The ballot question over whether same-sex couples should be able to marry in Maine boils down to the definition of the word “marriage” for many. Sociologists call it an institution, churches say it’s a sacrament and legally marriage is a contract.
Marriage, as practiced in Western Europe and North America, has changed dramatically over the past 200 years, educators, theologians and legal scholars agree. Society, religion and the law all have influenced the state of marriage in the 21st century.
Some form of marriage has existed in all human societies, past and present, the Encyclopedia Britannica states in its section on marriage. Until the Middle Ages, marriage was rarely a matter of choice. Most people were expected to marry within their own groups or tribes. Marrying outside the tribe often led to being ostracized or expelled.
Under English common law, marriage was viewed as a “voluntary private agreement,” according to information posted on the Cornell University Law School Web site. “Marriage was viewed as the basis of the family unit and vital to the preservation of morals and civilization.
“Traditionally, the husband had a duty to provide a safe house, pay for necessities such as food and clothing, and live in the house,” it states. “The wife’s obligations were maintaining a home, living in the home, having sexual relations with her husband and rearing the couple’s children.”
Most societies were patriarchal and women had no legal rights as individuals, according to Robert Milardo, a sociologist and professor of family relations at the University of Maine. Women belonged to their fathers or other male relative until they were married, and then they became the property of their husbands. It was common in most tribes and societies that a dowry be offered to the man marrying a daughter or other female offspring of the tribe.
The canon law of the Roman Catholic Church, which governed relationships between Christians until the Reformation, changed that. The church regarded marriage as a sacred union that made the husband and wife of “one flesh” and which could be dissolved only by the death of one of the spouses. Yet the church believed the free and mutual consent of the parties was regarded as essential to marriage.
Marriage laws in the U.S. are based on English common law, according to Judy Potter, former law professor at the University of Maine Law School in Portland and a faculty member of the proposed law school at Husson University in Bangor. After King Henry VIII split from the Roman Catholic Church, a gradual separation of state and church began, and the state recognized church marital law.
The Church of England rejected the Catholic doctrine that marriage was a religious sacrament, yet ecclesiastical courts continued to exercise control over marriage to promote “respectability and stability” and to discourage sexual promiscuity, according to Michael Grossberg, author of “Governing the Hearth: Law and Family in Nineteenth-Century America.” He wrote that the government justified its control by emphasizing the positive law and contractual nature of the marriage relationship and de-emphasizing its natural law and religious roots.
The colonists who came to America to escape religious persecution rejected the church’s control over marriage and endowed civil magistrates with powers to perform marriage. A religious ceremony was not required, according to Grossberg. A couple could choose to have a minister solemnize their marriage, and the minister’s authority to legally sanction it was conferred solely by the civil government, as it remains today.
While the Reformation affected the relationship between the church and the state around marriage, the Enlightenment changed how society and the law viewed the legal status of women in a marriage, according to Milardo.
“Some of this change is reflected in the writings of John Locke,” he said. “Some of these egalitarian changes we’ve seen over time developed as philosophers like Locke influenced society.”
Those legal changes were heavily influenced by America’s transformation from an agrarian to an industrial society, according to Grossberg, and “the ascendant principles of the free market.” As a result, “courts aggressively promoted a vision of marriage as a transaction comparable to others in the marketplace” and marriage became, in the eyes of the law at least, a contract that could be broken.
The ability for women to control reproduction more effectively than in the past has had a huge impact on women’s equal status in society, according to Nancy F. Cott, author of “Public Vows: A History of Marriage and the Nation.”
Although the laws moved slowly toward equalizing the legal status of a husband and wife, it was not until the effects of the feminist movement took hold in the 1970s that the laws changed, according to Potter. Anti-discrimination laws allowed women to get credit, purchase big-ticket items such as cars, and enter into contracts as individuals without their husbands’ permission. The largest changes in marriage law were seen in divorce laws.
“In 1972, men couldn’t get alimony,” Potter said recently. “There was no such thing as joint parental rights and responsibility as we have today. Equalizing spouses more in divorce — that’s where the biggest changes came.”
Today, marriage is more than a legal contract, according to Mary L. Bonauto, civil rights project director for Gay and Lesbian Advocates and Defenders.
“Civil marriage changes [over time] to reflect our changing sense of what is fair,” she said in an e-mail. “Under [our] law, marriage is more than a contract. It is also a status that transforms two people into a family. That is why the state requires permission for them to exit the marriage.”
The biggest changes in the way society, churches and the law view marriage, according to the Rev. Marvin Ellison, a professor at Bangor Theological Seminary, have come about as a result of the social justice movement. The roots of the current debate over same-sex marriage are traced by many to the Abolitionist movement of the 19th century, which used biblical texts to support opposition to slavery.
Christianity, as a living faith tradition, needed and continues to need to adapt to these changing conditions and “altered awareness of the human condition or risk becoming irrelevant, increasingly decadent, and merely reactionary,” Ellison wrote in his book “Same-Sex Marriage? A Christian Ethical Analysis.”
The Presbyterian minister pointed out that dramatic shifts in Christian teaching have occurred over the past century in regard to women’s status in leadership in church and society.
Even the Catholic Church has relaxed its rules around what it recognizes in practice as a legitimate marriage, including those performed by clergy in other denominations. The diocese in Maine also has made it easier for couples to obtain annulments so they can remarry in the church without stigmatizing the legitimacy of their children in the eyes of God.
Those views have not extended to who may be married or to the purpose of marriage, according to Bishop Richard J. Malone of the Roman Catholic Diocese of Portland. He has told his flock that history has shown that a family with one man and one woman provides the most nurturing environment for children.
“These are profound changes that will reverberate throughout our state with tragic consequences,” he said. “Changing the definition of marriage represents disturbing the nature of one of the primary building blocks of our civilization.”
Maine voters will decide Nov. 3 if they want to make the legal change to allow same-sex couples to marry.