Liberty, Prudence, Imperfection, and Law

“The Enduring Institution: The Law of Marriage in the West,” By Helen Alvaré

Photo by David Ball

John Witte Jr.’s second edition of From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition is a critical resource for legal scholars, legislators, theologians and sociologists, living during a time when it could be said without exaggeration that every one of the previously accepted goods and goals of marriage has vociferously been called into question. Together, the current proponents of legalizing polygamy or same sex marriage, or deinstitutionalizing marriage, or institutionalizing cohabitation, are denying that states possess even a rational reason to ground marriage law upon the good of children and marital childrearing. Some among them even call into question the state’s interest in fostering enduring love, companionship, and mutual service between couples—whether of the same sex or opposite sexes. Rather, same-sex marriage advocates in particular frame marriage recognition as a means for the state to express its strong interests in and affirmation of the means of sexual expression as well as the partnership choices of individuals who are same-sex attracted.

In this environment, Professor Witte’s book might be said to be a significant contribution toward curing the unbearable lightness of marriage in public discourse today. For at some point in the course of the author’s meticulous and elegant presentation of five historical models providing the antecedents for Western marriage law, the reader realizes the sheer volume of sophisticated intellectual firepower devoted to marriage over the last two thousand years, not only by lawmakers and legal scholars, but also by clerics, philosophers, theologians and even poets, from every great Western culture. The reader also learns the reason why marriage attracted this sort of attention: leading intellectuals of every age concluded that rightly ordered marriage and family life constituted indispensable aspects of the well being of adults, children, and society, whether considered from the spiritual, economic, or political point of view. We are thereby reminded that it strains credulity to assume that our society might be the first in which the shapes of marriage and family life are irrelevant to the well being of third parties other than the adults involved or perhaps also their children, as some are suggesting today.

The book is scrupulously researched and sourced. It does not “generally characterize” the theses and aims of each of the antecedent models of Western marriage law it identifies. Rather, it delves into the precise laws associated with each model including for example, the laws concerning the conditions for and impediments to marriage, the grounds for divorce (if any), and spousal rights and obligations to one another and to their children, during marriage and upon divorce. From these details the author builds from the ground up, a clear picture of a particular era’s and culture’s understanding of the state’s interests in marriage, and the state’s understanding of marriage’s goals and purposes. This manner of presentation greatly assists the modern reader to understand by distinction what a state intends to suggest today on the same subjects by its chosen array of marriage laws. Looking at the usual array in most US states, it is difficult to gainsay Professor Witte: the state has retreated from asserting a robust interest in marriage. It is leaving it more and more to be determined privately one couple at a time.

Even nonspecialists are aware that the laws about marriage in the United States and other western nations are dramatically different than the laws obtaining, not only two millennia ago, but even 50 years ago. From about the 1960s to today, US states have abandoned  “fault divorce” in favor of unilateral no-fault divorce. They have ceased requiring life-long alimony payments to an ex-wife in favor of rehabilitative spousal support following some but not all divorces. Some observers likely believed that this trajectory was the product of an increasingly secular view of marriage, and perhaps too of the growth of individualism. Others might have attributed it to the growing influence of various incarnations of feminism. Most likely believed that twentieth-century sources and ideas bear most of the responsibility for the last 50 years’ evolution of marriage law. Professor Witte’s account, however, offers a far more complex and less linear account. He documents an interplay of proposals and historical circumstances which led, ultimately, to the shape of family law today. Who knew, for example, that the poet John Milton’s impassioned seventeenth-century essays supporting, essentially, no-fault divorce would find support and widespread codification nearly three centuries later? Or that John Stuart Mill’s writings about the strict equality of men and women in marriage would remain of tremendous interest to lawmakers in the twentieth and twenty-first centuries?

The subject of John Milton’s essays brings to mind another piece of the “story” of Western marriage law that Professor Witte surfaces in his sweeping yet detailed historical work: how the marital circumstances of a particular individual or a group came to exert influence on the shape of marriage as applied to entire nations. Milton, for example, wrote his essays after he was deserted by his young wife following just one month of marriage. The story of England’s King Henry VIII is too well known to require detailed retelling here; but it, too, indicates how the king’s obsession to produce a male heir combined with his taste for multiple wives led to the formation of the Anglican Church, and its highly influential “commonwealth” model of marriage. Another piece of the story leading to the Anglican model of course, was the backlash against the Roman Catholic canon law of marriage with its labyrinthine rules and sometimes corrupt and inconsistent application. Professor Witte’s account of this period of history is a caution to lawmakers to reflect carefully upon the aims of those proposing the most significant or troubling alterations of marriage law. Do they fully account for the needs of the larger community? Particularly the more vulnerable members of the community insofar as marriage is concerned? Or are they shaped by personal interests alone? Are they a proportionate reaction against the problems of a current marriage law system? Or do they discard the baby along with the bathwater?

Professor Witte’s volume is also an excellent indication that the “list” of the leading goals and purposes of marriage, as identified by scholars, theologians, and legislators, has not changed a great deal over the course of two thousand years. It is really quite remarkable considering the wide array of disciplines, cultures, and historical circumstances the book covers. It is also possibly indicative of something like an irreducible natural order regarding marriage. In this way, the book should assist those crafting marriage laws today to resist glib assertions that the family is a nearly infinitely flexible institution, with no intrinsic purposes or goals discernible from reason or experience.

Professor Witte is so well respected as a scholar, and so nuanced and accurate in his historical accounts, that the avid follower of family law transitions can hardly wait to read the chapter entitled “Concluding Reflections.” He does not disappoint. First, it is healthy for those engaged in the hurly-burly of the debates over marriage to remember that earlier societies did likewise, concerning equally stridently contested matters, and lived to tell the tale. Cultures and nations grappled with widespread spousal abuse, with polygamy, concubinage, prostitution, and other affronts to the widespread consensus about the goods of marriage. The institution of marriage survived.

Second, Professor Witte rightly exhorts us to continue to engage multiple fora with decisions about the regulation of marriage, because marriage is not a one-dimensional reality. Reducing marriage to a civil law phenomenon will not satisfy individuals’, families’, or communities’ needs for understanding the nature of marriage, or successfully living out its many stages. Courts today claiming to find constitutional warrant for recognizing marriages between same-sex couples are prone to labeling marriage as a purely state-created institution, failing to credit its natural dimensions or the religious “covenantal” aspects of marriage which assist its stability and social value. Professor Witte’s authoritative demonstration that marriage, by its very nature, over two millennia, resists such reductive treatment, is persuasive.

Third, Professor Witte’s recommendation regarding waiting periods before marriage is important. Marriage is not lived out as a private, emotional experience only. It has intrinsic public importance, for children, for extended families, and for whole societies. Too often, couples and society learn this via a marriage’s falling apart. It would benefit couples significantly to imbibe from the beginning the reality of marriage’s public significance. Stunningly few states have even minimal waiting periods between obtaining a marriage license and entering into marriage. A legally mandated waiting period is not too great an imposition on a couple’s privacy considering what it at stake.

Finally, I am a bit confused by one of Professor Witte’s last recommendations that “we must not cling too dogmatically to an ideal form of household.” He points out that groups and individuals suffering community disapproval in the past came to be accepted, even admired, over time. He suggests that today, we have “other targets of suspicion,” including homosexuals and polygamists. If Professor Witte is making the case against violating the human rights of persons who practice homosexuality or polygamy, this is a straightforward and comprehensible argument with which few could disagree. If he is asking us to overlook the empirical and experiential data about which types of marital partnerships bode well for the rights of women, or the well-being of children, then it is difficult to square this recommendation with his concerns, expressed earlier in this text, about how deference to an adults’ first, contractarian model of marriage redound to the disadvantage of the less powerful, often women and children.

Additional Resources from Law and Liberty:

 

Helen M. Alvaré is an Associate Professor of Law at the George Mason University School of Law. Professor Alvaré is the Chair of the Conscience Protection Task Force at the Witherspoon Institute, and is an adviser to Pope Benedict’s Pontifical Council for the Laity. Professor Alvaré’s scholarship treats the intersection of family law and religion in the United States. This essay was originally published in October 2012 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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