21 So the Lord God caused a deep sleep to fall upon the man, and while he slept took one of his ribs and closed up its place with flesh. 22 And the rib that the Lord God had taken from the man he made into a woman and brought her to the man. 23 Then the man said,
“This at last is bone of my bones
and flesh of my flesh;
she shall be called Woman,
because she was taken out of Man.”[i]
24 Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh. 25 And the man and his wife were both naked and were not ashamed. Genesis 2.
The U.S. Supreme Court has written much on the institution of marriage in its recent case United States v. Windsor. Justice Alito, in his dissenting opinion, observed that, “The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.” The majority opinion, written by Justice Kennedy, observed that, “It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” In light of these pronouncements, it would be wise to reflect upon our legal heritage, and for that we turn to Blackstone.
Blackstone covers the law “Of Husband and Wife” in Chapter 15 of Book 1. He covers three major topics regarding marriage: its formation, its dissolution, and the legal effects and consequences of marriage. For purposes of this post, I will focus solely on Blackstone’s description of its formation, since that is the topic that concerns the present issue.
Regarding the formation of marriage, Blackstone observes, “our law considers marriage in no other light than as a civil contract.” He leaves the holiness of the state of matrimony to the ecclesiastical law. Since marriage is a civil contract, there must be, as with any other contract, a willingness to contract on the part of the parties. Secondly, they must be able to contract, i.e. there must be no disabilities in the parties contracting. Finally, the parties must enter into the contract according to the proper legal form.
According to Blackstone, the common law had two sorts of disabilities. First were the canonical disabilities, so declared by ecclesiastical law. Such disabilities are declared by divine law or by plain deductions therefrom. A declaration of a disability by a spiritual court made the marriage voidable under common law but not void ab initio.
The second sort of disabilities were those created by the common law. And these disabilities did make the contract void ab initio. Blackstone points out that some of these disabilities were grounded on natural law, but they were recognized not so much for the moral offense as on account of civil inconvenience. Blackstone lists four disabilities in particular.
- A prior marriage with a living spouse. The basis for this disqualification was that polygamy is condemned by the New Testament and the policy of all prudent states.
- Want of age. Just as with any other contract, the parties to a marriage contract must be of sufficient age.
- Want of consent of the parents. Reaching an age of consent by a contracting party set by common law or by statute in various jurisdiction eliminated this disability.
- Want of reason. Again, as with any other contract, a party must have adequate competency to enter into a marriage contract.
Regarding the legal form of the contract, the most ancient rule was that there were no additional formalities other than the formalities of any other contract. Subsequent acts of Parliament imposed additional formalities. “Neither is any marriage at present valid, that is not celebrated in some parish-church or public chapel, unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge.”
Blackstone does not treat same sex marriage for obvious reasons. In the words of Justice Kennedy, the law “had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” That assumption is in Blackstone’s very title, “Of Husband and Wife.”
However, Blackstone has put forth enough of a legal standard to allow us to discern how the common law would have handled the issue. Of the three elements in the formation of a marriage, the only one at issue is whether there is a disability. The question is, would there be a disability similar to the disability based on the Scripture’s condemnation of polygamy for a person marrying another person of the same sex. The simple answer is yes, but the more interesting discussion is how the common law would come to that conclusion.
It may be hard for a modern reader to understand the distinctions Blackstone is making in his discussion of marriage between how the ecclesiastical and the common law treated marriage. Blackstone clearly distinguishes the common law treatment of marriage from the ecclesiastical law treatment of marriage. The two laws treated marriage differently. The common law recognized the ecclesiastical law and the spiritual courts but did not necessarily give them full effect. He observes that the common law took no interest in the moral offense, but based a common law disability on God’s natural law against polygamy. The common law took no notice of moral offense but it did base a disqualification upon certain statements in the New Testament. How are these positions to be reconciled?
In order to understand our legal ancestors, we must understand their conception of law. Blackstone made clear as a first principle of common law that the natural law, or God’s law, discerned from Scripture or plain reason, was supreme. We moderns look at the Bible as a book intended only for individual spiritual enlightenment. This was not the understanding of our ancestors. God’s Word was binding on all creation. The only question was what was the correct application of that Word to the culture?
When the English common law disclaimed an interest in the “moral offense,” it disclaimed a participation in ministering to the particular human sin and the particular human soul. It rightly avoided interfering with the individual spiritual lives of its citizens. That was rightly left to the Church. The common law left the spiritual ministry to the individual to the Church.
However, the English common law recognized that Scripture was binding on all of life, not just the spiritual life of the soul. It had things to say regarding the good of a society. And the common law ministered for the good of the society. The English common law, in a sense, heard the words of Moses from Deuteronomy 4,
5 See, I have taught you statutes and rules, as the Lord my God commanded me, that you should do them in the land that you are entering to take possession of it. 6 Keep them and do them, for that will be your wisdom and your understanding in the sight of the peoples, who, when they hear all these statutes, will say, ‘Surely this great nation is a wise and understanding people.’ 7 For what great nation is there that has a god so near to it as the Lord our God is to us, whenever we call upon him? 8 And what great nation is there, that has statutes and rules so righteous as all this law that I set before you today?
The common law ministered for the good of society in listening to the wise words of Scripture. But it was more than that. Our ancestors understood that God ordained immutable laws in creation, such as the immutable law of gravity. They understood that fire burns. They also understood that violating God’s wise societal laws would have a negative effect on society. Justice Alito caught this concept when he wrote in his dissent,
Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage— have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
We can expect something similar to take place if same sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.
From here the natural law on same sex marriage is pretty straight forward. Scripture of both the Old and New Testaments rejects the idea. The wise words of Scripture say that same sex marriage is not good for a society. The long-term consequences are known and ascertainable now. Justice Alito would have an answer to his question if he would only look to the common law. We should heed the insights of our ancestors and Scripture.