C4M – 10 Reasons – Number 2

Here’s Myth number 2.

Myth 2
Marriage has always evolved

Marriage between a man and a woman is not a recent social invention. Everyone knows that marriage predates law, nation and church. It goes back to the dawn of time. Yes, matrimonial law may have been tweaked over the years, but the law has never fundamentally altered the essential nature  of marriage: a lifelong commitment between one man and one woman. Same-sex marriage would rewrite hundreds of years of British legal tradition  and thousands of years of cultural heritage.

Hmmmm….. It’s true that the marriage laws in the eighteenth century helped to formalise the relationship, but marriage as a monogamous relationship between just a man and a woman has a pedigree of centuries if not millennia.

What do we think?

Peter’s Verdict

Reading through the comments below, we can see the kind of debate that *should* be going on in the national conversation. We’re getting to the heart of the issue, what marriage has meant in the past and what it is moving to meaning today.

What is most pleasing is that those who wish to  revise the law recognise, on this thread at least, that introducing gender-neutral marriage will have a profound impact on the way that the marriage law views sex and procreation. Yes, by all means let’s change that but let’s be honest about what we are doing.

Final Outcome – This is a major score for the pro-traditional marriage argument, but it needs to be argued more widely and we need to get proponents of change to admit exactly what will have to change

68 Comments on “C4M – 10 Reasons – Number 2

  1. Myth 2 finds expression in the treatment of opposition to same-sex marriage as a circular reasoning fallacy.
    Liberal Len: ‘Explain why marriage should be restricted to opposite-sex couples’
    Evangelical Eric: ‘Marriage has been defined from time immemorial, by custom and by law as a life-long union between one man and one woman.’
    Liberal Len: ‘But that’s circular reasoning and begging the question. You’ve asserted the conclusion in your answer before proving it!’
    Eric is arguing (as even lawyers do) from precedent. Len wants to argue from pure deduction. The key difference is that we are discussing marriage as an institution, not as a complete innovation. Yes, institutions evolve, but only in order to further their societal value.
    So, Len’s question would be better expressed: ‘explain the social purpose of restricting marriage to opposite-sex couples. Why would same-sex marriage violate universal societal values or be a detriment to society?’

  2. I think the line of argument here would be better expressed as: a) a lifelong commitment between man and woman has been at the heart of the western tradition since the ancient world; b) the function of marriage as a way of structuring the relationships between men and women to ensure the proper production and rearing of children has always been the focus of the institution. (OK! Less catchy!! But we need (eg) to come clean about polygamy etc.)

    • I think you’re right. Part of what I want to do with these posts is work together to highlight where the arguments are faulty or in need of improvement (for example, the first “Myth” which was not quite robust).

      • So, to challenge the robustness of the procreative argument, what of spouses without natural children?
        Why *doesn’t* sanctioning the marriages of those who adopt (or those who can’t or don’t want children) impair the function of marriage in structuring heterosexual relationships to ensure the proper production and reading of children?
        Gay marriage advocates will ask, ‘why them and not us?’

        • Isn’t this covered in the Harvard paper? The fact that any particular male/female married couple cannot (or will not) procreate doesn’t detract from the concept that the normative outcome of male/female sex is procreation. In the same way, just because a football team loses a game doesn’t mean that the aim of football teams is to win.

          • Only that the Harvard paper sees procreation as the aim of marriage when it’s biological kinship.
            Even if you say that, by constitution, same-sex relationships ‘detract’ from the concept that the nornative outcome of marriage is procreation, How can sexual union between infertile spouses supports the concept of procreation? Because it’s aligned with procreative behaviour? It points towards procreation?
            Instead, I would suggest that marriage establishes a set of moral obligations that are predicated upon freely given consent and presumed to be ratified by an act of sexual union that is essential to human survival. To predicate those obligations, known as kinship, upon anything less than this is not marriage.

        • I think your first two paragraphs make progress David, but I have difficulty in seeing why in the rest of your argument on the ideal of kinship of the families of spouses created through marriage can’t be extended? Granted it has not in the past but what actually legal meaning is there in the term brother-in-law, for example? In a social sense in-laws may embrace each other in a social extension to the family, or they may not. When I went to meet my partner’s four half brothers and sisters in New Zealand that he discovered through Genes Reuinited they not only accepted me as well as him but introduced me to friends and neighbours as their brother-in-law.

          • I appreciate your personal bond, but although I understand your personal connection is precious, how does this affect the framework of legal presumptions in the absence of written contracts, consideration, or a will? People disagree, desert each other and die intestate and the law has to make decisions about the intent and rights of different parties without recourse to an explicit legal framework. The law resorts to principles of human survival, historic custom and jurisprudence.

            Is it any wonder that those responsible for Civil Partnership legislation balked at defining adultery as grounds for dissolution?
            Biological kinship establishes legal presumptions based on the possiblities that could arise from sexual union. Those weighty presumptions are based on the importance of an act (itself presumed by marital consent) that could potentially give rise to a new dependent life. How does the law attach the same level of presumption to another act which doesn’t hold that same level of importance to human survival? Do we apply the same legal presumptions to any sexual act between two parties?

            • I thought we were talking about kinship, i.e. in-laws, not the sexual or otherwise bond between partners? Can you saw what actual legal difference does it make to two men that they become brothers-in-law? Perhaps it does and you can tell me but so far I am not aware of any except in social understanding, which, can change.

              Your point about bonding and consummation does not account for the mariage blanc. Are you aware the Archbishop and Mrs Ramsey had a mariage blanc, so I have been informed by a reliable source. Did that render their marriage invalid?

              • Kinship is family responsibility. You limit this to extended kinship.
                Of course, social understanding can change, or more likely, social innovation codified as law. What can’t be imposed as law is the basis upon which the whole society predicates the foundation of kinship. This arises from what is termed natural affection. In marriage, it is established by consent to something. The presumptions of law are based on the capacity to surrender to each other in sexual union. It is the importance of this act that ratifies the marriage.

                The moral responsibilities implied by an act of sexual union are far greater than any social innovation or alternative act can establish.

              • In respect of a mariage blanc, the law is concerned with the constitution of the marriage at the time that vows are exchanged.
                Non-consummation, infertility and impotence and the choice to forgo parenthood, can be resolved between the spouses, unless one of them is so aggrieved as to seek legal redress. Then the presumptions of what marriage commitment uniformly implies come into force.

        • I think you have to start from an earlier question: why, of all the possible relationships that human beings form, have we picked out marriage between a man and a woman as worthy of particular legal recognition? (Even in those societies such as Greece and Rome that accepted homosexual activity.)

          And the obvious answer to that is that the state has an interest in the continuance of the population in a way that it doesn’t for (say) people feeling nice about each other. Most relationships between a man and a woman are liable to produce children: and that is why we pick them out for special legal treatment. (Stability of partnerships in general seems rather a poor argument: why should the state have an interest in the stability of a partnership absent children ? Mightn’t that actually be harmful (eg in reducing mobility of labour)?)

          With that general point in mind, what do we do about those (different sex) marriages that are not fertile? It’s very hard to imagine how these could be excluded without massive state intrusion into personal lives, or with a degree of certainty that can’t exist. (Most cases of infertility are not absolute.) So in general these should be treated as exceptions because to remove them has a higher social cost than to tolerate them. (But that rightly leaves open the possibility that some marriages that are now legal might no longer be if a good case against their utility could be made. Certainly, in the Catholic understanding, any marriage that was not consummated or that was entered into with the intention not to have children could be annulled, so an adjustment to positive law to bring it into line with canon law wouldn’t be objectionable.)

          Another issue here is if ssm were argued for on the ground that, for those who want children, they should be allowed to marry. Few points here: 1) I haven’t seen many arguments by the SSM lobby on the ground (ie marriage only for those who intend to have children). So it’s rather a theoretical issue. 2) The debate about whether we’d wish to encourage same sex couples to have children is one that we’d need to have. 3) Even if we concluded in 2) that we did, the greater liability of different sex couples to produce children unintentionally would require different institutional recognition from a couple where child rearing required considerable planning and outside aid.

          [But the overarching conclusion for me here is that Myth 2 as it stands without mention of procreation and raising of children as a norm is flawed.]

          • “I think you have to start from an earlier question: why, of all the possible relationships that human beings form, have we picked out marriage between a man and a woman as worthy of particular legal recognition? (Even in those societies such as Greece and Rome that accepted homosexual activity.)”

            The answer to that question, from a historical perspective, is not the stuff of fine Christian sentiment. As Gore Vidal pointed out, rulers have always preferred married men; if the employee disobeys and gets sacked, then his wife and kids will starve too. That makes for useful docility.

            And, of course, the world is overpopulated. One wonders just how high the Earth’s population has to get – 12 billion ? – before notions that the state needs to uniquely privilege necessarily procreative unions get seriously challenged. Are those who want to have children going to stop having them because of SSM? That hardly accords with human nature, and the desire (among some, not all) humans to have offspring.

            • @cerebusboy:disqus

              1) On the ‘stuff of fine Christian sentiment’, if creating useful dependences was the sole reason for state action (a rather implausible hermeneutic of suspicion, in any case if I may say so) then why not allow same sex dependency by encouraging same sex couples to marry? (Particularly since the usual classical model of the active/passive partner already embodied such a dependency relationship.) Realistically, even if you attribute the most Machiavellian motivations to rulers. ensuring the rearing of the next generation is going to be one of the most important. (How are you going to conquer those barbarians otherwise?)

              Reliance on Gore Vidal as an historical commentator is a guarantee of both entertainment value and inaccuracy.

              2) Even if the problem of overpopulation is accepted (and you’d struggle to argue that in Scotland!), the effective raising of the next generation is still necessary (unless we’re to adopt a zero child policy). On whether the child rearing type marriage is undermined by SSM, I suppose we’re primarily back to the discussion in Myth 1. But, as far as Myth 2 (well, my revised version anyway) is concerned, you’d need quite a strong argument to extend an institution fit for one purpose to a completely different situation. (After all, I suppose we’d muddle through somehow if we dubbed hospitals ‘play centres’ and invited kids to swing off the bed lifts . But it’s difficult to imagine it being a good idea.)

              • Gore Vidal is perhaps the finest essayist of the past fifty years, and a noted historical novelist. If you’re going to criticise him then citing some actual examples of his errors would be helpful (recognising that Vidal was fending off the tenure-seeking scholar squirrels thirty years ago). I’m aware (and, interestingly, asked the man himself a question about this) of Clive James’ position on Vidal’s interpretation of Pearl Harbour/Japanese intentions in the Second World War. One can understand the conservative objecting to the author of Julian and The City and The Pillar of course ;-).

                Let’s not forget that we lived in a patriarchy (although the modern conservative has to brush over the women-as-property realities of the supposed golden chain of the tradition of marriage). The ”wife and kids will starve” line hardly would apply to two men in a patriarchy, would it? Aside from which I have of course conceded that States historically had good reason to oppose all forms of sex other than the permanent stable and recreational. I’m asking how useful, let alone binding, such a model is in the overpopulated Year of Our Lord 2012.

                Your last analogy doesn’t work, as even the conservative posits multiple purposes for marriage that are worth societal support.

                • @cerebusboy:disqus

                  1) On Gore Vidal. If you (implausibly) want to continue to argue that Gore Vidal’s bon mots are reliable, particularly on ancient political philosophy, I’ll leave that for another day! It’s not at the heart of the present discussion.

                  2) You now seem to accept that past states did have reason to support procreational relationships (and thus that marriage is at least historically characterizable that way). Noted.

                  3) Raising children properly is still a key interest of the state. Nothing you’ve said has challenged that. (Unless you want us to die out.)

                  4) Your final sentence: I’m sure that some conservatives argue all sorts of things. This conservative insists that the function of marriage is childrearing and that any other subsidiary purposes that accrue to it are indeed subsidiary and must be compatible with that prime function. (That’s the classic, scholastic understanding of the institution.) So the analogy does work because being the function of being a hospital and being a play area are (at best) in tension with each other. Analogously, the function of marriage between a man and a women as regulating childrearing is in tension with whatever function SSM is supposed to serve (clearly not childrearing). (And I say that not to be dismissive, but because I have yet to see a clear explanation of what social good is served by encouraging life long partnerships between same sex couples: I’ve already given my reasons for rejecting social stability as a possible function.)

                  [Bearing in mind Peter’s injunction to keep to the point, I think we’re straying on to discussing a point that’s not on the ’10 reasons list’ but should be: the procreative function of marriage. I think it should be there. You don’t. But in either case, I think we’re agreed in thinking the treatment of ‘Myth 2’ problematic.]

                  • 1) Actually, I’d say it’s relevant. You’re criticising Vidal’s credentials or claims through mere name calling (albeit of Vidal, not me) is I think indicative of the sort of “pick a side and come out swinging” partisanship that mars these debates. For the record, I find the ‘left’ diminishing titans of the ‘right’ in similar fashion equally unfortunate But I of course accept that you would have responded with more depth and seriousness if you viewed GV’s claims in any way directly pertinent to this discussion. And I said nothing about ‘bon mots’. You may not like the fact that Vidal’s essays and (to a lesser extent) novels are as prized as his mere bon mots but a fact it remains. I would not build any kind of argument on cocktail party witticisms.

                    2) I note you’ve noted ;-).

                    3) We’re at no risk of dying out. Compare and contrast with the contexts that supported many a all-non-procreative-sex-acts-are-destructive, life and death, law or proof text. The primacy of romantic love is very far from being a gay phenomena; that a number (many? most?) of people marrying today care more for “finding their soulmate” than they do antiquated BCP pieties does not represent a threat to the human race or the welfare of children. I think many such people would indeed say that conflating marriage with ‘having children’ is in itself problematic; the “is it time to have kids and can we afford it” style discussions of Modern Couples, rather than denoting mere selfishness, surely indicate that they appreciate the challenges and responsibilities of raising children . Bringing marriage law in line with on-the-ground realities is not the same thing as actually changing its essential and necessary nature.

                    4) It’s reasonable to assume that the functions of a hospital would suffer if it became a play area, with children gallivanting through ICUs or ‘bed lifts’. Unless one subscribes to a crazily literal view of SSA ‘destroying marriage’, which I would maintain is untenable, then the analogy is a poor one.

                    • 1) I bite my tongue. I move on.
                      2) Good!
                      3) and 4) Bearing in mind what I said earlier about keeping to the point, it’s worth focusing on the fact that here we’re arguing about the claim ‘Marriage has always evolved’. I think we’ve both accepted that. We’ve also both accepted that, up till now, procreation and child raising has been one of the key features of marriage. So the difference between us is (I think) is that you believe this key feature should be dropped, whilst I don’t. That’s not an argument about what people in fact say about or believe about marriage but what they should say and do: a normative rather than descriptive issue.

                      So then we get stuck into questions of what sort of institution best raises children. I’d claim that the empirical evidence clearly points to ‘traditional’ marriage being the best institution. You’d (presumably) deny that. But let’s assume for the sake of argument, that there was clear empirical evidence that raising children within traditional marriage was the best way of raising them, wouldn’t it then be clear that any alteration to that institution which blurred its purposes and altered its nature should be avoided?

                      If you accept that conditional (and I’d argue it’s difficult not to) that throws the argument back onto the empirical question of the effectiveness of traditional marriage as a childrearing institution. And that’s indeed where I think the central debate should lie.

                    • 1) Shame William F Buckley, Jr or the Israeli lobby never took that lesson, eh? ;-)

                      My point is that romantic love, marriage-as-finding-one’s-soulmate has been in the ascendency for decades (perhaps, not uncoincidently, since feminism). It has demonstrably not led to a wide scale abandoning of the importance of correctly raising children, let alone the we-need-the-state-to-stop-us-dying out. How, exactly, will two men marrying stop the effective raising of children by heterosexual couples? Has divorce? Has the ascendancy of romantic love? Would you agree – irrespective of your own (dare one say theological?) understanding of marriage, that the push for SSM is in some ways a logical result of wider societal tends and changing views on the necessary elements of marriage and their intrinsic importance? You presume too much. Even if true, that children are best raised within heterosexual marriage need not mean that marriage is only valid if geared to that end. And of course the State has long allowed the raising of children by units other than their-biological-parents-united-in-marriage.

                    • There are many lobbies (and people) that would benefit from restraint in speech.

                      I’d have thought that the sort of trends you refer to have demonstrably led to worse outcomes for children. (And yes, I’d agree that SSM is part of a larger trend rather than sui generis.) It’s precisely that sort of question -how are children best raised- that I’d like to see at the centre of the debate. (So even if we disagree at the moment about the effect of the downplaying of marriage, that’s the area we should be looking at.)

                      On your other points, the question (I suggest) should be: what (positive) legal structure best facilitates human flourishing -and, more specifically, the effective rearing of the next generation? The answer to that question was presumed by previous generations to be marriage. We now seem to be abandoning marriage without any sense of how that’s going to affect this key area of human life. It certainly hasn’t been at the heart of the consultation in Scotland -and it really should be.

                    • Saying ”marriage can not involve the raising of children and still be valid” doesn’t necessarily imply that, if children are added to the picture, that marriage is not the best environment to raise them in. Heterosexuals with no interest in having children already reap the benefits of marriage, and those married couples who do raise children are hardly necessarily suffering as a result.

                    • @cerebusboy:disqus
                      1) Granted, but we’re not talking about necessity here but contingent probabilities. If you have an institution the purpose of which has been obscured or even denied, it’s not necessarily the case that it won’t still work. But it seems highly unlikely that it will work as well as before.

                      2) As we’ve agreed, the introduction of SSM is part of a trend, and part of that trend would be the acceptance of marriages with the intention not to be open to children (invalid according to Catholic Canon Law). However, I’d argue it’s a bad trend, and one that, in any case, would be considerably worsened by the introduction of marriages which are, quite apart from intentions, biologically unable to be fertile and which have been introduced with the explicit acknowledgment of that inability.

                      [Again, trying to keep the focus on Myth 2, all this emphasizes the inadequacy of any account that refers simply to historical fact, without some reference to the procreative function of marriage: in essence, some societies historically have done worse than others at recognizing this function. That this is the case does not mean that we should aim to be one of those poorly performing societies.]

                    • 1) Even if it was true that SSM would lead to heterosexual marriage and the raising of children not functioning as well as they do currently – and I have not conceded this – that would not necessarily mean that the ‘reduced’ level of functioning was necessarily unacceptable. There have been “dead beat dads” and single mums for decades. You could make the commonsensical argument that, if divorce was illegal, or at least far more difficult to obtain than it is currently, that there would be less such non-ideal arrangements. That would not alter the fact that, in a free society, people should not necessarily be forced to be permanently wedded to particular individuals. After all, the true Roman Catholic who takes the CCC seriously will believe that pornography should be illegal. Given the longstanding, necessarily heterosexual problems of deadbeat dads and single moms, gay people could rightly question why their desired unions are being viewed as a child-imperilling alteration of the nature of marriage.

                      2) Theological arguments on why particular arrangements may be less than ideal are, or at least will be interpreted to be, of limited value in a secular democracy. Remember that the notion that acceptance of homosexuality will lead to a devaluation of family has been argued by the right for decades, but I’d imagine that Cardinal Keith O’Brian would not, now, call for the recriminalisation of homosexuality. There’s a world of difference between ”change the legal understanding of marriage” and “destroy marriage”.

                    • ‘marriage-as-finding-one’s-soulmate…has demonstrably not led to a wide scale abandoning of the importance of correctly raising children’

                      However, what it has led to is the ease of seeking divorce when someone discovers that their spouse is not the soulmate for life that they had hoped for. I’m not suggesting that this is a problem of anyone’s sexual orientation. What I am saying is that this is not a reliable basis for the life-long commitment of marriage.
                      The intent of marriage involves something greater than the belief in the discovery of one’s soulmate, it is predicated upon a love that solemnly consents to surrender irreversibly to join another in an act that is universally understood to hold the potential for a new life. It is the importance of the act to human survival that, once undertaken after mutual exchange of vows, imparts gravitas to the marriage. This is understood by all human civilisations.

                      You may say the vows, but the law understands them to be ratified by a specific act that is understood universally to representing the capacity to create a new human life together irreversibly, and over which both spouse hold equal rights. It invest marriage with not only a joy, but also with a sense of solemn duty towards each other and the marriage. It means that the law can presume that all future personal possessions are common to both spouses who are so joined.

                      The surrender of all to the spouse is predicated upon this act, not any feeling that you can attribute to an intense emotional phase, or some alternative form of copulation that represents no potential for an new irreversible gift of life. Same-sex marriage advocates seek to predicate life-long commitment of matrimony upon consent to join in an intimacy which lacks the same gravitas as heterosexual copulation in human experience. They devalue the importance of sexual union to marriage.

                    • I would think that ‘gravitas’ is very far down the list of words most people would use for sex, or even their primary romantic relationship. The awe and gravitas around sex has been something that the pill (hardly invented yesterday) and the like have surely changed (compare and contrast with e.g. the Middle Ages, where death in childbirth was not uncommon). Again, I am not disagreeing with your historical analysis; my point is that moves for SSM are similar to other attempts to change laws to reflect the facts on the ground, not a de facto alteration of the fundamental nature of marriage. People with no interest in children get married all the time. They still get the same benefits (tax etc) from the state.

                      Liminence (fleeting passions associated with romantic love) may seem to the theologian to be a poor basis for marriage, but they happen all the time. As do marriages involving those whose “clock is ticking” “not getting any younger” etc. The law presumes that possessions are shared due to the “what’s mine is yours” style commonly-understood vows of marriage. I would think most modern couples, of any sexuality, would indeed regard the discourse of “consummation”, as well as being problematically phallocentric, as one of the many elements historically associated with marriage (c.f. the fuss over The Duchess of Cambridge potentially swearing to ‘obey’ her husband; the law does not only reward and recognise marriages that are founded on Ephesians) that we have indeed evolved away from.

                      Most sex acts in heterosexual marriage are not recreational. Is it acceptable to merely symbolise being open to new life whilst actively stopping (via birth control) the possibility of new life? Medical science has reduced the all-acts-involve-life-and-risk-of-death ‘gravitas’ of sex – for homo and hetero alike.

                      We are at no risk of dying out, meaning that procreation-centric models of marriage, be they of 100, 500 or a 1000 years pedigree, are not necessarily the only valid kind for today’s society.

                    • ‘Medical science has reduced the all-acts-involve-life-and-risk-of-death ‘gravitas’ of sex – for homo and hetero alike.’

                      I think this is a bit of an exaggeration. Heterosexuals like to think that it has, but the abortion rate shows that it hasn’t.

                    • One of the pro-choice arguments (not the most cited by any means of course) is that we don’t want to go back to the days when women couldn’t control their bodies and unwanted pregnancy could lead to backstreet abortion and the potential death of the mother. And most pro-choice individuals would surely refer to the ‘foetus’ or ‘clump’ of cells rather than the pre-birth ”baby”, again suggesting an attitude diminished from a previous, life-or-death sense of gravitas.

                    • I’m not quite following what you’re saying. Are you saying that because married couples can abort their babies (or ‘feotus’ or ‘clump’ of cells, or whatever) that sex within marriage now no longer has life or death implications within our society? Not freaking out this time. Just want to be really clear that this is actually what you are saying.

                    • I was contrasting sex in ye olden dayes, when death in childbirth was not uncommon, to the contemporary, post-pill realities. Even if you do regard abortion as murder, surely you’d concede that heterosexual sex tends not to have life-or-death implications (in the West, I’m not denying HIV etc problems elsewhere) for the actual sexual partners themselves?

                    • Ryan, I did not actually use the word murder. However, whatever the moral status of the feotus, studies show that unplanned pregnancy (if not abortion itself) causes serious psychological stress for many women. Yes, it’s true that we’re much less likely to die in dramatic Lady Sibyl, Downton Abbey style (though it’s not unknown), but things aren’t ticking along quite as nicely as we’d like to think family planning wise. This is something our society seems continually to want to sweep under the carpet.

                    • The fact that society does such sweeping-under-the-carpet is indicative (perhaps, to the Christian, regrettable) of a (relative) lack of a life-and-death awe of sex and its consequences. I’d imagine that many a conservative would say that the hesitancy in applying terms like ‘murder’ to abortion (or perhaps even a woman taking a morning after pill?) it in itself indicative of a regrettable capitulation to the medicalised, bloodless language of the age.

                    • I’m not going to argue with any of that. The question is, is it the job of the law to simply ‘catch up’ with the way society behaves, or does law have any role in attempting to shape the behaviour of society? And should Christians have any say in this process, or should they simply shut up and say ‘oh well, this is what society wants, so what does it matter what we think’?

                      (I was objecting to you putting words into my mouth, and attempting to avoid getting side-tracked into a discussion of whether or not abortion is murder.)

                    • First, ‘gravitas’ applies to that which sexual union imparts to the marriage. That’s what I said and by that, I mean, weight, seriousness, and dignity. The advent of the modern contraceptive methods hasn’t changed the dignity accorded by exclusive sexual union with one’s partner in marriage. Those who trivialise sexual union in marriage on account of birth control find out that the law views that union a lot more seriously than popular culture does.

                      The fact that some or even many enter marriage for a myriad of lesser reasons doesn’t change what the law considers the intent to marry to involve and the act upon which it predicates marital responsibility. Try telling a judge that you want him or her to take into account that it was an impulsive ‘body-clock’ mid-life crisis that triggered your desire for marriage and should be the basis for treating your intentions with less gravity than others who took their vows to transcend the vagaries of emotionalism.

                      I’m not sure why an act that involves the organs of both genders should be considered phallocentric, or vaginocentric. If anything a male-male act would be phallocentric. Sexual union does not have to intend, or result in procreation, it does have to represent the capacity to create a new human life together irreversibly. Thereby, it evidences a level of commitment that the law has historically understood. Without this the intentions are open to uncertainty and annulment.

                      Other acts do not carry this meaning and you can’t over-rule it with appeals to popular opinion.

                    • It’s phallocentric because the male achieving orgasm and ejaculating in the vagina (which is what consummation means) is deamed to be an act that ‘makes’ the marriage (and presumably imparts all the sub-DH Lawrence ‘dignity’ etc), the female orgasm presumably being of secondary importance. Again, I’m not arguing with what you claim marriage has historically been about. WHY does marriage need the symbolism “of the capacity to create a new human life irreversibly”. If more people getting married care about union with one’s soulmate than they do symbolism (and, birth control being the rule rather than exception, that’s all it is) then why should marriage law not reflect that? And you’re setting up some false dichotomies. People take marital vows of devotion because of romantic love; it is not necessarily or even usually a mere fleeting ’emotion’ supposedly indicative of a trivialisation.

                      And of course marital law very much has indeed changed via “appeals to popular emotions” – c.f. the (very late in the day) criminalisation of rape within marriage.

                      Here’s a hypothetical: if we surveyed 100 (or 1000) newlyweds and asked them what marriage was about, how many do you think would value the historical symbolism and ‘meaning’ of a penis ejaculating in a vagina, and how many would cite romantic love? I suspect the answers would indicate that perhaps marriage law does indeed need to shed some of its antiquities and catch up with the facts on the ground, with obvious implication for same sex couples.

                      I reiterate: I am not questioning the accuracy of your historical analysis. I am questioning why this historical model can not be changed. I do not think ”’it must stay this way because it’s always been this way”, in and of itself, is much of an argument.

                    • 1. ‘If more people getting married care about union with one’s soulmate than they do symbolism (and, birth control being the rule rather than exception, that’s all it is) then why should marriage law not reflect that?’ Because, as stated before, it is not a basis for predicating permanence.

                      2. It is you who defined liminence as ‘the fleeting passions associated with romantic love’ and as a basis for marriage. I’ve simply stated that fleeting passions cannot be a basis for predicating the permanence of marriage.
                      3. However marriage law has changed, there are consistent elements upon which its permanence and meaning to society are predicated.
                      4. The detailed definitions of consummation are a part of case law. People don’t cite case law in respect of romantic love. In contrast, do people today view romantic love as a commitment to life-long fidelity? The divorce courts are full of romantics who just couldn’t stay the course.
                      5. The historical model of life-long commitment to one person is predicated on the most important sexual act involved in human survival. There is a match between what is surrendered and what is expected. You want to predicate it upon something else. I’ve not said, ‘it must stay this way because it’s always been this way’. I’ve said, ‘it must stay this way because nothing greater can be matched to life-long marital kinship and commitment’.

                    • 1. Symbolism is not a basis for predicating permanance. Most people, I’d imagine, do not share your awe at phallocentric blarney.

                      2. People can and do marry for romantic love; the state does not prevent them doing so. Vows – being a public agreement with witnesses etc – are more useful (today) than the symbolism of heterosexual acts. And people can and do take vows on the basis of romantic love. If most sex acts are recreational, not procreation, and this is a deliberately choice, then your beloved symbolism loses much of its contemporary resonance anyway.

                      3. That does not mean that said elements necessarily can’t change.

                      4. Right. And I doubt that said people would have stuck with the marriages if they’d made antiquated symbolism the ‘basis’ for their marriage instead. That people can get divorced, in a free society, is indicative of the way that marriage’s evolution has mostly been a good thing.

                      5. People commit because of vows and what they entail i.e. the active decision to commit.. The human race is at no risk of dying out, making awe and privileging of symbolic acts, at the very least, not the preeminent good it may have been a few hundred years or so.

                    • 1. Actions that symbolise virtues are an everyday part of commitment. The predication is that the law presumes that those who consent to marry and embark upon sexual union are full cognizant of the seriousness of the commitment. Those who vow sexual fidelity and are then denied sexual union are open to seek annulment, rather than divorce. As I said, consummation is not phallo-centric, whereas homosexual copulation is.
                      2. The state does not prevent people from marrying for romantic love. The purpose of the vows is to ascertain consent. Consent to what?, I ask. Why is there a demand for sexual fidelity, if sexual union of the partners is not understood to be an expectation of both spouses? So what if most sex acts are recreational, the law is not concerned with the relative frequency of intercourse, only that intercourse is an accepted expectation of those who consent to marry.
                      3. Change the elements and you have to find an alternative basis that matches the permanence of marriage. You’ve offered nothing that remotely accomplishes this.
                      4. Exclusive sexual union that transcends the vagaries of emotion is not antiquated symbolism, but undergirds marriages that do stay the course. Those who don’t respect the fact that they are sharing a lot more than just romance won’t appreciate its significance. You don’t build marriage laws on the lowest common denominator. ‘That people can get divorced, in a free society, is indicative of the way that marriage’s evolution has mostly been a good thing.’ They’ve been able to get divorced since time immemorial. The causes of divorce have changed. Next thing, you’ll be claiming that an increase in divorces is indicative of further evolution. And that’s mostly a good thing?
                      5. However you try to diminish its importance, heterosexual union is still the sexual act most fundamental to human survival. You don’t have to privilege heterosexual union when it holds that place in human experience. Those who appreciate its importance will stay the course. That doesn’t mean that those who recognise this, copulate through fear of extinction. You’ve made several references to the fear of extinction and I have made no reference to this in my thesis. That straw man is of your own making.
                      If people committed just because they said so, there would be not nearly as many divorces. The law is not just about ‘blue skies thinking’. Yes, there is an ‘active decision to commit’, though: it’s to match the permanence of vows with an act of mutual love this holds the same permanent significance in human experience. Heterosexual union consummates the vows of sexual fidelity in marriage.

                    • 1. As I say, repeatedly, I am not disputing the accuracy of your historical analysis. The law values symbols. I’m asking whether it necessarily should. You yourself say “actions that symbolise virtues are an everyday part of commitment”. The most important part? A necessary part, in our secular age? The virtues and the commitment itself are the important thing. Presumably you regard homosexual unions as more phallocentric than heterosexual ones because the former has twice the amount of phalluses. That’s not what phallocentric means. It means, in my original context, that in a heterosexual union the phallus/male orgasm is privileged (being the act that supposedly makes the union), the female orgasm/sexual experience being of presumably secondary experience. Although conceding that ejaculation, apparently, isn’t part of the definition of consummation (plainly, the last time I take one of Peter’s claims at face value without checking ;-)) a high focus on penetration itself can be phallocentric. Many a feminist could tell you this, and they’re not all as ‘extreme’ as e.g. Dworkin. Perhaps Fiddle Sticks can chip in on this point.

                      2. Sexual exclusivity, in and of itself, and in the context of vows, is indicative of the socially useful commitment. Again, actual actions (considered in themselves) and vows – being rational free will choices – are more useful than symbolism.

                      3. You have offered no evidence for permanence. You have been expounding on the meaning of sex acts. That presupposes that ‘meaning’ is the best way to appraise sex acts and kinds of union; your language has been very much consistent with the CCC on marriage, with the birth-control admitting twists necessary in order to stack the deck against gay unions. Theological ‘meanings’ are ideological constructs imposed on human bodies and relationships, not neutral, scientific understandings of them. Aside from which one can query whether permanence, although of course important, is the be all and end all when it comes to appraising the moral standing of relationships. Are there more divorces now than there was before feminism? Of course. Does that make contemporary, evolved marriages and marital law inferior to the women-as-property bad old days? Of course not.

                      4. Human beings, recognising the primacy of an attraction, the likelihood of a relationship’s success, and making a calculated, free will choice to consent to a relationship is not the lowest common denominator. Rational decisions and declarations of intentions compare favourably to slackjawed awe in the face of antiquated symbolism. Note, birth control being acceptable, that your beloved penis-in-vagina-as-symbol-of-the-continuation-of-the-human race doesn’t even really work well as a symbol (the act of a condom-clad penis in a vagina – considered in and of itself – is contrary to the purported open-to-life meaning you are giving it; on this point me and the CCC are in complete agreement ;-))
                      Are the increases of divorces a good thing? Compared to the women-as-property discourse that surrounded marriage for most of its (supposedly golden) history then: yes.

                      5. It is not a straw man. It is part of me accepting (as I say again) the validity of your historical analysis; I am questioning whether such models are necessary or useful today. Tribal morality that condemns all non-procreative acts did indeed make a great deal of practical sense at certain points in human history. It does not now. Heterosexual procreative sex is ‘naturally’ privileged as necessary to the survival of the human race. That does not necessarily mean that heterosexual sex per se or heterosexual relationships per se ought to be privleged by the state (those hetero couples with no interest in children still reap benefits through marriage)

                      A declaration of consent is not blue skies thinking. Vows, given publicly, in front of witnesses, are ,usefully,very much the stuff of contemporary law; symbolic meanings couples supposedly give to private sex acts are not.

                    • 1. ‘The virtues and the commitment itself are the important thing.’. Indeed. Yet, sexual union is not a purely symbolic activity like a ritual. Exclusive sexual union in marriage is invested with a sense of permanent kinship and, in its expression, involves virtues and commitment. However, as an institution that operates within a legal framework, it must maintain a common framework of expectations. You attempt to do this by removing the sort of union that accords with permanent kinship.
                      In the case in which consummation was defined, a wife petitioned for annulment for non-consummation, she was still a virgin, although she had a number of miscarriages while they lived together. The focus on penetration was the wife’s dissatisfaction, not the man’s pleasure.
                      2. ‘actions (considered in themselves) and vows – being rational free will choices – are more useful than symbolism’ The actions aren’t separable from their significance beyond each other to the society. Trying to separate an action from its significance, especially as it relates to an institution, is impossible.
                      3. ‘Theological ‘meanings’ are ideological constructs imposed on human bodies and relationships, not neutral, scientific understandings of them.’ I’ve mentioned nothing of theology. It’s far too reductive to expect scientific understandings to define ‘meaning’ when the sort of union capable of perpetuating society has held greater significance than those that don’t. I’ve merely maintained its superior significance is worthy of the ideals expressed in the vows of marriage.
                      4. I haven’t claimed that heterosexual union is open to life. I have identified the enduring significance of heterosexual union in kinship systems and that marriage is part of the kinship system. Alterative acts cannot hold the same significance to an institution so closely linked to kinship. You want to introduce a scentific basis of meaning that fails to understand that institutions cannot be imposed by fiat.
                      You’ve set up a false dichotomy by juxtaposing the increase in divorce and the former chattel status of women. Changes in the divorce rate have no correlation to the status of women. A concomitant is not causal.
                      5. ‘Tribal morality that condemns all non-procreative acts did indeed make a great deal of practical sense at certain points in human history.’ Really? So, you would justify the condemnation of homosexual copulation in societies that have been decimated by disease? Somehow, I don’t think so.
                      I haven’t suggested dispensing with vows. Significance and symbolism are different things, The law identifies consummation as having enduring significance to human kinship. In the absence of an alternative that compares, you dispense with significance entirely. Case law shows that words without actions are like tall ships without sails.

                    • BTW, the definition of consummation is not phallocentric.
                      According to case law, Dr Lushington in D v A (1845) 163 ER 1039: consummation requires “ordinary and complete” rather than “partial and imperfect” sexual intercourse, including erection and penetration but not necessarily leading to orgasm. It certainly need not result in conception, and the fact that the husband may be sterile or the woman barren is legally irrelevant.

                    • 1845? When normal women were being diagnosed with ‘hysteria’? I’d imagine such discourse was indeed phallocentric. What is ”ordinary and complete” in this context? Penetration? Doesn’t ‘complete’ suggest that the act ought to lead to male orgasm? Surely, irrespective of how much of the penis enters the partner, he’s either penetrating or not, rather that operating on a scale of completion (as it were)

                    • I would say that 1845 understandings of ‘consummation’ are indeed phallocentric. NB I went with the “penis ejaculating in the vagina” definition of consummation because it’s one you yourself have used in this blog.

                    • My apologies. I’ll obviously be more cautious about accepting your claims in future ;-)

                      Tangentially, did you not regard ejaculation as of symbolic importance in your theology of sex series? Would you agree that there are many areas where the Christian understanding of marriage and English case law may not be in perfect agreement, making it perfectly acceptable to critique and call for the revision of the latter?

                    • It’s not ejaculation per se which is important but rather conception. And granted, conception rarely happens without male ejaculation, but the act itself of the insertion of penis into vagina is what the law is interested in (which backs up the idea that whilst the ideal is for marriages to be procreative, they do not need to be to be valid).

                      I’m cautious of answering your last question because I suspect a trap to try and make this a religious issue!

          • ‘Certainly, in the Catholic understanding, any marriage that was not consummated or that was entered into with the intention not to have children could be annulled’

            My understanding is that unconsummated marriages can still be annulled under British law. It’s one of the laws their considering getting rid of to make way for same-sex marriage.

  3. I can’t help but approach this as a Christian.
    And I see both 1 & 2 presenting much the same arguments as are made against women in Holy Orders.
    For me marriage is a vocation. Having a family is also a vocation and not for everyone – even for those who are able to make their own babies.

    I agree with the Dean of St Alban’s who on Taro Naw this week said that it will only be ten years before the Church catches up, recognises and blesses our vocation.

    • That’s the best argument anyone’s come up with for same-sex marriage. Problem is, though, surely lots of people care for children who’ve lost their biological parents, whether as a vocation, or because of circumstances? Isn’t that a bit different from heteroseuxal relationships with their complications of unplanned pregnancy and kinship? I’m just not seeing how this is anything other than turning marriage into a civil partnership, which we have already, so who gains anything?

  4. It’s not clear what argument is being made. Marriage has meant different things in different cultures, so the myth isn’t really a myth. Ignoring cultures in which the law allows polygamy, the response then talks about “rewriting” heritage, which seems a mixed metaphor at best. This slogan of “redefining marriage” is unlikely be successful, since people connect with the emotional resonance of seeing friends and family making a public commitment to each other rather the technicalities of rewriting laws, and who really thinks their marriage is changed if gays are allowed to marry? The argument from “novelty” is weak, given that Western societies have only recently acknowledged conspicuous same-sex relationships (a precondition surely for considering SSM).

    • ‘ since people connect with the emotional resonance of seeing friends and family making a public commitment to each other rather the technicalities of rewriting laws’
      Even if, as you say, ‘marriage has meant different things in different cultures’, but how is that a basis for re-writing UK law? If the focus is only about celebrating any personal commitment (i.e. weddings) and if maintaining a uniform legal framework is secondary, why does the legal framework matter? Why not just make your personal commitment, read poetry and throw a party. Why marry? The technicalities actually do matter when courts try to decide what each spouse intended when they got married.
      Regardless of what a couple might imagine that they intend, there is an existing framework of long-held presumptions that undergird marriage. You would have to build a raft of legislation to replace those long-held presumptions about the intent of parties to marriage, some of which makes no sense in respect of same-sex marriage.

      • It’s not that the technicalities don’t matter (they clearly do), but whether the (real) difficulties in implementing SSM make a good argument for not implementing it. What might be technically a good argument might have little traction (“emotional resonance”). After all SSM has been implemented in other countries so why is it peculiarly difficult here people will say?

        • The onus is not on the existing institution to make a good argument for not extending it to include same-sex relationships. The onus is on same-sex relationships to prove equivalence to the purpose of existing institution within biological kinship.

          It’s clear from the c4m petition that the argument against same-sex marriage already has emotional resonance.

          • Actually, no – in the light of the existence of the equality legislation, it is up to those who wish to maintain a separate status on the basis of sexual orientation to do so

            • ‘it is up to those who wish to maintain a separate status on the basis of sexual orientation to do so’
              That would indeed be the case, if it was demonstrated:
              1. The status of marriage involved the mere delivery of a service, rather than changing a legal institution rooted in human history.
              2. That the level of same-sex marriage adoption among EU member states did not permit the ECtHR to extend a margin of appreciation to the UK.
              3. That the EU did not consider it permissible for member states, under the margin of appreciation, to provide an alternative to marriage that provided similar legal rights to same-sex couples.
              4. That the EU legislation supporting the right to marry was framed to include same-sex couples.
              5. That maintaining the emphasis of marriage as biological kinship was a particularly trivial reason for excluding same-sex couples from marriage.

              Apart from those factors, I completely agree with you about the onus.

  5. I think the wording of this point is a bit vague. Who is ‘everyone’, and are we talking about marriage in Britain, Europe, or the whole world?

    On the other hand, I find this the least convincing argument on the other side. It’s a bit like me saying to someone ‘What do you mean you’re not sure you’re ok with me fitting an extra wheel to your bicycle? Pooh, pooh! You were quite happy to paint it red last summer!’

    This argument reminds me of that immortal line in ‘Pride and Prejudice’, ‘So very much more rational, my dear Caroline, but it would not be near so much like a ball.’

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