Wednesday, December 08, 2004
the Marriage Challenge Developed
Iain T. Benson ©
Changes in Society Depend on Other Changes First:
Most changes in society
happen because something else changed first clearing the way for later changes.
Thus, to give a recent example, movements for changed divorce laws happened
because the widely held views about the nature of marriage and procreation had
already begun to change. Changes since have, in part, depended for their
arguments upon the earlier shifts already being in place.
Once divorce laws were loosened up permitting more ready access to divorce and
the legalization of contraception permitted increasing separation between human
sexuality and procreation, society having accepted marriage itself began to
Whereas, originally, childlessness was an aspect of a few marriages and usually
not by choice of the couples, children came to be seen more and more as a
chosen (therefore optional) product of marriage not a natural or even a necessary
aspect of marriage. One could always be married “without children” but such a
state was generally seen as deficient or lacking in key ways and all marriages
commenced by asking God to bless the marriage with offspring.
With children rendered optional, other changes would soon follow. Promises that
the marriage be “until death do us part” - - always a part of the religious
conceptions of marriage - - went by the wayside. Religious groups, for the most
part, came to accept the broader social availability of divorce as well as
contraception that emptied marriage of two of its historically most central
concepts. The language of marriage also changed and came to be applied in ways
that showed the loss of the core conceptions of marriage: this is seen clearly
in how the term “common law” changed in relation to marriage.
The term “common law marriage” historically refers to forms of marriage which
were valid under canon law in the middle ages, and were commonly thought, until
the decision in R v. Millis (1843) 8 ER 844, to have been co-opted into the
common law of England around about the 14th c.
Canon law recognized the marriage “per verba de praesenti”, the exchange of
vows between the individuals themselves; and the marriage “per verba de futuro
subsequente copula”, a mutual promise to marry if the parties subsequently had
intercourse on the strength of that promise.
The role of a priest in the marriage ceremony was merely to solemnize the
contract. The absence of a priest did not invalidate a marriage, as the party’s
agreement had been witnessed by God; the presence of the priest merely served,
at canon law, as evidence that the agreement had in fact taken place. In order
for a marriage to be valid, the parties also had to have capacity to agree;
capacity to marry (male and female, not already married, not within prohibited
degrees of consanguinity etc.), and had to hold out their married status
Such forms of marriage ceased to have any validity when marriages first came to
be regulated by Parliament in the early 19th c. Still, however, the religious
and the State conceptions were the same or sufficiently similar that there was
a more or less seamless inter-relationship between religions and the State
What then happened to marriage in the 20th Century was that the idea of
“common-law marriage” containing the intentionality of permanence and fidelity,
previously consistent with religious understandings was turned on its head.
Soon, the benefits (and responsibilities) previously attached only to marriage
came to be attached to those who lived together for a sufficient number of
years in a “marriage like” relationship. With the numbers of people (the 1960’s
had done their work in “liberalizing” attitudes) entering into these
relationships, arguments for financial protection and fairness on breakdown
etc. seemed to call for legislative responses.
As Joni Mitchell put it in one of her songs: “we don’t need a piece of paper
from the City Hall, keeping us tried and true….” Soon, the State had to invent
a mechanism to keep such non-married people “tried and true” at least
financially and it came up with what was confusingly called “common-law
marriage” which resembled intentional marriage as falling off a bridge
resembled diving off one. Both ended up with legal responsibilities but since
those who simply “shacked up” usually never intended to be in it for the
long-run, the State had to do something to govern the results of such failed
relationships and the children that were often the products of such “de facto
Religious groups, at the time that State recognition of de facto unions were
first put forward in the 1970’s, opposed such recognitions particularly as
“marriage like” saying they would threaten (or further weaken) marriage itself.
They failed to convince the legislators.
The better term for these “living together but not married” relationships ought
to have been “de facto unions” which is what they are – they are not
intentional marriages so the distinction should have been clearly made. But the
1970’s’ were not the highlight of human clarity of thought.
The new State-created category that everyone came to call "common law
marriage” confused the meanings in the area of marriage because it applied
"marriage" to the relationship between two people who had chosen not
to be involved as married people at all (otherwise they would have got
married). Thus the unintentional non-marriage was deemed to have been
an intentional marriage.
Recently, marriage between two people of the same sex, claimants for the most
part still clinging, for the time being at least, to the ideas of “couple-ness”
took the concept of marriage beyond “male and female” as the marital unit and
in so doing actually threw out the link with procreation being necessarily an
aspect of marriage at all. Of course, adoption of children by same-sex couples
had been dealt with ahead of time so that “parenting” could not be used as an
argument against lesbians and gays being parents within a same-sex marriage.
But note an important difference here.
No two lesbians and no two homosexuals can ever have a child, in the current
state of science anyway, without recourse to sperm or eggs from outside the
relationship. We had been prepared for this socially, however, years ago by
movements within law and science - - usually at the behest of feminists within
the law, to create “sperm and gamete banks” that would make these “products”
accessible to those who wanted them – primarily lesbians seeking good quality
sperm so that they could have “their own” children. I know of a law professor
who had a child with her lesbian partner by artificial insemination. When asked
what would happen if amniocentesis showed a male child the woman responded that
she would have the child aborted as she only wanted a girl.
The logic of moving beyond “couple-ness” however will eventually stretch
marriage itself beyond two or, as in the Netherlands, smaller than two where,
for example, a single person has claimed that being excluded from the category
of marriage means her own love of herself is not being given equal recognition
to that of couples. The licence was, apparently, granted. If one can “marry”
two men or two women why not two groups of men or women or any combination that
such groups want? Group marriage certainly has as much claim to be socially
recognized as same-sex marriage does, having been just as seriously excluded
and stereotypically treated (as the argument goes).
In fact, on the Island off Canada’s West Coast where we lived for many years,
we recently heard of the new category of “polyamory” (which is now a movement
arguing just the kind of arguments tried out so successfully by same-sex
advocates - -go look at the website and see) in which, so the argument runs, a
group of people enter into “a committed relationship” where they all have
sexual relationships with one another. How long, one wonders, before such an
extended “couple” seeks legal recognition? Trendy ethicists such as Princeton’s
Peter Singer are already saying that this (and, in fact, bestiality) are AOK.
As the same-sex advocates once put it, “who are you to deny their love?” Who
Each development was foreshadowed by others and the “logic” of marriage as
restricted to male and female, primarily or essentially related to the creation,
care and nurturing of children, gave way to one where human procreation itself
became something capable of complete separation from human coupling and human
coupling itself separated from biology and nature.
The feminist slogan that “biology is not destiny” became part of the unhinging
of biology (and science generally) from meaningful conceptions of destiny - -
increasingly what calls itself “ethics” in science (including medicine) is an
ever more vague attempt to distil meaningful concepts that will permit the
latest developments while giving comfort that all is well and the ethics are in
hand. This kind of stabbing ahead into the dark with the white cane of pseudo
ethics is an act of social blindness all too common amongst the new breed of
The Recent Report of the U.S. President’s Council on Bioethics, entitled Beyond
Therapy is just such an example of attempting to give comfort where none is
really due. That the Council involves leading Christian (Protestant and
Catholic) and Jewish scholars such as Mary Ann Glendon, Robert George and Leon
Kass is a cause for serious concern as it indicates the extent to which even
the top thinkers of the day can be co-opted in the direction of false comfort.
The new approaches to ethics need to be identified as false, not play along
with the illusion that things are, in fact, in hand.
They are out of hand. The new approaches have been around for awhile as
evidenced by the ease with which medicine, for example, came to treat normal
pregnancy as something needing medical intervention for the purposes of
“termination” of developing human beings.
The new approach is fully visible in all sorts of contemporary technologies
that have built upon the abandonments signified by abortion, and euthanasia.
Dr. Gerry Hall, the doctor who performed the first human cloning experiment,
described the new approach rather clearly some years ago in an interview he
gave on the Canadian Broadcasting Corporation radio program “Quirks and Quarks”
when he said: “I did the experiment to stimulate ethical discussion and raise
the ethical issue…I do the science and leave the ethics to others to worry
about” (October 30, 1993). Exactly.
As destiny came to be subjectively defined, law came to be the means of making
the subjective will socially powerful in an age when religions no longer formed
the dominant moral conceptions of the age. Without a widely shared religiously
informed conception of destiny, the modern age plunges ahead blindly with
ideology and commercial interest barely reigned in by markers of a previous age
hastily erected as temporary brakes in the mad rush ahead.
Marriage is now, as far as the general State definitions go, deconstructed. It
now means, like the Queen says in Lewis Carroll’s famous story “whatever I say
it shall mean.” As this is being written we do not know what the Supreme Court
of Canada will say in the Marriage Reference but it is fairly certain that the
Court will, somehow, find a right to “same-sex marriage” in the Charter of
Rights and Freedoms.
To what extent religious communities will be able to refuse to marry same-sex
people or to support such marriages (by refusal to rent facilities etc.)
remains to be seen. What is clear is that the courts are just part of the
process of making human reproduction irrelevant to human bonding and thereby
the law sets itself against the deepest waters upon which it has floated for so
posted by CCR : 12/8/2004 02:50:01 PM