Reading Jason Kuznicki and D.A. Ridgely’s recent posts about marriage made me curious about the historical developments in the American legal understanding of marriage. Kuznicki:

Ultimately, I’d like civil marriage simply to be a form of contract, combined with some clear, legally binding advance directives about property and family affairs. Such an arrangement would have no room at all for gender, and thus same-sex marriage contracts would be accepted as a matter of course. But that’s not what marriage really is, whether for gays or straights. That’s one thing this whole debate has brought to light.

Ridgely:

So, for example, I have harped fairly consistently that the notion of marriage as status, derived as so much of contemporary western culture does from feudal society, is a remnant of that feudalism and should be replaced with the notion of marriage as contract. (In a nutshell, a legal status differs from the private legal relationship arising by contract in that, typically, the parties involved cannot rescind or revise the legal relationship except, if at all, with state permission. Citizenship is a status. Unfortunately, so occasionally and for some purposes are what the Supreme Court has sometimes called the suspect classifications of race and, increasingly, gender. It’s a complicated topic better left for now to a more full discussion elsewhere.)

But replacing status marriage with contract marriage, regardless of its historical baggage, need not and should not change the legal status of parent and child as a general and sociologically normative rule.

I would argue that the crisis and inevitable triumph of homosexual marriage is sufficient proof that marriage is not a status in American legal theory, but a contract. While a contractual understanding was solidified in the 1960s with the advent of no-fault divorce laws, the transition away from ‘status’ began much earlier. From Michael Grossberg’s excellent Governing the Hearth:

The definition of marriage as a civil contract had deep roots in English legal tradition and colonial practice. The legacy of colonial legislation and custom, with its blend of Calvinism, Anglicanism, and English ecclesiastical law, remained important because it constituted the major statutory and judicial record for nineteenth-century lawyers. Though differing in many essentials, these sources emphasized the secular, contractual nature of matrimony while at the same time endorsing strict public nuptial vigilance. In most of the colonies communal had replaced ecclesiastical control, and the mutuality of the matrimonial pact was accepted. But while the effectiveness of community supervision waned with time, colonial law, like its English parent, highlighted the civil or public nature of the marriage pact.

Post-Revolutionary views of matrimony evolved from, and reacted against, this heritage. Though the law continued to portray marriage as a civil contract, in a vital transition the accent shifted from the first word to the second. The new emphasis was on the consensual nature of marriage. It also reflected the broader use of contract as the central metaphor for social and economic relations in nineteenth-century America. This occurred as part of the revolutionary change marked by “the gradual displacement of patriarchalism by contractualism.” Contractualism gained strength from the same forces that were eroding the hierarchical conception of society. Rather than viewing the body politic as an amalgam of interdependent, status-defined groups, contract ideology stemmed from a world view whose lode star was the untrammeled autonomy of the individual will. Relations of all kinds were to be governed by the intentions, not the ascribed status, of their makers. The English philosopher Sir Henry Maine characterized this transition as the “movement from status to contract.”

In resisting homosexual marriage, conservatives are (rightly) resisting a development the seeds for which were sewn hundreds of years ago in John Locke and his atomistic and individualistic anthropology. Ridgely and Kuznicki have good reason to be optimistic: the philosophical foundation for homosexual marriage is so deeply embedded in even Christian’s minds that it’s nearly impossible to conceive of grounds upon which our secular culture might reject it.

Print Friendly, PDF & Email

Posted by Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.

3 Comments

  1. It is true that the history of American jurisprudence has been to devolve feudal status relationships increasingly into relationships created and defined exclusive by the terms of private contracts governed only by the general law of contracts. However, estate and inheritance issues aside (and altering the default rights of a spouse is no easy matter), the characterization of marriage as a status rather than a merely contractual relationship remains very much the case. Your tax status, your next of kin status, your inheritance rights, your insurable interests and any number of smaller matters, even including the common law tradition of a woman taking her husband’s surname without further ado are all indicia of the cluster of changes that occur by virtue of being legally married. And while no-fault divorce certainly did weaken the strictures of civil marriage, it nonetheless remains that nowhere in the U.S. can a couple completely rescind their marital status merely by mutual agreement. The hallmark of a status in contradistinction to a contractual relationship as I understand the two is the necessary and often intimate involvement of the state in creating and defining legal status.

    That said, while it is true that I would much prefer that Maine’s observation held as true as you seem to believe in the case of marriage, I also think this civil, legal issue is entirely separate, as perhaps you again do not, from any theological understanding of sacramental marriage. There is no question that within orthodox Christian theology a man and a woman marry “in the church,” and that there is an expectation that the couple are entering into a new relationship that specifically includes God and God’s people. Thus, I am personally far more skeptical about the possibility of a sacramental Christian homosexual marriage than you seem to believe. On the other hand, I can’t say that I find sufficient ground to oppose the church blessing the love and nurturing that undoubtedly exists in committed monogamous homosexual unions. That position of course pleases no one, but that is none of my concern.

    (Finally, I know “Kuznicki” is easier to spell, but in deference to my father who gave me my name I note it is spelled “Ridgely.”

    Reply

  2. A quote from a portion of my reply to a comment from John Mark Reynolds on my blog that was pertinent to the current discussion, “I agree that language distortion has occured, but believe that it occured when common law marriage was shifted to state licenced contracts. Marriage licenses are not marriage. Committment to stay together even when the warm fuzzies are gone is marriage. A dedication to treat your partner well even when you are seething mad is marriage. Finding out that our second surprise baby is on the way and having that brief moment of panic with a huge smile and a hug is marriage. Marriage is about love, committment, dedication, a contract with God to stick it thru thick and thin, 1 Corinthians 13. Marriage licenses are about taxes, property and hospital visitation. Who cares who gets a license? I know what marriage is really about and no amount of gov’t intervention will change that.”

    http://www.scottoverpeck.com

    Reply

  3. Matthew Lee Anderson June 24, 2008 at 9:48 pm

    D.A.,

    First, my apologies for the gross misspelling of your name. I looked at that three times (seriously) to make sure I got it right. I am afraid that late at night (when the post was written) I tend to miss details.

    Second, I am a bit surprised by this line of your argument: “And while no-fault divorce certainly did weaken the strictures of civil marriage, it nonetheless remains that nowhere in the U.S. can a couple completely rescind their marital status merely by mutual agreement.” From what I understand, the legal proceedings are often only rigorous when the divorcees disagree over the terms of the divorce. With the advent of pre-nups, my understanding is that the divorce paperwork can be about as easy as the paperwork to enter marriage. You can get the paperwork at LegalZoom for $299. I would be thrilled to hear otherwise.

    Frankly, I think the larger point is that even if the contractual basis of marriage hasn’t worked it’s way into every law, Grossberg’s analysis suggests it is only a matter of time. I see little reason to disagree with it.

    As for the relationship between the legal and the sacramental, I will save my thoughts for a future post.

    Reply

Leave a reply

Your email address will not be published. Required fields are marked *