Tuesday, April 2, 2013

So What is Marriage Anyway?

Marriage is historically understood as a union between a man and woman. Efforts to describe just what kind of union reveals its multifaceted character. The most common models understandings include marriage as a social practice, a religious rite, a legal contract, and a civil institution.

First, marriage as a social practice is the most fundamental. As a social practice, marriage precedes political society and the modern state’s establishment of marriage as a legal institution. Marriage brings together a man and woman into a new relationship between them and into a new standing before the larger society. For most of human history and in traditional patriarchal societies today, fathers arrange the marriages of their children. Arranged marriages usually are endogamous in that they maintain existing kinship networks. Marriages between relatives sharing some degree of consanguinity reinforces tribal or clan identity. Of course, families arrange exogamous marriages outside the existing kinship ties as well in order to establish new ones. Enhancing the economic well-being or status of the families motivates many if not most arranged marriages. As a social practice, traditional marriage serves the related functions of regulating sexual behavior, establishing the legitimacy of offspring, and defining property arrangements. Romantic love or passion between spouse either do not constitute a crucial aspect of arranged marriages at all or is expected to emerge during the marriage. The rise of modern romantic marriage, however, fundamentally altered traditional practices. In the West and in other less traditional societies, modern marriage is understood as a matter of individual choice.

Second, because most societies contain one or more religious traditions, marriage is also considered a religious rite. The ceremony informs the event with religious meaning as the couple assumes a new standing before God. This usually means some religious official presides over the ceremony, confers divine blessings on the union, and provides some sort of theological understanding of marriage within that society‘s religious tradition. Marriage as a religious right endures even in today’s more secular age. In most nations, the state authorizes religious officials to conduct marriages.

Third, because marriage involves some agreement between parties, whether between family heads in an arranged marriage or between individuals in modern marriage, it is also described as a contract. In fact, most civil codes today define it as such. When a proposal for marriage is agreed upon, the couple exchanges promises regarding rights and duties. Marriage differs from other legal contracts, however,  in that the parties rarely write out the rights and duties as clauses in a  formal agreement.

Finally, marriage has become in modern societies a civil institution. The modern state has assumed regulatory powers over marriage through licensing. The state establishes licensing procedures and specifies who may enter into marriage contracts and what kinds of marriage contracts it will recognize. The state accords recognition based upon the interests of the state.

It is within marriage’s status as a civil institution where the battle over same-sex marriage takes place.

As a social practice, religious rite, and maybe even a legal contract, any two people of any  gender or relationship can marry. Same sex couples can make an informal contract involving  vows of love and fidelity and affirming rights and duties. Same sex couples can secure religious blessings with the tradition of their choice. And same sex couples can present themselves before their family and friends as a married couple.

The question is, must a state recognize and grant legal sanction to same sex marriages?

In making a case for same-sex marriage, homosexual rights advocates appeal to these multifaceted attributes of marriage. They note marriage’s status as a social, religious, contractual, and institutional character. They elaborate on the incredibly diverse marital practices both in the past and today. In essence, they argue that marriage is a mere social convention. As societies change, so do their conventions. This anthropological or philosophical observation often leads, either implicitly or explicitly, to the legal argument that restriction of marriage to heterosexual couples is a residual and outdated convention, usually based upon religion, that illegally singles out and  discriminates against homosexuals.

They ignore the fact that, while marriage is a social convention, it is based upon certain facts of nature. Laws confining marriage to heterosexuals are not based upon bigotry; they are based upon biology.

The next post will explore that question.

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