Thursday, December 6, 2007

Mandatory Reading: The Facts of Marriage

Keeping Marriage Public

By Michael Fragoso, in First Things

Prof. Stephanie Coontz recently took to the pages of the New York Times to inform us that we do not need marriage as a legal institution. This is not the first time she has ridden rough-shod over marriage in the Times, and I doubt it will be the last. In this instance, Coontz is nothing short of dazzling in how adeptly she manages to misrepresent marriage and marriage law in Western history in order to bolster her destructive arguments.

In her description of premodern marriage law, she leaves a distinct impression that legal interference with marriage tended toward a restriction of individual liberty–preventing marriages when parents disapproved, preventing divorce, and so on. It’s a useful narrative for contemporary radicals who seek to undermine marriage. The trouble is that it has little relation to actual history. Here are some of her claims, and the facts against which they stand opposed.

Claim 1: “Why do people–gay or straight–need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families.”

Fact: Since the dawn of Western civilization marriage has been a public institution. Plato, in his Crito, has the personified “Laws” of Athens ask Socrates, “Did we not first give you life? And was it not through us that your father took your mother in marriage, and sired you?”

Likewise in Roman law, there were varied and complex legal formulas and requirements for marriage. The right to Roman marriage was one enjoyed exclusively by citizens. (Non-citizens were governed by the ius gentium, or law of nations, which in effect made legally binding the local customs of marriage to which non-citizens were beholden.) Even the forms by which a marriage would be valid varied in Rome, the original form being the rather misogynistic manus marriage, which eventually gave way to the usus marriage by the height of the empire.

Jurists of the so-called Classical Period debated what constituted legally valid marriage. The answer was affectio maritalis–the affection that a husband and a wife have for each other. In the Roman case, Coontz isn’t entirely wrong in calling it a contract, insofar as marriage law would more often than not be adjudicated in the civil courts just like a contract law. Of course, this makes it a public union rather than a private one by necessity, since what good is a contract if it lacks the public force of law in its enforcement?

Claim 2: “The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.”

Fact: Again, starting with Roman law, “parents” (as Coontz so politically correctly calls them) had little to do with effecting actual validity, although fathers had a necessary role to play in approving the union, and, in the case of manus marriage, the ceremony itself. Following the early Middle Ages, the relevant laws of marriage–both sacred and secular–tended to minimize the role of parental approval as it related to the legal validity of marriage. Canon law, starting with Gratian in 1140, insisted that the consent of the parties is what made a valid marriage and that it must be free consent. Even law systems that granted great deference to parental input–such as the Siete Partidas by King Alfonso X of Castile–penalized husbands who contracted marriage without parental approval while still respecting the validity of the illegal union. Individual men and women effected valid marriage, and that was respected and enforced by both the Church and the state.

Claim 3: “For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes.”

Fact: As we have just seen, yes, Christianity did insist that marriage is effected by the consent of the parties involved. But, again, the first clear and extant legal documentation we have of this comes from Pope Urban II in the 1090s. The principle of free consent certainly had strong currency in the Catholic Church, going back to St. Paul (who in 1 Corinthians says that a widow may marry whosoever she wishes). The specifics of the sacramentality of marriage, however, was a developing doctrine until the eleventh century, and as such there was little legal or theological consensus as to what exactly made marriage valid. All this makes Coontz’s math rather fuzzy. (Also note how Claim 3 flatly contradicts Claim 2.)

Claim 4: “If two people claimed they had exchanged marital vows–even out alone by the haystack–the Catholic Church accepted that they were validly married.”

Fact: This is technically correct, albeit only half the story: The marriage was accepted as valid but considered sinfully contracted, necessitating penance.

Claim 5: “In 1215, the Church decreed that a ‘licit’ marriage must take place in church.”

Fact: Tertullian, Emperor Basil, Pope Nicholas, and many others had all said so centuries before the Fourth Lateran Council (1215). The “lawyer pope” Alexander III (1151-1184) proscribed clandestine marriage while maintaining its validity. All that occurred under Innocent III in 1215 was the proclamation of the formal marriage banns, thus solidifying in ecclesiastical law the long-developing sacramental understanding of marriage.

Claim 6: “But people who married illicitly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against.”

Fact: Much of this is technically correct for certain places and times. Its flaw is in its generality and its confusion of interwoven legal structures. For example: The marriage would be valid in canon law if clandestine; thus the canon-law prohibition against divorce would take hold. Inheritance rights, on the other hand, were a question for secular civil law, which typically minimized the inheritance rights of women by the High Middle Ages in favor of primogeniture doctrine. The clandestinely married did have the same civil-law rights as the licitly married–whatever that happened to entail in a given legal regime–but that was because the state recognized the capacity of the Church to arbitrate questions of contracting marriage. The rights and obligations–sacred and secular–followed from the authority of canon law.

Claim 7: “Not until the 16th century did European states begin to require that marriages be performed under legal auspices.”

Fact: Again, Coontz confuses sacred and secular law. She clearly is referring to the Council of Trent, which denied the validity of clandestine marriage. This affected marriage in Catholic countries, where canon law still governed the institution. I can’t speak to Protestant Europe with authority, but I would presume that the state did take a greater interest in the regulation of marriage as Coontz claims, but for reasons involving the departure of the Catholic Church and its laws and courts. In order to maintain the common good, the Protestant states needed a new authority to regulate marriage–as the Church had before–and so the state took over. It’s the same car with a new driver.

Claim 8: “In part, this was an attempt to prevent unions between young adults whose parents opposed their match.”

Fact: In the Catholic world, it was an attempt to prevent polygamy. Men would go around saying “I take you as wife” to different paramours in different towns and before long had a number of wives on their hands. (This was a popular trope in late medieval/early-modern prose literature.) Since there were never witnesses, it could lead to chaos and was particularly unfair to women who would suddenly realize that their husbands were bigamists.

Coontz misstates the historical record to give the impression that marriage has typically not been a province of law and only became such in an effort to preserve the narrow interests of certain powerful sects of society: wealthy parents in requiring parental consent, Catholic authoritarians in proscribing divorce, and Southern racists in preventing miscegenation. This could not be further from the truth. As a rule, the more marriage was enshrined in law, the more freedom under the law was given to men and women who sought marriage. This was often the case in the ancient world, and emphatically the case in the medieval world.

Coontz takes complex legal and theological doctrines such as consent and twists them into a vision of sexual anarchy on one hand–with men and women marrying willy nilly at their loins’ urging, like characters in a raunchy Catalonian romance–or brutally subjugated to the dynastic interests of their families, as in so many hagiographies of old.

Against these cultural tendencies Western society erected laws on marriage. Not only do these laws ensure the continuation of society through the rearing of subsequent generations; they also aimed to protect the rights of men and women. For example, laws in favor of free consent as well as those proscribing consanguinity and affinity protect individuals from being forced into marriage for the sake of dynastic concerns. Likewise, public marriage banns protect women from being two-timed by bigamist rakes. It’s too bad all this is lost to Coontz as she furthers her tiresome agenda.

Michael Fragoso is a policy analyst at the Family Research Council who studied classics and medieval studies at Princeton University.

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