Legislative Decision-Making and Same-Sex Marriage

The History Of Marriage

A review of the history of marriage shows the institution has been a fluid paradigm, changing with culture and societal norms of the times. Polygamy (multiple wives at the same time) was common in ancient civilizations in the Middle East. In the Bible, marriage was traditionally polygamous. Abraham was married to both Sarah and Hagar and had children with each (29 Genesis 11:23, King James Version). Solomon was said to have had more than one thousand wives. Polygamy was common in Islamic cultures. The Quran permits a man to have up to four wives (Quran 4:3). Even today, polygamy is found throughout the Middle East.

The Catholic Church was not formally involved in marriage ceremonies until the Middle Ages. Up until the 12th century, a priest present at a marriage performed blessings and prayers during the ceremony. The couple would offer their own prayers. The priest would then ask the couple to agree to be committed to each other in the presence of all attendees (Glavich, 2000). From the 5th to the 14th centuries, the Roman Catholic Church conducted special ceremonies to bless same-sex unions, which were considered spiritual though not sexual unions (Boswell, 1994).

In 1563, the Council of Trent defined Catholic marriage as a ceremony celebrated by a priest in a Catholic church before two witnesses. By the 17th century, the wedding ceremony was a religious event in all the countries in Europe. In England, weddings in the 13th century among the upper class became a religious event. Even then, the church only blessed the marriage and did not require the parties to make a civil, binding commitment to each other (Batchelor, 2003). Marriage law, as it operated in England from the 14th to 19th centuries, was a mess. The church asserted that mere verbal consent, freely given and duly witnessed, constituted a binding marriage. But common law denied the effect of the transmission of property as a result of these private contracts.

In 1753, England passed the Marriage Act. This statutory legislation was the first to require a formal ceremony taking control of marriage from individuals and the church and turning it over to the state as a legal entity (Probert, 2009). From that point on, marriages that had not taken place in the Church of England or a synagogue were rendered invalid, although church law had regularized the ceremony of marriage by insisting bans be read and license fees paid.

Before 1753, civil law required only that a marriage could be proved to have taken place. After the Marriage Act, the only legally recognized marriages were those performed by the Anglican, Jewish, and Quaker traditions. This meant Roman Catholics and members of other Christian congregations as well as atheists, Muslims, Hindus, or other religious bodies had to be married according to Anglican rites and ceremonies they did not support and by a priest they believed had no authority. If they did not do so, they had no legal rights as married people.