In March 2005, the Family Law Section of the American Bar Association published a comprehensive paper on same-sex marriage and non-marital unions (the “Bar report”). I also found another helpful resource published in 2009 in the Journal of the American Academy of Matrimonial Lawyers, entitled “United States Survey On Domestic Partnerships” (the “Journal article”). I refer to these sources (see links below) to explore how the history of marriage, as discussed in these works, squares with the traditional marriage rhetoric being used to support the marriage amendment.
In the movie “Question One” that I discussed last week, someone in the film opposing same-sex marriage joked that if God intended there to be same-sex marriage, he would have made Adam and Steve, rather than Adam and Eve.
According to the Bar report, however, the research “shows that the institution of marriage, rather than being a single, unchanging concept of one man and one woman committed to each other for life, has been a fluid paradigm, changing with the culture and societal norms of the time”.
This theme is echoed in the Journal article, which states that “[a]lthough many would argue that marriage is a historically static institution, overall, the concept of marriage is more fluid. Marriage, and what it means to be married, varies across cultures and has varied throughout time.”
According to the Bar report: “Originally, polygamy (having more than one wife at a time) was common in ancient civilizations in the middle east. In the Bible, for example, marriage was traditionally polygamous. Abraham was married to both Sarah and Hagar and had children with both. Jacob married Leah and Rachel, and then married two of their maidservants. He had children with all of them. Solomon was said to have had more than one thousand wives. The Bible also recites that a deceased husband’s brother was to marry his widow, even if he was already married. The Code of Hammurabi, written in approximately 1780 B.C., also makes reference to a man being able to take a second wife”.
The Bar report goes on to describe how the institution of marriage was treated differently in different societies and how it evolved over time. “Wife-sharing and selective breeding were common practices in Sparta’s quest for the production of strong warriors”. “Polyandry (having more than one husband) was practiced in Central Asia, particularly in Tibet, Sri Lanka, and southern India, and a few areas in Africa”. “For upper-class Romans, marriage was simply a matter of consent. In second-century Rome, marriage contracts between two men of the same age were permitted, but often were ridiculed”.
Other belief systems have had different rules, says the Bar report: “In Asia, the major religions are Buddhism and Hinduism. Buddhism neither prohibits nor allows same-sex marriage. This position of neutrality arises from the belief that individuals should move to the good, and each person must determine what is good for him or herself. However, King Sihanouk of Cambodia, a predominantly Buddhist country, recently proclaimed that same-sex marriages were to be allowed in his kingdom. Hinduism does not condone same-sex marriage; instead it defines a marriage as the joining together of one man and one woman into a single spirit”.
The Bar report also says that it wasn’t until the middle ages that the Catholic church was formally involved in marriage ceremonies, and that it wasn’t until the seventeenth and eighteenth centuries that marriage “evolved into the monogamous one man-one woman model of today”.
The Journal article explains how marriage in the United States was based on the English doctrine of “coverture”, where the wife “had no authority to own property, make a contract, be sued or earn any income that her husband did not control” and where “the husband also had custody of any children born of the marriage”. She “gave up her identity in exchange for support and protection”. The purpose of this arrangement, says the article, was to “preserve the interests of the community – by maintaining social order, preventing destitution, minimizing public expenditures, and facilitating the flow of capital”.
When the supporters of Amendment One talk about preserving traditional marriage between one man and one woman as it has been in this state for over 300 years, they are talking about a form of marriage that most women today would reject. As woman gained more rights, their roles in marriage changed and they evolved toward having equal rights in the marriage. And there were other changes as well.
It was once well accepted that people of different races could not marry. The Bar report explains the change this way: “In 1967, the U. S. Supreme Court in Loving v. Virginia struck down laws prohibiting interracial marriage as a violation of both due process and equal protection under the Fourteenth Amendment. The Court said:“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness . . . .” In a later case, the Supreme Court echoed that view stating: “the right to marry is of fundamental importance for all individuals.””
Those who supported the law banning interracial marriage argued that it was not discrimination, because people could still marry, just not someone of the opposite race. This sounds remarkably like the argument today that same-sex couples are not being discriminated against because they can still marry, just not someone of the same-sex.
The Journal article says that as of 2009, only one in four families were in a “traditional, nuclear family consisting of two married, heterosexual parents and their children”.
The Bar report concludes its section on the history of marriage by saying that “the institution of marriage has changed over the centuries and is likely to continue to do so”.
The Journal article concludes its section on the history of marriage by saying: “Change in what it means to be married is not a new phenomenon, and a definition of family as two opposite sex, first-time-married parents with two children excludes most of the population of the United States today”.
In reading these documents, it becomes clear that the idea of “traditional marriage” did not begin with Adam and Eve and it is not even the same today as it was 300 years ago.
During this recent history, marriage changed for women. And it changed for anyone who wanted to marry a person of another race. To be sure, battles were fought along the way, and change was not easy, but change happened anyway.
Many supporters of the marriage amendment have in their minds a Norman Rockwell like image of what marriage should look like to them. It is uncomfortable for them, just as it was for those who opposed interracial marriage, to see a gay couple in that picture, even if the couple appears happy and secure.
The history of marriage has not been a straight and narrow path. Let’s keep it that way.