors. The Church had also controlled family life through making marriage a "sacrament" available only through the Church. Now, as more and more Europeans were embracing non-Catholic varieties of religion, Catholicism stuck its head in the sand and continued to insist that there was no legal marriage outside the Catholic Church.

Protestants reacted with understandable outrage. They began to demand a non-religious (i.e. civil) type of marriage as a solution, that would take marriage off the battlefields. Even Martin Luther admitted that this solution was needed.

Meanwhile, in England, after Henry VIII died, the newly established Anglican Church had replaced Catholicism as the state church of the land. So the Anglicans felt they had the right to tell the country's Protestants, Jews and other "dissenters" that they could only marry in the Anglican church. Result: rather than marry in a religion they hated, many English people simply didn't get married at all, or they celebrated secret unions in their own religions, which had no force of law. This meant that legally, they were "cohabiting," and their children were born "out of wedlock." Parliament finally woke up to the fact that nearly half its adult population was "living in sin." Social problems boiled up around children and property that English government finally realized it had to deal with.

As the Holy Roman Empire continued to implode, as old Catholic regimes were toppled by anti-clerical revolutions clear into the 19th century, the moment of truth finally came for marriage. Christianity realized -- very grudgingly and reluctantly -- that it could no longer control and monopolize marriage law. Indeed, the civil governments of these emerging modern nations were powerful now, more independent, flexing their muscles -- and they were insisting that marriage be politically neutral and available to everyone, regardless of belief.

Eventually, most European nations separated church and state to some degree, notably with marriage. Some, as in Scandinavia and England, did keep a state church but they still granted civil (i.e. government) marriage to anyone who wanted it. England herself stayed in stubborn denial of her people's sufferings till 1836, when she finally opened civil marriage to all except the royal family. Today most Western governments regulate marriage.

Today U.S. marriage, as a legal institution, is non-religious and secular. There's nothing "traditional" about it -- except perhaps that torturous "tradition" of a gradual secularization that has shaped it since the 16th century.

I find it ironical that conservative religions are having a heart attack over the desire of LGBT people to call their proposed unions "marriages." Non-Catholics had no problem plundering the word "marriage" from those hated Catholics of long ago. Indeed, when the horrible, cruel, gory, destructive, insane religious wars of that whole era were over, all the different Christian factions -- who had hated each other's guts -- were also still using the same word -- marriage. Even Jews, who were treated with extreme cruelty by many Christians, don't mind sharing the word "marriage" with them. Yet today in America, conservatives of all these religions get together to deny the use of the word "marriage" to gay people. I don't get it.

I also think it's ironic that conservative Protestants are such fierce opponents of LGBT right to marriage, since they were the ones fighting deserately for the right to marry in the 16th century.

The Mormons are a different case, since their religion wasn't founded till 1830. But here, too, is irony -- since their practice of polygamy was one of the reasons the U.S. Army marched against the Mormon territory of Utah in 1857. But even today, with monogamy now their policy, the Mormons' definition of "marriage" differs somewhat from that of standard Christianity. Yet they too would deny the word "marriage" to gay people. Go figure.

Government's Investment in Marriage

Why did government take on marriage? Because the modern emerging nations of Europe realized that even a secular state should have an interest in regulating marriage. The same was true of the United States after we got established.

Most of the state's interest in marriage relates to social issues, not religious issues. The state wanted to ensure consent, as well as stability for property ownership and inheritance. By passing laws on who could marry whom, the various U.S. states weeded out child marriage, consanguinity, bigamy and polygamy. STD and TB testing, and later vaccinations, was introduced to ensure that disease was not passed through marriage. Some states barred the mentally disabled from marrying, on grounds that they might not be capable of consent.

Now and then, the state came up with some really bad ideas for marriage. Like the so-called "eugenics movement," which prohibited marriage to people who were deemed "socially unfit" (many of whom were compulsorily sterilized). These requirements mostly ended in the 1930s because of the bad example of Nazi eugenics. Meanwhile, many states outlawed interracial marriages till the 1960s. Indeed, once upon a time, marriage as a legal institution was predominantly "white." It was illegal for black slaves to marry each other. With abolition of slavery, African Americans finally got access to legal matrimony. But today Native Americans are still battling a bad idea. The U.S. government denies tribal membership to any offspring of enrolled tribal members who marry outside their race or tribe -- a policy that many tribal people view as an effort to exterminate the tribes.

So...where is this "traditional marriage?" that the conservative religions say they're "protecting"? Well, the thing they talk about may be "traditional," but it's not marriage. Our society bases marriage on civil law, and the issue is about changing the laws.

What these religions are protecting is their beliefs and teachings about matrimony, which vary from religion to religion. They're also protecting what marriage-law experts call "the customs of their religion." Says, "A religious ceremony should be conducted under the customs of the religion, or, in the case of a Native American group, under the customs of the tribe. Religious ceremonies normally are conducted by religious officials, such as ministers, priests, or rabbis. Native American ceremonies may be presided over by a tribal chief or other designated official."

So Catholics can still get hitched with the nuptial mass that parish priests have been celebrating for centuries, dating back to the good old days of the Holy Roman Empire, when they thought they ruled the world. Mormons do their ritual thing in their temples, Jews in their synagogues. Protestants and Anglicans have their own variously established rubrics. For any and all religions in the U.S., it IS their absolute right to cherish and protect all these teachings and customs from any outside influence that they please.

Customs are a big part of "tradition," as every anthropologist knows. But customs aren't the law of the land. And customs -- however sacred they may look to those who observe them -- aren't a good enough reason to deny a whole group of Americans the right to legal marriage.

In other words, conservative religionists are putting enormous energy into protecting a legal institution that isn't even theirs to protect. They haven't owned it for centuries.

The Power of Hysteria

In the comments I read online, I'm seeing how extreme the "traditional" feelings are -- expressed by the many Americans who actually believe that their churches will see their "traditions" hi-jacked. They are panic-stricken that the government will force their ministers to perform marriages for those "degenerate queers" that they detest. One outraged Mormon who wrote to me was convinced that fascist thugs were going to break down the door of his local temple and force the elders to marry all the local gay boys.

So far it hasn't worked to assure these believers that this isn't going to happen. Indeed, LGBT people don't want their "traditional marriage." But our opponents are so stuck in hysteria over these perceived attacks on their religions that they're just not listening. On November 4, they stampeded like lemmings to the polls in California, Arizona and Florida, and voted the way their leaders told them to vote.

Indeed, few of us would even want to get hitched by any of those conservative religions -- many of which have a long history of sodomy-law enforcement in the past. If I were going to marry another woman today, the last place on Earth I'd want to tie the knot would be the Catholic Church, though this was my religion for some years -- especially if the parish priest and congregation were filled with hate for me and my partner because they were being forced.

At best, some of us might opt for having a "customary" nuptial service in gay-friendly churches that welcome us, like the Unitarians or liberal Presbyterians or liberal synagogues. Many of us might write our own rites, and invite some representative of the state to officiate in a wedding on the beach or at someone's home. But probably most of us will do like they're doing in Connecticut today, for the first time -- flocking to city hall.

Because that's what we want -- the guv'mint thing. The legal thing. The thing that hasn't been "traditional" for several centuries. The thing that the bureaucrats had to take over. Because if they hadn't, the Catholics and Protestants would still be killing each other over marriage -- like they're still killing each other over Ireland today.

Warren article on marriage history in Gay & Lesbian Review

Daily Kos discussion on confusion about what marriage is

U.S. marriage law

More on marriage laws

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Patricia, thanks for this. I always enjoy your history pieces. I'm currently battling an obsession with Tudor England, so I really enjoyed what you said about Henry VIII. Totally off topic . . . I dig that Elizabeth I never married or had children because she didn't want to be shackled with the burden of "traditional marriage."

I just don't get why all these conservative churches think they're gonna have to start changing their belief structure just because they government has finally pulled it's head out of its ass and realized that it has to treat all citizens the same. There is no state church in the US (at least not yet). Or are they really that ignorant of how the Constitution works?

We watched Elizabeth I last weekend and Elizabeth: The Golden Years just came today via Netflix! Woot!

I agree with both Bil and Serena that the Tudor period is fascinating -- and full of so much portent for today. So many key issues exploded then, that are still being fought out in 2008.

Just a comment on the legalities. It is not accurate to say that a marriage is "legal" only if it is done in accordance with a government's requirements. Rather, marriages that meet those requirements gain benefits and a defined status from the government. Marriages that are not done in accordance with the requirements are simply not eligible for those government benefits and status.

To put it another way, a gay or lesbian couple can get married in Canada, for example. Even in a state such as Oklahoma they could get married in a church that recognizes gay and lesbian unions. These marriages are not "illegal;" they are simply not going to be given the benefits and status of government-defined marriage.

I think I said the same thing as you do, but in a slightly different way. In any case, I'm talking mainly about the U.S. Here, no marriage is legal and valid without the marriage license obtained from the state.

As far as I know, there are no exceptions to that...except a common-law marriage that might eventually be accepted as a legal marriage because it met certain parameters, even though it was never licensed. And this would be true only in states where common-law marriages are still recognized.

Brynn Craffey Brynn Craffey | November 13, 2008 11:42 AM

Great post, Patricia!!!

Just to add an aside: I lived on a kibbutz when I was in my early 20's. At that time--and to this day!!--you can only get married religiously in Israel. (I believe this is true in many Arab countries, too.) There is NO civil marriage. The state, will, however, recognize legal marriages performed in other countries.

Which means, if a female Jew falls in love with a male Catholic, for instance, the two of them have to leave Israel to get married. When I was there, couples typically went to Rhodes.

Now here's the interesting part: in 2006, the Israeli Supreme Court ordered the government to recognize same-sex marriages performed abroad. According to Wikipedia, this was in response to a case filed by five male couples married in Canada.

So even though same-sex couples can't legally marry in Israel, if they get married elsewhere, the state will recognize them as married.

If this situation doesn't illustrate just how much marriage is a civil institution, I don't know what would!

Fascinating information. Thanks! So many modern nations have looked for different wrinkles on how to deal with the marriage question, with some of them still hanging onto state religion, like the Israelis. The Muslim countries that don't allow civil marriage are probably the ones that operate on sharia (religious law).

Rodney Hoffman | November 13, 2008 1:20 PM

You nicely elaborate on my favorite bumpersticker of this season: Civil marriage has nothing to do with your church.

For a competing view on the disjunction of civil and religious marriage, you might want to check out this recent article on SSRN, which explores the idea of marriage as a "wholly secular institution" and concludes that walling off civil marriage from religious consideration is neither possible nore desirable. It doesn't, however, believe that this conclusion necessarily cuts one way or the other in the marriage debate.

Andy, you mentioned this article in another comment, and I checked it out. It's asking some good questions, but I don't agree with where it goes.

From my point of view, the record of Western history already speaks for itself -- it shows a lot of massive efforts to disconnect religion from marriage, so that people who don't believe in religion at all, or in a country's dominant religion, can still have the benefits of marriage. People have risked their lives and their freedom to achieve this disconnect.

On the practical plain, is it actually possible to totally disconnect religion and marriage at every level? Maybe not 100 the sense that a portion of a country's population may always go on connecting religion and marriage in their minds.

Every modern Western nation has made its own distinctive tracks across this landscape. Since the 1970s, Spain no longer has state religion, or a fascist dictatorship that prohibited all marriages except the Roman Catholic variety. Today's Spain is a constitutional monarchy and a democracy, with a Socialist government now in power, and it has actually legalized LGBT marriage, as well as civil marriage for all who want it. Yet the Spanish paperwork process for Roman Catholics who marry is still different than it is for non-Catholics, showing a consciousness that Catholics are still a dominant social force in the country.

Personally I think it's still important to push that disconnect as far as possible. The abuses of the past, when religion got too much leverage over marriage, show us what can happen if we allow that excessive influence to happen again in the U.S.

I really enjoyed this article and felt there were many interesting points made about some groups' misunderstanding of the history of marriage, and the fear directed at the possibility of same-sex partnerships.

However, as an Irish person, (and this may be a matter of semantics, but nonetheless should be corrected) I felt I must point out in relation to your closing line- there have been no killings related to the Troubles since 2006.
Also, the problems to which you refer are not over Ireland, they are over Northern Ireland- which is a disputed section of land on the same island as the Republic of Ireland- a section with which there is no dispute.

While i understand your use of this analogy to illustrate your argument, I believe it slightly unfair to draw on such a negative part of the Irish experience to illuminate indecision in the US. Particularly when one bears in mind that civil partnerships (including same-sex unions) have been legal in Northern Ireland since 2005.

Laura, your point is well taken. As another person of Irish descent (my immigrant ancestor came here well before the Famine, because he was on the run from the British), I should have made it clearer that I was thinking more of the larger, longer Catholic-Protestant struggle, going back into the 1600s, that involved the whole country of Ireland. No offense was meant.

CONGRATULATIONS n a fine piece of history illumination! Being a historian by college degree, I especially enjoyed your research, and reasoning concerning this contested concept.
Several things to note.
--In most states the civil powers have given over their power to ministers, rabbis, imam, etc.
In Texas there is no questioning of the minister's final decision--which ruled out the abuses you mentioned. In Oklahoma all I had to do was prove that I had the legal standing to perform a wedding. In Louisiana I wasn't even a resident of the state and performed a legal marriage. I frankly don't see how the fear arose that religious figures would be forced to do a wedding. In one situation I refused to perform a "shotgun marriage" of two 14-year-olds. All the civil officials refused also. My power to do so was never brought into question. With the forbidding of a state church in the Constitution, I don't believe it ever could be an issue. So--again--what are they upset about? Ironically these same conservatives are pushing for reintroducing sectarian prayer into schools. That's what the Supreme Court outlawed and not prayer in schools. Growing up I lived in bible belt and suffered under Southern Baptist devotionals being read over the sound system. When I offered to do the devotionals and chose my own material, I was rudely refused. I latter applauded the US Supreme Court for making this decision.
--Recently the Permanent Judicial Commission of the Presbyterian Church (USA) made a beautiful ruling in a case in which a LGBT activist performed a wedding in Canada. She won her case when the court ruled that the Presbyterian Book of Order defined marriage as only between a man and a woman. Therefore, she did not break the rules because the ceremony was same-sex--and thus was not a "marriage" by definition and therefore beyond the purview of the church courts. I love it when the fundies have a piece of their own doing turning around and bite them on the ass.
--Also another irony of history. Henry VIII's reformation began to get him a divorce. I don't know what current policy is, but for many years the Episcopal Church in USA forbid the marriage off divorced persons. I do hope that has changed.

Thanks for all the interesting information. You are definitely right about the irony of Henry VIII's divorce. It was quite a while before the Church of England allowed divorces, and it's still a sticky wicket for the royals, as we know from Charles and Camilla.

Re "civil powers transferred to the state," I think you are referring to the manner in which the state deputizes non-government people to officiate at the wedding and file the marriage license. So, in your case, you acted as a deputy of the state in order to officiate.

However, according to and all other sources I could find, all 50 states require a marriage license, and the marriage agreement isn't legal and binding without it. In other words, the state is authorizing a couple to marry, and not without a certain amount of scrutiny first...which is why there is a waiting period to get the license in many states.

So the states have not given up their essential civil power to any religious authority. Example: a sheriff may appoint you as his or her can go out and arrest people, etc. but that doesn't make you the sheriff.

And -- since you mention divorce -- a couple who want to get divorced have to go to a civil process for that, since the state authorized the marriage in the first place. This proves how "civil" marriage itself is. If the state had transferred civil powers to any religious authority, then a couple would have to go back to whoever married them to get a divorce...and we'd be right back to where we were in England before civil marriage was allowed...the most notorious example being King Henry having to go hat in hand to the Pope to try and get his divorce.