AS THE WORLD reaches flash-point over same-sex marriage, the United States is galloping madly in one direction—to deny civil marriage to gays. Yet many countries in Europe are galloping in the opposite direction—towards giving civil status to same-sex relationships in some way. Europeans watch us warily from across the pond; many are convinced that Americans have gone collectively crazy as we let the religious right tie our laws in knots so they can achieve their homophobic goals.
No sooner had President Bush taken office for his second term than he urged Congress to pass the federal amendment defining marriage as a one-man, one-woman union. If passed, the amendment will permanently remove the definition of marriage from the reach of all courts and state legislatures. This amendment states: “Marriage in the United States shall consist only of the union between a man and a woman.”
Ultra-conservative Christians insist that our nation will be destroyed if homosexuals are given access to marriage. Says one blogger: “The secular view of marriage … is driving this country over a cliff.” This blogger disapproves of civil marriage even for heterosexuals, because, he says, “The secular ‘economic’ view of the institution of marriage actually is a strong argument for those that seek to claim homosexual relationships are equivalent to marriage.”
Many Europeans would find the blogger’s rejection of secularism astonishing. Europe is heavily secularized today. Belgium and the Netherlands have legalized same-sex marriage, and Spain is well on its way to doing so. Denmark, Sweden, Norway, France, and Germany recognize civil unions. Portugal recognizes common-law marriages by GLBT people. Britain and Switzerland are considering legislation authorizing civil unions. “What is the matter with you Americans?” I was asked when I visited Spain in the fall of 2004. “Can’t you see what you’re heading into?”
Why is the U.S. so out of step with Europe?
But deeper forces are at work. Europe is parting company with the U.S. on many serious issues, including genetically modified foods, the environment, and war. Our old allies were happy that we charged into World Wars I and II on their behalf, but now they worry about our growing habit of invading other countries—it reminds them of Germany in the 1930’s. After four centuries of frequent war right in their own back yards, Europeans have a perspective that most Americans are lacking. It is a sharp understanding of how awful a price will be paid by any people who allow their government—and their marriage law—to be run by an intolerant ideology.
As an American who lived in Europe and spent long years of association with Europeans who suffered under hated totalitarian systems, I’ve learned that we have to look hard at European history to understand the American marriage debate.
What Made a Roman Marriage
So far our religious right has been pretty successful in their propaganda. They blur the line between civil marriage and a whole array of church nuptials, trying to sell the idea that it’s all one generic type of “traditional marriage” that must be “protected” from those evil homosexuals. And they lie baldly about the real history of marriage in the Christian West. The very people who go around putting up the Ten Commandments in schools and courtrooms have no qualms about breaking the Ninth Commandment when they tell us that “marriage has always been sacred.”
But the fact is, word “marriage” doesn’t refer to anything sacred or religious. Its root is a Latin word referring to civil authority in ancient Rome. The Roman Republic began in the 4th century BCE with a state religion that required everybody to worship Jupiter and other state gods. The emperor, Jupiter’s “divine representative on Earth,” was the high priest as well, and had the power to proclaim laws by personal edict. Even though this religion had a morality code, it was somewhat tolerant and didn’t intrude directly into family affairs. The legal roots of marriage were older and deeper than the Empire. Written Roman family law drew its life from Rome’s earlier history as a republic—from the civitas, or civil government of Rome itself, and one’s citizenship in that already ancient city-state. Civitas related to the rights of private free individuals and any legal proceedings concerning these rights.
Under Roman law, civil power rested with the husband. Latin for husband was maritus, from the god Mars, state patron of masculinity. For many centuries the male head of a family had complete legal authority over his wife, daughters, slaves, and other dependents. It was his job to police morality within the family: he could make divorce happen, even kill his wife or daughters if he caught them in adultery. Latin maritare means “to wed, marry, give in marriage.” When a girl “married,” it meant she was handed over by her father or guardian to the legal custody of the maritus, namely her bridegroom. Most marriages were arranged; the hope was that couples would grow into affection and concord with time. Meanwhile, a solid marriage also protected property and lineage rights.
But even the stern patriarchal Romans recognized the pitfalls of making a marriage stick if a woman hated the choice of man her family made for her. So the Empire humanized marriage somewhat to allow for the girl’s consent. Roman law stated explicitly: “It is not sex but consent and marital affection (maritalis affectio) that makes a marriage.”
Wealthy Romans had the option of going through elaborate and expensive religious rituals with the state gods and goddesses in order to marry. But this was not mandatory. For most people, the wedding took place at home and included a family feast at which the couple joined hands and gave their consent before witnesses. There was a written contract dealing with dowry, property, etc., validated by consent between the new maritus and his mate. All legal issues around a marriage devolved from that consent.
According to gay historian John Boswell’s groundbreaking research on marriage (Same-Sex Unions in Pre-Modern Europe, 1995), formal unions between two Roman men or two women also took place. Ancient Rome’s best-known gay couple, Hadrian and Antinous, were never actually married. But history noted some same-sex unions by Elagabalus and other emperors. These rites were greeted with snickers by some conservative Romans, who thought the idea of two mariti tying the knot was a hilarious contradiction in terms. Nevertheless, same-sex unions were a feature of Roman life until 342 CE, when Emperor Constantius II outlawed them, reflecting the growing power of Christianity.
Pagan Empire to Christian Empire
The Empire had already started to go Christian under the rule of Constantius’ father, Constantine I (the Great), who was emperor from 312 to 337. From that point on, the early Church was capturing the Roman ruling class and taking control of that well-oiled state-religion machine. Jupiter and his ruler-priest were out; Jesus Christ and his ruler-priest, the Pope, were in. Churchmen wrenched the bronze doors from the pagan Senate’s government building and installed them in Rome’s first church basilica. With this symbolic act, much of Roman law and bureaucracy was rolled over to the new religion.
But Christian state religion was less tolerant than pagan state religion had been. The absolute authority of the maritus over his family vanished, to be replaced by absolute Church authority over its entire membership, complete with its own moral code. Severing their ties with Judaism, early theologians rejected the polygamy extolled in the Old Testament and adopted monogamy as their rule. They also grumbled about the marriage-related practices of the pagan Romans—from homosexuality, concubines, birth control, and abortion to mercy killings of deformed babies and permissiveness on sex with slaves. Initially, the early Christians allowed divorce in cases of adultery, but later they taught that only death or Church dispensation could end a marriage. By 389 CE, Ambrose of Milan was thundering, “What God has joined together let no man put asunder!”
However, on the civil front Christian marriage followed the same format as pagan Roman marriage. According to historian David G. Hunter, the early bishops acquired a quasi-civil standing in their communities, and some Christians had to get their bishop’s approval to marry. But weddings still took place at home with the joining of hands and the feast. The dowry contract was read aloud and signed by witnesses.
Indeed, there really wasn’t a Christian concept of marriage as a “legal” entity till the Middle Ages. By then, the Roman Church was putting less emphasis on Jesus’ scriptural teachings and more on its own authority, and would proclaim Catholic dogma by papal edict. This trend was given a boost when the Charlemagne united most of western Europe and assumed the title of Holy Roman Emperor with papal blessing in the year 800. By the 12th century, the Church had yanked the marriage ceremony out of people’s homes and required that it be done in a church. By the 13th century, the Pope had decreed marriage to be one of seven sacraments, so now it could only be dispensed by a priest. But theologians still recognized the old Roman principle that, to be valid, a marriage had to involve a contract and consent.
Surprisingly, some in the medieval Church apparently had no objections to another hold-over from Roman times. In his Same-Sex Unions in Premodern Europe, John Boswell produced some amazing church documents from Italy, Spain, and other countries that reveal pairs of men and women still establishing formal relationships involving mutual affectio. These appear to have been a sacramental rite; like heterosexual marriages, they took place in a church. Yet they also had a civil aspect, since the written ceremonies sometimes mentioned mutual ownership of property. (Perhaps this leniency on same-sex unions resulted from the Catholic priesthood’s having become a magnet for closeted gay and bisexual men. In more recent centuries, as homophobia grew in Europe, these same-sex unions vanished.)
Marriage and Luther
By the Middle Ages, the growth of feudalism and religious dissent had forced Europeans to recognize the growing civil and legal complexities of marriage, and bodies of civil marriage law began to appear. By the 15th century, the priest officiating at a marriage was deemed to represent civil authority as well as church authority, since church and state were one. In practice, “civil authority” was usually the royal government or the Holy Roman imperial government or, on a smaller scale, the municipality of a provincial capital or a small town. Civil authorities also obediently executed any condemned “heretic” that the Church handed over to them, since civil authority was seen as an arm of the Church.
But by the 16th century, the Catholic Church had become thoroughly corrupt and cruel, having killed and tortured hundreds of thousands in the Inquisition. People ranging from nobles to peasants were outraged by the Church’s heavy hand in their affairs, especially at clerical interference in their family and sex lives. When the Protestant Reformation exploded in the early 1500’s, reformers like Martin Luther declared biblical scripture to be their sole authority. This position naturally shifted their concept of marriage from Catholic dogma. In 1530 Luther wrote this withering comment: “No one indeed can deny that marriage is an external worldly thing, like clothes and food, house and home, subject to worldly authority, as shown by so many imperial laws governing it.” In another work he stated: “Not only is the sacramental character of matrimony without foundation in Scripture; but the very traditions, which claim such sacredness for it, are a mere jest.”
At the 1563 Council of Trent, the Catholic Church reacted furiously, decreeing that no marriage was valid if a priest was not present. By 1580, civil marriage was established in the Netherlands. Eventually Luther’s view of marriage prevailed all the way from Scandinavian and German-speaking countries with their Lutheran churches, to Scotland with its state Presbyterian Church.
Meanwhile, in England, Catholic marriage took another direct hit. In 1531, Henry VIII pulled his country out of the Catholic fold over his desire to divorce Catherine of Aragon, and thus created the Church of England. Anglicans retained Catholic-based sacraments and many Catholic doctrines, but they put Scripture in a primary place as the Protestants did. But Catholics, Anglicans, and Puritans continued to fight over the throne and impose their belief systems on the English people, so that by the time of the Restoration, many families had given up trying to conform to the religion of the month. By 1750 an estimated fifty percent of British citizens were simply living together in clandestine unions, and bigamy was common. So, in 1753 Parliament cracked down and passed a Marriage Act compelling all citizens to marry in public according to Anglican canon law, with marriages duly registered. Jews and Irish Catholics protested this “religious oppression.”
Scotland’s Presbyterian state church was exempt from the Marriage Act. Fiercely independent, the Protestant Scots thumbed their noses at England by allowing couples over the age of sixteen to contract a civil marriage simply by declaring themselves man and wife in front of witnesses. Couples from all over Europe eloped to Scotland’s famous border town of Gretna Green to marry! This amazing Scottish institution lasted until 1940, when Parliament ruled that Scottish marriages were legal only if conducted by a minister or civil official.
The French Revolution
Whether Protestant, Anglican, or Catholic, Europe continued to seethe with human rights issues that were spawned by the dark marriage of church and state. Belatedly, a few enlightened rulers, notably Joseph II of Austria, began to realize that imposing dogmas on a population through marriage law was a bad idea. By the late 1700’s, several Catholic countries, including Austria, were allowing civil marriage.
Unlike the American War of Independence, the French Revolution had a fierce anti-clerical strain—and it was a strain that would drench Europe in blood all the way to 1917, when the Bolshevik Revolution took down the Russian monarchy and the Orthodox Church in one stroke. In 1789, amid a huge explosion of violence, the French people rose up against both the Catholic Church that had kept kings in power and the monarchy that had protected the Church. Revolutionaries seized church property and abolished the priesthood and the religious orders. Heads that rolled under the guillotine blade were clerical as well as aristocratic ones. When it was all over, the vast, lichen-encrusted church-state structure that had run France for centuries lay in smoking ruins.
The French revolutionaries had to build a new structure from the ground up, and turned back to Roman government for inspiration. One of the first things they did when the new Legislative Assembly met in 1791 was to re-invent marriage and family life. Once again, as in ancient Rome, marriage would be defined as simply a civil contract. Priests were forbidden to perform marriage ceremonies. Instead, a couple went to the mairie, or city hall, where a city representative married them and recorded their marriage. The Revolution also legalized divorce.
In 1848 revolution again engulfed Europe, including the newly unified Italy, where an anti-church movement transformed that conservative Catholic country into a liberal reformist monarchy under King Victor Emmanuel II. The Kingdom of Italy stopped recognizing Catholic marriages, but allowed civil marriage. In Switzerland, where Catholics and Protestants had long been at odds, most of the Swiss cantons introduced civil marriage.
However, revolution failed to budge the church establishment in German-speaking kingdoms and duchies. Instead, the biggest and most powerful kingdom, Prussia, worked to unify all of Germania, both Catholic and Protestant, into one Christian commonwealth. Since Prussia herself was Protestant, prime minister Bismarck launched his Kulturkampf (culture war) against Catholicism, and—true to Protestant practice—imposed civil marriage for all. Even Catholic Bavaria, on entering the German union, was compelled to toe the civil line.
Back in England, the British government, terrified that a gory French-style revolution would land on their beaches, got busy and did some pre-emptive social reform. What to do with the growing number of dissenters, notably Quakers and Jews? These people refused to marry in the Anglican Church but couldn’t legally marry, since (as per the 1753 Marriage Act) all marriages had to be performed by a Church of England minister. In 1836, Parliament finally caved in and passed a new marriage law for England, Wales, and Ireland that legalized civil marriage for all but the royal family, and recognized Quaker and Jewish marriage practices. Those who wished could still be married in their Anglican parish, whose minister was viewed as a representative of civil government.
Marriage in the New World
When Spain and Portugal settled the Americas, Catholic marriage dogma was exported wholesale to their colonies. But when England started colonizing North America in the early 1600’s, the bitter old marriage battles emigrated to our shores. Many American colonists were fiercely protective of established religion—but which religion? In Virginia, where the Church of England was the official religion, colonists could only marry in Anglican ceremonies. But in Protestant New England, the Puritan governors tolerated civil ceremonies—at least until 1668, when they clamped down and required that couples marry in church. A Puritan minister was regarded as representing civil authority. Meanwhile, in Rhode Island, Pennsylvania, and New York, a certain level of tolerance reigned as various groups of dissenters—Dutch and Flemish Protestants, Walloons, Quakers, Anabaptists, Mennonites, and free-thinking Puritan refugees from New England—had to co-exist. Here the church and civil authorities had to accommodate a colorful range of marriage practices.
After the 1776 American Revolution, as the thirteen colonies struggled to become “one nation,” they ran into the same problem as the unification movements in Europe. Rival churches and sects—and all their old marriage controversies—emerged as a deal breaker, what with Anglican authorities in Virginia refusing to recognize Quaker marriages in Pennsylvania, and so forth, so the only solution was to throw out religion altogether and establish a secular state. However, unlike many European countries, the U.S. Congress established no national marriage laws. The 1791 Bill of Rights prohibited Congress from “passing laws with respect to religion.” The feds were content to let the states regulate marriage and divorce (and other “moral” matters such as sodomy and abortion). When Spain and Mexico ceded their American territories to the U.S., these new states gave up official Catholicism and legalized civil marriage.
But despite the formal separation of church and state, the dominant churches kept a strong hold on American society. Many of the new states injected Christianity into their constitutions, even barring non-Christians from the polls and public office. As recently as 1840, the state of Connecticut was still balking at dis-establishing its Protestant state religion.
During the 19th century, as the West was settled by whites, many of the pioneers who struck out into those vast wild lands had no easy way of getting “hitched.” As yet no churches or civil authorities were established out there. Many couples spent their first years together in common-law marriages. This was especially true of trappers, traders, and mountain men who lived with the tribes and often took Native American wives. When Catholic missionaries and “circuit riding preachers” arrived in those territories, they tried to break up these “country marriages,” or at least get couples to tie the knot in church. (The Montana ranch where I grew up was founded by trader John Grant, who had several alliance marriages with different tribes, but finally married his favorite wife, Quarra, in the Catholic Church.)
Mormon marriage belief wrote a violent chapter in U.S. history. In 1844, the Church of Jesus Christ of Latter-Day Saints (LDS) settled Utah territory and legalized polygamy there, following the example of Hebrew patriarchs in the Old Testament. After the Civil War, Utah met conditions for statehood but was refused admission to the Union because of polygamy. In 1882 Congress passed a law making bigamy a federal crime. This done, the federal government hammered mercilessly on the LDS church, eventually sending troops to Utah, seizing church property, jailing many of its elders and holding them without trial, and compelling women who were happy with polygamy to testify against their husbands. The U.S. Supreme Court supported the federal position. In 1890 the church finally buckled and agreed to foreswear polygamy, which is prohibited in Utah’s state constitution. However, today there are still an estimated 60,000 “antique Mormon” men who live in remote rural areas of Utah with numerous women and large families, but avoid calling it “marriage.”
Our Peculiar Heritage
Those who try to define marriage as an unchanging institution, a sacred bond, need only look to Continental Europe to find an entrenched tradition of secular marriage. With few exceptions, only a civil marriage is recognized by the state, and in many countries the clergy is prohibited from performing a religious ceremony until a civil marriage has transpired. France is still the staunchest in protecting civil marriage. In a country where only eight percent of the population are now practicing Catholics, most people choose civil marriage, conducted in the mairie (city hall), an institution that can be traced back faintly to Roman Gaul.
Spain is a more recent enthusiast. Just a quarter century ago, fascist Spain had Catholicism as its state religion; citizens could be legally married only in a nuptial mass by a priest. Forty years of Catholic fascism gave the Spanish a sudden appetite for secularism after Franco died in 1975. Today, with the country governed by a constitutional monarchy, perhaps only ten percent of the population practices Catholicism. Civil marriage is now legal, along with pre-marital sex, birth control, and (within a few limits) abortion. And the new Socialist government is in the process of passing a national law legalizing same-sex marriage.
In the U.S., even after civil marriage was legally established, the states remained more rigid than some European countries when it came to related “moral” issues—divorce, birth control, abortion, and sexual conduct. As recently as the 20th century, state laws served up a panoply of religiously motivated laws. Some states limited the number of re-marriages allowed to widowers or widows. Some barred divorcees from remarrying, especially those who were divorced because of adultery—indeed, the U.S. Supreme Court finally had to force North Carolina to extend “full faith and credit” to divorces granted in other states. Forty states barred whites from marrying non-whites—not only blacks, mulattos, and Native Americans, but (in California, for example) Chinese, Japanese, and Malaysians. Fully 27 states barred from civil marriage the mentally ill, the retarded, “wayward women,” and others considered “eugenically unfit.”
After World War II, the states’ religious hostility to divorce, adultery, and pre-marital sex finally did begin to wane. In 1965 the U.S. Supreme Court overturned a Connecticut anti-contraceptive law, saying that married couples have the right to decide not to have children. In 1967 the Supreme Court struck down all state laws banning interracial marriage. State abortion laws didn’t fall until 1973 and Roe v. Wade. State sodomy laws began to bite the dust about the same time.
The objections to same-sex marriage have a larger agenda than just an “anti-gay” one: the religious right has plans for straight people, too. It’s shocking for someone of my generation to see the U.S. tightening up again on marriage-related laws. When I was young, I personally saw the arrival of badly needed no-fault divorce laws in many states, and got my own no-fault divorce in New York in 1973. Today the religious right wants to make divorce harder in the U.S. Several states have already legalized so-called “covenant marriages,” an option that makes divorce more difficult.
This movement is nothing less than an attempt to turn back the clock and move civil marriage towards a pre-Reformation “sacramental” type of definition. But it is completely false to say that this step would return marriage to a more “traditional” or “unchanging” state. It was Martin Luther, the first Protestant reformer, who conceived of civil marriage as a non-religious alternative for people who declined to participate in state religion, who were trying to escape oppression by a particular state church.
Today ultraconservative Catholics and Protestants have buried the old hatchets and are working together, touting the “sacredness” of marriage and trying to deny it to GLBT people. They’ve had some recent legislative success in the latter pursuit, but the ultimate test will be in the courts, where right-wing fantasies about what constitutes “traditional marriage” will have to run up against legal history and fact.
A few years ago, the Texas courts opened a can of worms in the case of Littleton v. Prange, which ended up voiding a marriage because it was between two men. One partner had had a male-to-female sex change. Gender, said the court, can’t be altered but is determined at birth by sex chromosomes, XX for female and XY for male. The Kansas Supreme Court came to the same conclusion in a similar case, In re Estate of Gardiner. However, in real life there are numerous people whose sex chromosomes are configured as XXX, XXY, XYY and even X. Will these rulings create a new class of persons to whom civil marriage can be denied because their chromosomes don’t conform to the religious right’s idea of “one man and one woman”? The Olympic Games tried for forty years to ensure that only “real women” competed by testing their sex chromosomes. But the testing revealed so many anomalies, and was so despised and resisted by athletes, that the International Olympic Committee finally abandoned the practice. The right court case could invalidate the proposed Federal Marriage Amendment before it becomes law, by showing that there is no neat forensic way to determine what a “man” and a “woman” are.
Another potential legal challenge looms from the large and increasingly vocal Muslim community in the U.S. The Koran teaches that a man may have up to four wives, provided he can care for all of them adequately. Many Muslim immigrants already have all their wives in the U.S. with them, but only one wife is “on the books,” since U.S. state laws uniformly prohibit bigamy. Other immigrants leave most of their wives in their home country and send money home to them. In my opinion, the Federal Marriage Amendment has a secondary agenda: to forestall American Muslim demands for the right to practice polygamy as a matter of religious freedom.
Clearly, the Federal Marriage Amendment is the leading edge of a broader attack on church-state separation in the U.S. If Americans don’t protect that core principle, we will surely be living through those long, bloody religious wars that are so heartbreakingly familiar to Europeans.
Patricia Nell Warren’s novels include The Front Runner, Billy’s Boy, and Harlan’s Race.
