My response, matching your comments, appears throughout. >>> [EMAIL PROTECTED] 3/15/2005 10:54:32 PM >>>
On Mar 15, 2005, at 2:47 PM, James Maule wrote: > Though I am proposing a shift away from marriage as a civil right (and > its replacement with something else), I am not proposing a shift away > from marriage as a religious ceremony. To the contrary, to the extent > states get involved defining "marriage" it cheapens that sacrament as > it > stands within churches. Let me explain why. > > Once upon a time in England While I have studied and deeply appreciate cultural anthropology, I am far from childhood and have learned to recognize condescension when I see it. I am a 45 year old woman, with 9 years active duty in the USN, two marriages, and a 24 year old son. This time I'll assume you're simply using the classic storyteller's narrative device. Next time I'll be less polite. JEM: I was using the classic storyteller's narrative device to set the beginning back in time. Had I wanted to be condescending I would have been condescending. I do not understand why you are so quick to think that my intent was to be condescending. When I wrote my response I had no idea of your gender (Jean being both a male and female name), age, military service, marital status, or fertility. Nor did any of that matter. Thus, nothing that I wrote was, or could have been, directed at anything other than the words in your posting. > (from which our traditions in this respect originate) No. "From which our traditions deviate". Read on, McDuff. (With apologies to Shakespeare) JEM: The history of American law, with the exception of Louisiana and chunks of law in Southwestern states, is steeped in England law and legal traditions, itself flavored by other traditions. > the only officiating with respect to birth was parish > registration (and that was not widespread before the 15th century). > It > was a recording of the date of the baptism and the names of one or both > of the parents. Later, the civil government instituted birth > registration (recording date of birth and the names of both parents). > Civil servants handled the civil registration, and curates and pastors > continued baptisms. They did not stand in as civil registrars. > > The same pattern developed, though a bit differently in detail, with > deaths. (For example, parish registers recorded date of funeral and > burial, though some recorded date of death as well). If a church > supervised a burial, the information on the death could come from the > church, but it could also come from others. I have no argument with any of this. Doesn't mean there aren't any, just that I don't have one. > > Marriage was originally a church matter, a sacrament. Er, hold on a minute. To avoid confusion, why don't we agree to say that at the time of the migration to North America (early 1600s CE for our purposes) marriage was a sacrament of the Anglican church. Prior to that, it had to be incorporated into the doctrine of the sacraments in the Catholic church. Prior to *that*, it was largely a civil affair, with little or no ceremony. I seem to remember reading that a couple would pledge to one another on the steps of the church as a means of making a public commitment. Later, they would ask the blessing of the priest on their union. (Much like Prince Charles and Camilla plan to do.) JEM: The "catholic" (pre-Reformation) church long had an interest in marriage, and regulated it, even if it was not denominated a "sacrament" as such. Canon law with respect to marriage goes back many centuries. The church set forth (and many Catholic rite and Protestant churches, among others, continue to set forth) restrictions and prohibitions regarding marriage (such as marriage between individuals too "closely" related), and also issued dispensations with respect to marriages that would otherwise violate those prohibitions. This occurred as early as the Council of Elvira in 300 A.D., and by 1059 at the Council of Rome, had developed into a more sophisticated set of rules, indicating that church supervision of marriage goes back much earlier than 1600. (http://www.newadvent.org/cathen/01178a.htm). "Marriage as a "sacrament" was widely accepted in the church by the 8th century, however the "sacramental" nature of marriage was not written into Canon law until 1563. " (http://civilliberty.about.com/od/civilunions/a/MarriageFeb05.htm) This quotation is based on the fact that the Council of Trent was reacting to Protestant (particularly Luther's) assertion that marriage was not a sacrament, in contrast to what had been accepted for centuries. By the time of the Council of Florence, and in a 1208 papal directive, the nature of marriage as a sacrament had been taken as established. (http://www.newadvent.org/cathen/09707a.htm). JEM: As for the civil side, royalty and nobility needed consent of "the government" (i.e., their feudal overlord), but the rest of the population, other than perhaps having to yield to overlords who exercised their rights to take a woman for themselves before or in substitution to her marriage to someone else, pretty much did their marriage thing without government intervention or regulation. The church was far more influential in the villages, especially when the feudal lord was off fighting somewhere. > Civil involvement > was limited to the approval of the crown with respect to certain > marriages (and way too much informal, technically illegal interference > and lobbying on the part of nobility and royalty with church officials, > culminating in the inevitable outcome of Henry VIII's problems). Er, you forgot the publication of banns. JEM: I wasn't trying to write a treatise. An examination of the history of banns corroborates my assertion that at least the Christian church has considered marriage to be a religious matter for almost 2,000 years. "From the beginning of Christian society the marriage of its members was looked on as a public religious act, subject to ecclesiastical control (Tertullian, "De monog.", c. xi; "De pudicitia", c. iv.). The obligation of making known to the bishop all proposed marriage dates as far back as the beginning of the second century (Ignat, ad Polyc., c.v.). :From the beginning of Christian society the marriage of its members was looked on as a public religious act, subject to ecclesiastical control (Tertullian, "De monog.", c. xi; "De pudicitia", c. iv.). The obligation of making known to the bishop all proposed marriage dates as far back as the beginning of the second century (Ignat, ad Polyc., c.v.)." (http://www.newadvent.org/cathen/02255a.htm) > But > civil "approval" was more a matter of family blessing and was not > considered to create rights as between the two individuals before the > marriage ceremony itself. When the government of England chose to > permit > marriage outside of churches, What time frame are you speaking of? You see, it took a long time to get that couple *into* the church in the first place. I daresay that they weren't entirely successful, and unions were established without the benefits of clergy. JEM: Christian couples were getting their marriages blessed before there were "churches" as such (worship being conducted in private homes). See http://www.newadvent.org/cathen/02255a.htm. Of course there were people who married without benefit of clergy. That doesn't establish that the church had no role, or that marriage was chiefly a civil matter. > instead of moving the entire matter to the > civil side as it did with births and deaths, leaving the religious > sacraments of baptism and last rites to the church, it instead > piggy-backed itself on chuch marriages. Um, ok. Would you kindly cite your sources? JEM: My source is the marriage authority law in every state, that accepts as valid a marriage performed by a member of the clergy. I don't see the purpose of getting those 50 citations. My point is that these laws do not require the couple to go through a separate civil marriage ceremony in front of a state official. Hence, the piggy-backing, that is, treating the religious ceremony as good enough for civil marriage status. > > Would (should) that have been permitted had there been a FA equivalent > in England at the time? I don't see how. Compare, for example, the > current practice in France, an outcome of how the Revolution altered > the > relationship between church and state in that country. Alas, I am woefully ignorant of how they do it in France. JEM: In France, to be married for civil purposes, the couple must marry in front of an authorized civil official (usually the town mayor, but others, such as at least some judges, can peform the ceremony). Then, if the couple wishes to be married for ecclesiastical purposes, they go to the church. In most towns, the church is literally across the street from the town hall, so the wedding party goes to the town hall, the couple is married in the civil ceremony (not very long), and then, in some instances, they cross the street and go into the church for the religious ceremony. > > So the entangled mess, which came to this country with the English > emigrants, remains an entanglement. After all, though there was a > church-state dichotomy in the Massachusetts Bay Colony, for all intents > and purposes the Puritan ministers controlled marriage. Um. Ah. No. Nonononono. With all due respect, sir, this is historically incorrect. In fact, the Puritans of Massachusetts Bay Colony, the Pilgrims of Plimoth, the Anabaptists of Aquidneck, the Baptists of Rhode Island, all held that marriage was in fact a "strictly civil affair". The wanted *NOTHING* to do with marriage as a religious rite. Marriages were performed by magistrates ONLY. John Cotton, John Robertson, Gov. Bradford, Roger Williams, Rev. Blackstone, all declared in their writings that marriage was NOT a sacrament. I am willing to cite primary sources, but it will have to wait until tomorrow after my Constitutional Law class, and my corned beef and cabbage luncheon. JEM: The marriages were performed by the magistrates, who held their positions only to the extent that the ministers so permitted. For example, in Female Piety in Puritan New England: The Emergence of Religious Humanism, Amanda Porterfield "finds that by conflating marriage as a trope of grace with marriage as a social construct, Puritan ministers invested relationships between husbands and wives with religious meaning." (http://www.us.oup.com/us/catalog/general/subject/ReligionTheology/American/~~/c2Y9YWxsJnNzPWF1dGhvci5hc2Mmc2Q9YXNjJnBmPTEwMCZ2aWV3PXVzYSZwcj0xMCZib29rQ292ZXJzPXllcyZjaT0wMTk1MDY4MjEx) Remember, the very reason they came to this continent was to leave behind what they felt was apostasy and persecution. They weren't called "separatists" and "reformers" for nothing. JEM: That they were separatists and reformers did not mean that they did not relish having control, directly or indirectly, over everything that transpired in the Colony. > > So how could the Framers, dedicated to FA principles, have tolerated > the entanglement that exists with respect to marriage? Tradition? No, > all sorts of practices that had traditionally been carried on were > jettisoned by the Framers. > > Instead, I think that the answer is in one phrase: regulation of sexual > conduct. The civil government appears just as intent as are church > governments to regulate who can have legally condoned sex with another > person, and although the attempts of both civil and church governments > to restrict sexual behavior to marital partners (and to regulate it > therein) have for the most part failed, it is with respect to marriage > that the last battle over that issue is being fought. Again, history shows otherwise. To the first settlers, marriage was akin to a business contract. A wife was endowed with power of attorney by default to conduct her husband's affairs when he was away, either hunting or sailing. JEM: "The pre-Christian Greco-Roman world understood marriage as a business contract; by the sixteenth century, dominant Christian religious culture defined marriage as instituted by God for the sole benefit of his people. Along the way, religion took over as arbiter of the civil component of the relationship, although not without challenges from various secular authorities. Nevertheless, by the fourteenth century, the church held inviolably that the sacredness of the sacrament superseded the secular interests in forming this contract." (http://hirr.hartsem.edu/ency/Marriage.htm) Citations for the proposition that marriage in colonial America was merely a business proposition would be helpful. > Churches and their members are free to define their sacraments and to > attach to them whatever theological principles they determine are > appropriate. No state can tell a religion who can and cannot receive a > sacrament in that church. That's the "separate" part. I'd say that that's the part about government having no say in religious matters (Roger Williams model of separation). Just remember that the wall of separation has two sides: religion shall have no say in Government (Thomas Jefferson model of separation--man, I hope I have that right and didn't get them mixed up.) JEM: Yes, that's the next part, namely, that churches should not tell the state what a civil marriage can or should be. Nor should the states have been so quick to adopt or so eager to retain the ecclesiastical model. > > If a government chooses to define relationships between individuals, it > needs to do so without piggy-backing on churches and church > definitions. It already has. We have codified those definitions, and included in that codification is the tradition going back before the founding of marriage as a civil affair. JEM: That's my point. States have piggy-backed on churches and church definitions, and it is time that states let go and establish independent civil unions or civil domestic partnerships, however called, and do so without reflecting canon or other ecclesiastical law. > And the extent to which it is permitted to do so must rest on the > extent > to which it can regulate sexual activity. Thus, a state can deny > marriage to an 11 year old, or to a person lacking mental capacity. I assume you mean that the government can prevent a minister from performing a marriage ceremony for non-qualifying parties? JEM: Technically, the state can refuse to accept as a valid civil "marriage" a ceremony performed by a member of the clergy that violates the state's prerequisites, even if that particular church accepts the couple as "marriageable." (Yet another reason the state should not be piggybacking on church ceremonies as substitutes for civil ceremonies). But the state cannot prevent that marriage from being a marriage in the eyes of that church. > Beyond that, if two people wish to enter into legal arrangements with > respect to property, taxes, hospital visits, etc., the state can grant > a > tag ("civil union"?) to those two individuals (be they man and woman, > two men, two women, a parent and child, two siblings, or any other pair > who wishes to created a contract, and hence the appeal of the term > "domestic partnership"). Whether two consenting adults choose to engage > in sexual activity, within or without the civil union or domestic > partnership, is not a matter of property, taxes, hospital visits, or > whatever, and the state must leave that be. No. You are lumping non-pairbonded (parent-child, siblings, strangers who want a tax break) individuals in with couples who are in sincerely committed, faithful (and often, but not always, sexual) relationships. There is a difference between a marriage between equals and a domestic partnership between a parent and child. JEM: The state has no business dealing with people's emotions. Property regulation, taxes, hospital visitation rights, powers of attorney, and those sorts of things are within the power of the state to manage, and there is no reason to draw distinctions between one or another type of pair-bond. I make the same argument in terms of the "joint return" for federal income tax purposes, namely, the marital pair-bond and the nonmarital pair-bond are in the same place economically, and the "commitment" or emotion or other psychological connection is not a matter for the tax law or any other law to use as a basis for distinctions. In other words, though I agree that there is a difference between a marriage and two siblings sharing a home, that difference should mean nothing in terms of taxes, powers of attorney, etc. if the two people choose to come within the protections and rights (and obligations) afforded to pair bonds. The difference involves love, romance, commitment, emotion, and, for some, sexual behavior, none of which should be the basis for giving additional rights to the marital pair-bond. ("Save taxes because you love each other" makes no sense.) What you are proposing, Mr. Maule, is that marriage is solely a religious institution. It is not. Historically, marriage has been primarily political or business driven. It was precisely for that reason the Catholic church poached it and subsumed it to their domain. Oddly, Henry VIII didn't object to that--his beef was that the pope wouldn't allow him a divorce for political expediency, so he declared *himself* the spiritual head of the Church of England. The Puritans and Pilgrims absolutely refused to acknowledge marriage as religious. It was strictly a civil matter. *That* is why we have a tradition of civil marriage in America. JEM: "Marriage" should be a religious or a private spiritual or emotional relationship. Legal relationships in a pair-bond are a different matter. I'm not going to argue whether marriage was poached by the Catholic church, but if there was poaching, it was the Christian church before it was called "catholic" as such, even before the orthodox-Western split, and it was a poaching of Greco-Roman concepts of marriage. Yes, the Christian church changed marriage. Business, politics and all other sorts of things inconsistent with marriage as a sacrament, spiritual relationship or emotional bond have long intruded into marriage (whether spousal selection, interaction within the relationship, or treatment by the outside world) but that, perhaps, explains why marriage as an institution has had its problems, as evidenced by the high divorce rate, infidelity, and spousal abuse. > > In other words, the state does not belong in the marriage business, Yes, it does. JEM: Well, this is the heart of the debate, and because many others have written far more extensive defenses of my proposition, I'll not add to the literature. > the baptism business, or the memorial service business. Nor, I assume, "last rites". JEM: Yes, I could have added that. And, I suppose, indulgences, votive candles, and all other sorts of things that "belong" to other than the state. > And along the same > lines, ministers/rabbis/etc should not have rights under civil law to > solemnize "marriages" for civil purposes merely by dint of their being > ministers/rabbis/etc. Why not? JEM: Because that gives religion an edge up that violates separation principles and carries too much of a flavor of establishment (when the state begins to decide that ministers of Sect A can be authorized but ministers of Sect B cannot be authorized to perform marriages on behalf of the state). > After all, having one's child baptized in a church > doesn't satisfy the requirement that the birth be recorded with the > state government. Actually, I think it does. I've heard of registrars accepting baptismal certificates in lieu of birth certificates. Again, I could be wrong. JEM: Registrars will accept anything as evidence in the attempt to "prove" the date of birth, but the baptism certificate is not a substitute per se for the birth registration. > So the practice of states "adopting" the administering > of the church sacrament of marriage is another entanglement that needs > to be undone. There is no entanglement. There already exists the option of marriage by non-religious officiants. It had its origins in the first settlers own religious beliefs. JEM: The existence of that option does not take away the entanglement. Jean Dudley http://jeansvoice.blogspot.com Future Law Student _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
