Wednesday, December 08, 2004

How the Marriage Challenge Developed

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 change.

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 openly.

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 here.

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 unions.”

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 indeed?

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 scientists.

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 long.

Iain T. Benson ©