Marriage: And Now for Something Completely Different
Is there really a good reason why marriages of more than two people should be forbidden by law? Is sex a necessary part of marriage as it is now defined by the Supreme Court of the United States? Or is it now conceivable that an intentionally non-sexual relationship can still qualify as a marriage? Is there any reason in principle why a person could not be in two distinct and separate marriages at the same time, provided that all parties involved knew about and are agreeable to the arrangement? Beyond concerns of coercion and pure issues of public health, is America now headed for a future in which every conceivable configuration of people could have their relationship sanctioned by the state as a marriage?
Traditional marriage in Western societies has been understood to be a permanent and exclusive covenanted union between a man and a woman conforming to the form of a procreative union, regardless of whether the actuality of or even the potential for procreation is present. Increasingly, societies around the world are deciding that such a definition of marriage is unacceptably restrictive. Many are choosing to jettison this traditional definition of marriage while trying at the same time to retain in law a category of relationship called “marriage.”
If this definition of marriage as a permanent and exclusive covenanted union between a man and a woman conforming to the form of a procreative union is jettisoned, then what definition is to take its place? One advocate of same sex marriage has proposed to define marriage as a legally recognized relationship with the “number one person” in one’s life. I am not a lawyer, but I can see that such a definition is vapid and an insufficient basis upon which to build America’s new marriage law system.
We might reasonably expect the Supreme Court of the United States to provide us with something more substantial. Unfortunately, the recent ruling of the court mandating the recognition of same-sex marriages by all the states does not seem to provide a definition of marriage that is any more substantial. Again, I freely acknowledge that I am not a lawyer and that the recent ruling of the court is long and complex. But the court majority states what seems to be its working understanding of what it means by a marriage. In stating the second of its four basic principles for deciding the matter, the court majority states that it understands marriage to be “a two-person union unlike any other in its importance to the committed individuals.” (page 3 of the majority opinion). So, what the court has given us is really just the “number one person” definition stated in slightly less colloquial terms. Now, is this really going to work?
I can’t help wondering how legislatures and courts will go about using this insubstantial definition of marriage to create our new marriage law system. And let’s be clear about this fact, the matter at issue is the civil regulation of this relationship that we are calling “marriage.” Rational, useable laws will have to be built using this fundamental understanding of the nature of this relationship.
So Why Only Two?
A number of tricky questions boil up when we begin to image a society in which marriage is defined, as it now is in the United States, as simply a legally recognized relationship between people who are “number one” in each other’s lives. Perhaps most immediately the question has to be raised as to why such a marriage should be restricted to only two members. Surely, now the restriction of marriage to two persons is really quite arbitrary. Yes, to be sure, we can all acknowledge that writing marriage law for a marriage of more than two people probably becomes exponentially more complicated than writing marriage law for marriages of only two people. But the mere fact that something is difficult to do is not a legal principle for why that thing should not be permitted.
So, is there some reason in principle or in the nature of marriage as it is now defined in U.S. law for why a marriage may not involve more than two people? Simply saying that a two-party marriage is the way Americans have traditionally understood marriage will not work. Those of us who advocate for the traditional definition of marriage tried that one in the recent arguments before the Supreme Court and found that apparently appeals to long-standing tradition don’t carry any water. So, why should we restrict marriage to only two parties? (See Fredrik DeBoer’s article in Politico)
As we ponder that question, let me point out that it is actually two questions. There are at least two ways in which a marriage arrangement might consist of more than two parties. First, you are likely to be thinking of the classic polyamorous, generally polygamous form of marriage, like that practiced by Mormons in the past. A typical polygamous marriage is one in which a man enters into a marriage relationship with more than one woman at the same time. In such a marriage arrangement, the man is married to each of the women involved, but the women themselves have no formal or legal relationship to each other.
Although I believe this classic polygamous marriage will now become hard for states to justify forbidding, I doubt that it will become especially appealing to progressive advocates of the new marriage definition, because this classic polygamous marriage is almost always deeply patriarchal in essence. It is unavoidably disempowering to the many wives, seating almost all legal power in the one husband. So, how proponents of the new marriage definition will be able to rule polygamy out in principle, I cannot now envision, but that it will be deeply offensive to the “new marriage” proponents I am quite certain.
But this classic polygamous marriage is not the only conceivable form of a marriage involving more than two parties. The new marriage progressives will almost certainly find the real impulse to open marriage to more than two parties coming from people who identify as bisexual. If marriage is to be seen as fundamentally a legal validation of people’s deepest sense of their identity, then what justification can the state have for barring a heterosexual man and two bisexual women or a heterosexual woman and two bisexual men from entering into a formal marriage relationship in which all three parties are formally and legally married to each other? And of course, the number of people involved need not be limited to three. We can easily imagine an arrangement of two bisexual men and two bisexual women desiring to form a marriage community of four in which their desire for sexual fulfillment and marital validation and mutual support can be recognized and affirmed by society and assured in law. Why should dyadic arrangements be privileged in law over triadic or larger communal marriages? What justification in principle can the new definition of marriage offer for forbidding people this benefit? Why should bisexual people be forced to choose between marriage and sexual fulfillment with social affirmation?
What About Sex?
But what about sex? Is sex a necessary component to a valid marriage under the new definition of marriage? Under the traditional definition of marriage which is built around the form of a procreative union, sex is understood to be a fundamental element of the very nature of marriage. Human procreation is after all sexual in nature. Consequently, non-consummation has historically be recognized as invalidating a marriage. But once procreation is removed as a defining characteristic of marriage then the question of whether sex is a necessary constituent of marriage has to be raised.
Sexual fulfillment and sexual validation has been a very large part of the arguments in favor of legal recognition of same-sex marriage, but that emphasis has hidden one of the potentially truly radical consequences of the new definition of marriage. People have always entered into marriages with a complex mix of motivations and goals. But generally the insistence on the procreative form of marriage has placed restrains on how far those motives are able to stretch the nature and meaning of marriage in the social imagination.
So, for example, there have always been people who marry for purely economic reasons. But the insistence on the procreative form of marriage, which includes not merely the conception and birth of children but also the creation and maintenance of a setting for the long-term nurturing up of children though more than one generation, has provided a sort of social foundation that has generally preserved the stability of marriage as an institution in spite of the many particular marriages that fail to fulfill this long-term procreative vision.
But now that procreative form and really sex in general are no long part of the legally established definition of marriage, why must we assume that all marriages will include a sexual component or really have anything to do with sex at all? So, might two heterosexual brothers marry each other, so that one, an unemployed single father, might get health insurance coverage for himself and his children through his employed husband/brother without any legal necessity or public assumption arising of a sexual relationship between the two brothers? Or, might an aunt who is a professor at a university marry her nephew, so that he could get discounted tuition through his aunt/wife?
Layers upon Layers
We might now explore the possibilities raised by putting scenarios of plural marriage together with non-sexual motivations for marriage. Let’s return to the two brothers who marry so that an unemployed and uninsured brother and his children might gain health insurance coverage through his employed brother. In light of the fact that it may be impossible to forbid plural marriages under the new definition of marriage, let’s consider whether the scenario with the two brothers would necessarily change if one or both of the brothers happened already to be married. If it is arbitrary to limit marriage to only two partners and if there is no inherent assumption that marriage entails a sexual relationship, then what would change in the outcome of this scenario if the employed brother were already in a sexual marriage with a woman? Under the new definition of marriage, why couldn’t a married man also marry his unemployed brother so that he could extend health insurance coverage to that brother and his children?
Well, I could probably spin out all sorts of complicated permutations on the kinds of relationships that might find legal recognition as marriages, a recognition deemed to be advantageous by the parties involved. But I think at this point I’ll leave room for the readers to exercise their own imagination. In any case, it begins to seem likely that American society is in for some chaotic times in the realm of domestic law.
I am willing to admit that these kinds of marital scenarios are not really what proponents of the new definition of marriage had in mind, but can the new definition – “a two-person union unlike any other in its importance to the committed individuals” – be used to forbid such non-traditional and non-sexual marriages? For that matter, is there any conceivable relationship of any configuration at all that could be ruled out as a marriage based on this definition? Who’s to say that for a given moment or a given set of circumstances some relationship does not possess an importance “unlike any other” for the parties involved? The standard of judgment has no objective referent. It is entirely a matter of the subjective attitude of the parties involved as to whether their relationship fulfills this definition of marriage. Surely, all that is required to determine whether any particular relationship qualifies as a marriage under this new definition is an affirmation that it does from the parties involved.
I can’t help but wonder whether we won’t in the coming few years watch as civil marriage dissolves out of existence. Recently, Brian Moylan wrote an op-ed piece for Time Magazine’s web site. Mr. Moylan is gay and in a long-term relationship, but he writes that he and his partner are committed to not marrying. He writes that he is glad that other gay couples now have the right to marry but that he and his partner do not see the value in that step for their own relationship. Indeed, he wonders whether the government really ought to be involving itself in the institution of marriage at all. He writes, “Let’s just abolish the federally recognized institution altogether and let churches bless unions and have every individual file her own taxes.” [http://time.com/3939726/gay-marriage-pressure/ — accessed 6/29/2015 at 3:30 P.M.] We may find in the end that that is the simplest solution. Though, I’m not at all sure it will be the best solution for our society and that of our children.
©2015 Gary A. Chorpenning
See related posts on this blog:
Pastor Notes #15 — A Theology of Sex
Pastor Note #16 — “Sex With a Purpose”
Pastor Note #17–Sexual Discipleship
Sermon #3–Sex and Loving God: Natures and Origins
Sermon #4 — Sex and Loving God: Brokenness and Redemption
Sermon #5 — Sex and Loving God: Sexual Discipleship
Sermons #6 — Sex and Loving God: Sin and Grace, Forgiveness and Righteousness
Sermon #14 — The Doctrine of God, Pt. 5: Male and Female He Created Them