Our way of doing marriage today is seriously flawed. It is based on an unnecessary confusion of the civil and religious jurisdictions and on an unhealthy misunderstanding of the act of marriage itself.Our way of doing marriage today is seriously flawed. It is based on an unnecessary confusion of the civil and religious jurisdictions and on an unhealthy misunderstanding of the act of marriage itself.

Historically, in our Western civilization, marriage has been understood and practiced as a contract between two persons. The two persons must each have the capacity to make a contract, must have the explicit intention to marry, and must freely make that promise public in some manner. The spouses legally accomplish their marriage without the mediation or intervention of any outside authority whether civil or religious. The spouses marry each other: they are the ministers of the ‘sacrament’ in the religious ceremony; they are the agents of the marriage in the civil ceremony. The presence of outside authorities is solely for the purpose of witnessing the marriage. This historical understanding of marriage persisted until the modern era. Remnants of this understanding can be seen in the several forms of ‘common-law’ marriage recognized by various civil authorities today.

So, how did it come about that we find ourselves having to ask either a civil magistrate or a religious official or both for permission to marry.

Our ceremonies and legal forms for marriage come from ancient Rome. Marriage contracts were arranged by negotiations between families or between representatives of the persons to be married. Up until the time of Caesar Augustus (reigned: 27 B.C.E. to 14 C.E.) neither religious nor civil authorities were required for validation of the marriage. By custom and by law, the two persons (the spouses) married each other by their intention and by their public promise to each other.

In his revisions of the legal codes, the leges Iuliae, Augustus introduced the legal requirement that Roman citizens must marry in the presence of a representative of the emperor. This requirement was introduced to give the state a say in: 1) the disposition of property and other forms of wealth on the death of a spouse or the dissolution of a marriage, 2) who could marry whom (thus controlling who could or could not be a Roman citizen), 3) how a marriage could be dissolved (rarely), and 4) population control (the Empire desperately needed more babies: bachelors and childless couples were fined).

The Christian communities of the Roman Empire followed the traditions of their families or clans. There was no established or official form of Christian marriage. No church authority was required for a Christian marriage; and only Christians who were Roman citizens were required to have a civil authority present.

When the Roman Empire in the West started to fall apart, the Roman Church took over many of the functions of the state. In the case of marriage, the church supplied the civil representative required by Roman law. The Catholic Church did not employ its own rituals for marriage until the 12th century and did not establish as doctrine the sacramental character of marriage until the 16th century.

This confounding of church and state jurisdictions concerning marriage dominated Western polities until Napoleon promulgated his reform of the civil code which drew a sharp line between civil and religious authority. In the Napoleonic Code, the only type of marriage recognized by the state is a civil marriage, a contract conducted by the two spouses in the presence of a civil magistrate. Religious marriages are not recognized as valid for state or civil purposes.

The Napoleonic civil code, of course, was not implemented in the English-speaking world. In Great Britain, the confusion of civil and religious authority regarding marriage was greatly compounded by Lord Hardwicke’s Marriage Act of 1753 which was the very first statutory legislation requiring a marriage ceremony. It required that every marriage must be performed in a church by an Anglican priest. (This legislation was introduced to counter the Scottish practice of ‘private marriage’ which required no banns and no official witnesses.)

After independence, many states of the USA required licenses primarily to prevent types of marriage judged to be inimical to the body politic, such as, bigamy, polygamy, interracial marriage, et alia.

Nonetheless, in all instances, whether civil or religious, the ancient principle has always been consistently maintained: that the two persons marry each other and that the civil and/or religious officials are merely witnesses to it. To this very day, the Canon Law of the Catholic Church declares the spouses to be the ministers of the sacrament of marriage and the priest or deacon to be the witness to the act.

It is time for us to enshrine this principle in our marriage laws and to separate the religious witness from the civil witness. It is time to get both the state and the church out of marriage as a business and as a contract they control and into their appropriate, supportive roles as trustworthy witnesses.

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WCTimes  04 September 2013

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Nick Patricca is professor emeritus at Loyola University Chicago, president of Chicago Network and playwright emeritus at Victory Gardens Theater.