Whatever else it signifies for American society, the rise of the same-sex marriage movement evidences the cultural-historical triumph of the idea of the love match. From the time of Romeo and Juliet, starry-eyed couples have combated social expectations and economic constraints and won definitive victories for romantic ideals in modern times. This is particularly the case in our own country, where we believe that nothing should stand in the way – not economic status, not region of origin, not religion, not race or ethnicity – of true love.
Pioneers that we are, we have come to what seems the final frontier, pushing to enshrine once and for all in our marriage laws the pure ideal of the love match – freeing marriage even from definitional burdens relating to the natural, normal, and best arrangement for the procreation and rearing of children. Marriage is not essentially about children, we now cry. Nor is it about the basic complementariness and drawing-nigh of the two sexes. It is about love, pure and simple – about the sacred bonding between an “I” and his “Thou,” and no one should have the right to discriminate based on the sameness or difference of I and Thou’s gender.
Opponents of same-sex marriage who nonetheless accept the status quo of no-fault divorce and chronic use of contraception should consider the relation of all these things to the love-match ideal. Couples often divorce when the passion leaves, or when they want to find truer, better connections with other individuals. And they often contracept to keep their marriages free for a time from the sobering effect of having children; something they believe would detract from the exclusive enchantments of their lives together.
Same-sex couples make a strong case when they beg the question, How is the love of a homosexual couple less worthy of legal sanction than the many ultimately loveless matches of heterosexual couples who end up in divorce court? The same-sex marriage movement seems merely symptomatic of long-running trends in our cultural view of marriage as based on the will and whim of the persons involved. American society, after all, long ago abandoned the conception of marriage as a life-long commitment, tied to children and based on the natural partnership of men and women (“for better, for worse, till death do us part”). It was traded in for a new model based simply on mutual romantic attachment (call it “love”) and convenience, “freed” from childbearing, childrearing, or long-term commitment if such was the will and desire of the married parties. If same-sex couples are vexed to see granted special protection in law, it should not be surprising. Our current model is hard to distinguish from theirs.
There is a great deal of hypocrisy, therefore, among those who embrace liberal divorce laws and contraception because they view marriage as primarily about the couple’s desires – and not about the procreative fruitfulness of a more selfless kind of love – and yet oppose same-sex marriage. This is not to say, however, that such people need to abandon the love-match ideal that has triumphed in modern times. Rather, by questioning it, they should identify what is good in, and proper to, the freely chosen and socially unburdened love of a man and a woman united in marriage. They need to wrestle with whether aspects of of their understanding of romantic love and its prerogatives may actually be opposed to a true ideal of married love. It is worth considering whether our current cultural understanding has contributed to the weakening of the institution to the point where same-sex marriage is even considered plausible.
As a way of aiding such reflections, a brief tour through the history of Western marriage law will be helpful. It will also be consoling, and perhaps inspiring, to those of us who, while troubled by recent cultural developments, nevertheless believe the best marriages are based on true love, without primary reference to social, political, and economic ends.
There is magnificent historical irony in the fact that we romance-minded moderns veritably owe our entire legal culture of protecting and forwarding marriages based ultimately on the free will and consent of the marrying parties to the medieval Roman Catholic Church. Yes, we owe the triumph of the love-match ideal in our marriage laws in large part to that bogey-man of bogey-men which modern myth-makers would have us believe was hopelessly hung-up sexually and preached that sexual relations in marriage should be as mechanical and passionless as they should be abundantly fruitful.
This is truly ironic given the way the same-sex marriage debate has been framed by supporters as a matter of separation of Church and State, in part because of the incorrigible tendency of opponents to quote all the familiar Bible verses about Adam and Eve (“and God didn’t create Adam and Steve!”). The very underappreciated fact is, however, that from the time the Roman Empire fell until well into modern times, Roman Catholic jurists and canon lawyers were engaged in an epic struggle with feudal and civil authorities over the regulation of marriage contracts, with the Church standing as the constant champion of marriages based on the free consent of the man and the woman and, wherever possible, on the Christian ideal of mutual love and devotion to one another. Powerful families, and the common-law and civil courts which served their interests, frequently contested ecclesiastical courts on what constituted marital consent. They were accustomed to contract marriages based on the consent of the fathers or of the families of the bride and groom, not on the consent of the bride and groom themselves – who, in many cases, particularly in noble and royal circles, were infants or small children when betrothals were made.
Church lawyers consistently and energetically opposed such customs and opposed the guiding principle that marriages should be based on the will of the families, rather than on the free will of the man and woman involved. The medieval Church was so committed to upholding the free will of the man and woman against the opposition of familial, social, or economic interests that she generally recognized as sacramental and binding marriage unions that had been entered into clandestinely, even without a priest officiating or any witness present. Because of the evidentiary difficulty such recognition created when a man or woman contested the fact of his or her alleged clandestine marriage, the Church formally declared in the Council of Trent (1545-1563) that a priest must officiate for the Catholic sacrament of holy matrimony – a sacrament which to this day is understood, however, as conferred by the spouses on one another through their profession of vows and through their consummation of the union.
By the early modern period, the medieval Church’s ideal of the freedom of a man or woman to marry or not to marry a particular person of their choice was being honored in many law courts throughout Europe. In particular – and relevant to our own situation – the championing of marriages based on the consent of the man and woman by Catholic canon lawyers and, in the same legal tradition, by Anglican ecclesiastical jurists, informed heavily most English jurisprudence concerning marriage, which was a crucial foundation for American marriage law. Though we have come to speak of “civil marriage” as a secular and quite distinct phenomenon from “sacramental” or “church” marriages, such a dichotomy – at least in historical terms – is a false one.
The best present-day proof of this is the fact that in America, as in England, ministers of religion are vested with the powers of justices of the peace, requiring only a license, and not a separate civil ceremony, for their “sacramental” or “church” weddings to be recognized in law. This is not the case in European countries affected by the Napoleonic Code civil, which, in express hostility toward the historic Catholic legal tradition, declared marriage to be a “civil contract only” and refused to recognize religious wedding ceremonies of any kind as bearing any legal force. (It may be a commentary on the effects of the two systems that while divorce has become more common in Anglo-American society than in continental Europe, extramarital affairs are looked upon with far less social stigma in Europe, perhaps because the idea of marriage’s sanctity with its call to fidelity – its natural affinity with the religious aspirations of most individuals and communities – was deliberately and systematically undermined by the continental civil law revolutions after 1789.)
As we see from this brief tour through legal history, our modern ideal of the love match has not merely been fostered by the individualistic and romantic longings of the American people. Rather, it been fostered by our legal codes which are – very specifically where marriage is concerned – firmly rooted in the ancient Christian legal tradition.
Accustomed as we are to view and assert rights and ideals in a cultural-historical vacuum, as if their supposedly inalienable nature is simply self-evident, many of us will be inclined to shrug at the debt we owe to the medieval Church for the modern ideal of marriage based on love and freedom. We need greater awareness of the historical genesis of such ideas, however, and not tear them from their principled roots, if we are to defend and maintain them vigorously on solid ground. An unalienable right, a term from old property law appropriated by modern philosophy, should be indicative of a tangible reality – it should possess a rootedness in the contexts and principles from which it draws life, nourishment, and the force of law. In the confusion of a morally and culturally relativistic climate, where ideas come and go as cheaply as mass-produced consumer goods, it is all the more imperative that we go in search of the roots of cherished principles such as love and free choice.
It is no accident that the idea of marriage based on love and free choice sprang forth vigorously from the Catholic Christian context. In Scripture, marriage is described as an image of Christ’s union with His Church – a union based on His freely given love for humanity, the love that brought Him to Calvary even though He had the power to avoid suffering by taking on our sins. Christ’s perfect love for the Church demanded His free choice, His consent to be the Bridegroom. And in turn, the Church’s spousal love for Christ would not be love – the giving over of ourselves to Him and the opening of ourselves up to God’s plan for new life within ourselves and for the generations to come – without our free choice and consent to follow Him.
In the Catholic tradition, freedom and love are united in the person of Christ, and since marriage is one of the states of life to which many Christians are called, this unity of freedom and love are essential to the ideal of Christian marriage. As early as A.D. 866, Pope St. Nicholas I declared, “let the consent alone of those suffice concerning those whose union there is question,” and that marriages were “in vain” where a bride and groom were forced to marry one another against their will by their families or by other compunctions. Such words were echoed by many later popes, including Innocent III in 1198, and by Church councils, such as the Council of Florence in 1439, where “mutual consent expressed by words in person” was defined as “the efficient cause of matrimony,” and where the sacrament of matrimony itself was defined as “the sign of the joining of Christ and the Church according to the Apostle who says: ‘This is a great sacrament.’” That marriage signified “the indivisible union of Christ and the Church” – an indivisibility sealed by Christ’s loving self-sacrifice, was defined at Florence as the reason for the “indivisibility of marriage,” a primary “good” of marriage understood as central to its nature. The phrase from Genesis that the “two become one flesh” has been understood by the Church to speak to a real unity, not a mere metaphor, which was made clear by Christ Himself when He said “What God hath joined together, let no man put asunder.” In accordance with this principle, the Church has held to this day, against the hostile winds of popular beliefs and expectations, that divorce – especially when desired simply because a couple has grown tired with one another – is contrary to Christ’s law of love as expressed most perfectly in His faithful endurance of the Passion.
The Christian ideal of love in marriage is not about the passions felt during the enchanted honeymoon period, but rather is embodied in willful endurance in imitation of Christ. For just as Christ endures his Passion precisely for the sake of His Bride, the Church, each spouse must sacrifice his or her life for the good of the other rather than spend it on his or her own transient wishes and desires. Christ looks at those who witness and effect His Passion with a love that only desires to see the good in them and which offers them chance after chance of experiencing the joys of His divine life united to God. Contemplating this, a husband who is growing tired, vexed, or even disgusted with his wife is called to look at her with Christian eyes of love – seeing as for the first time her dignity as a special creature of God, as a beloved daughter of the Christ who gave His life for her, and as a dwelling place of the Holy Spirit. The same is true for a wife growing tired, vexed, or disgusted with her husband. Christian love – in marriage as in every state of life – is not about the preservation of good feelings but about the example of self-sacrifice that is the source of humanity’s true joy: the joy for which our nature, capable of such love with Christ, was created.
Just as Christ’s sacrifice is not the end of His story but rather the true beginning of ours, the Christian conception of love in marriage is built upon the hope of new life – hope for the growing faith of the husband and wife, and hope in the plans God has for their family, both physically in the procreation of children, and spiritually in the increase the family might give to the life of Christ’s Church. Christ chooses to suffer the Passion so that all men and women might share in His resurrection. Likewise, men and women enter the bonds of matrimony fully aware of that unseen hardships will undoubtedly come, but trust in each other and in God that they are doing something beautiful for Him by bringing into the world new sons and daughters that will share in their life and in the unending life of Christ. It is with such sublime thoughts in mind that the Church prohibits couples from thwarting the fruitfulness of the marital act. For again, like divorce, contraception is contrary to the law of love that is in its sacrificial nature life-affirming and life-giving.
The medieval Church, in championing marriages based on the consent of the man and woman involved, could not have done so vigorously without constant reference to the sublime and indeed intimidating conception of marriage as a life-long image of Christ’s self-sacrificing union with the Church. It was the gravity of the calling of marriage that demanded that men and women enter into it by their own free will. The Christian call of spousal love and of bringing new life into the world as increase for Christ’s Kingdom was not to be forced on unwilling parties.
Nor was it to be diminished by marriage laws whose primary aims were social, political, or economic ends not centered on the nature and dignity of the marriage calling that rightfully could be embraced only with the full human freedom of the man and woman involved. As Pope Pius XI put in 1930, “Although marriage by its nature was instituted by God, nevertheless man’s will has its own role, and a most noble one it is.”
Could the modern understanding of marriage based on a veritably sacred view of the consent of the two persons have arisen outside the Catholic Christian context which gave it life in the Western legal system, nourished it, and gave it the force it today enjoys as an unquestioned principle of civil jurisprudence? Could it have arisen from a context in which the only ends of laws were regarded to be the this-worldly goals of political, social, and economic order and prosperity, with no reference to the sanctification of persons who are asked to freely choose to follow Christ in the state of life to which He calls them, and to a life of willful, committed self-giving guided by the law of love which He incarnated in His life, death, and resurrection?
Such questions may be startling and strange to most Americans who are accustomed to assert values such as free choice, consent, and even love the same way they assert unalienable rights as “self-evident” in a kind of philosophical and cultural-historical vacuum. It is precisely in moments like the present, however – when in the name of rights and values such as the centrality of love to married life, an unprecedented challenge is being mounted against the very definition of marriage as human beings have always and everywhere understood it – that we must face the realization that cherished rights and values cannot be adequately identified or defended in a vacuum. We see instead that they are defined, championed, and challenged by historical actors with moral agency guided, as we are, by current and reactive modes of thinking.
These modes of thinking – perceptions of the nature of human beings, their individual dignity, their social orientation, and the ultimate purpose of their lives – can either derive from a coherent view of reality and show consistently the greater significance of values such as love and freedom in marriage, or from a hodgepodge of historically-rooted but dissonant principles bound together only by a mean, ideological impulse.
Such an impulse seems to be at work in our current marriage culture which values the love and free will that can bring couples together, but does not value the fullness of married love that freely chooses to honor its sworn vows and to bear the responsibilities of marriage “for better or for worse” until death. We have a dissembling and fleeting view of freedom in American culture – we fear the commitment that making a real choice for something actually involves, and thereby we distort freedom by disconnecting it from its real end, which is a fuller human life lived for one another and for God.
The ideological impulse is at work as well in a marriage culture that is enamored with the idea that those who marry lovingly and freely share their life with one another and bring each other to personal “fulfillment,” but is at the same time repulsed by the idea that always proper to such spousal sharing and personal fulfillment is the fertility of their union – the spilling over of their love and their life into the miracle of bearing children. We have a stingy view of love in American culture – we fear its natural fertility, and thereby distort it into the selfishness which is truly the opposite of true love.
Finally, the ideological impulse is at work in a culture that allows the same-sex marriage movement to gain lasting traction, but more as a secondary effect or symptom of the fundamental ideological problems just described. The same-sex marriage movement is based on the principle that human freedom involves the right to redefine such a fundamental human relationship as marriage; that a society’s definition of marriage has no formal relationship to the immutable divine law of life and of love which itself gave life to our largely still unquestioned convictions about the fundamental goods of marriage. And the same-sex marriage movement is based on the principle that fertility is unimportant to the spousal relationship; that the sexual bond is oriented exclusively toward the two acting persons and not toward a love that can transcend the couple and spill over to participate in the divine plan for the creation of new life.
Certainly there are those who will balk at the claim that same-sex couples – along with contracepting couples and divorcing couples with no grave reason for their separation – are violating by their actions the very ideal of love that our culture elevates as the only real necessity of a good marriage. Such people have every right to present arguments in defense of their conception of married love and its relation to the higher goal of the fulfillment of human life. They may reject the view presented here, one centered closely on the person of Jesus Christ, as itself a mere problematic ideology. But perhaps with a better understanding of the Catholic Christian historical foundations of the ideals and legal principles they take so much for granted, they will not wish to reject that view without giving it the further hearing it deserves in our conflicted society.
Bronwen Catherine McShea ‘03 is a first-year student at Harvard Divinity School.