This article was originally published by Ryan McMaken at The Mises Institute.
Both the US Senate and the House of Representatives are expected to pass new same-sex marriage legislation in the coming days. The legislation is expected to codify what is already de facto law in the US under the US Supreme Court’s ruling in Obgerfell v. Hodges.
The legislation further solidities federal law stating that states are required to recognize same-sex marriages that are legal in other U.S. member states. The legislation also ensures that same-sex spouses will continue to be eligible for federal benefits through programs like Medicare and Social Security. The legislation does not mandate that each state government establish its own provisions for same-sex unions, however.
In the year 2021, there’s not really anything remarkable about this in the minds of most people. To most modern thinking, marriage is just yet another thing that is to be regulated and modified according to the whims of a civil government’s lawmakers and judges. Even among those who think there ought not be any federal role in marriage legislation, very few dispute that the governments of the member states themselves—or foreign national governments, for that matter—can rightfully exercise immense legislative authority over the regulation of marriage. The only disagreement is often over how government officials ought to regulate marriage, and to what ends.
“Historically, the Government Was Very Uninvolved in Marriage.”
The only dissenters to this consensus appear to be some libertarians like Ron Paul. For example, in 2012, Paul told a rally audience “I’d like to see all governments out of the marriage question. I don’t think it’s a state decision. I think it’s a religious function.” These comments followed earlier comments from Paul contending that “Biblically and historically, the government was very uninvolved in marriage.”
Paul is right in saying that marriage historically had (often) been a matter for religious authorities instead of agents of the civil governments. Yet, given the rise of the modern sovereign state, which is currently the ultimate legal authority on virtually all matters, it has become difficult to even imagine the particulars of the historical reality to which Paul refers.
Nonetheless, state regulation of marriage—and the ensuing secularization of marriage that followed—is a historical development that was part of the larger trend toward the expansion and consolidation of state power that began in the late Middle Ages. It was during this period that states gradually came to exercise monopolistic authority over all of society’s institutions including the towns, the nobility, and even the monarchies themselves. Also brought under the state’s power were the churches and state control of marriage was an important component of this. State control of marriage, that we now consider to be so normal, was simply one aspect of the state building that set the stage for our modern era of nearly untrammeled state power.
Privatized Marriage in the Middle Ages
Because marriages can have such far-reaching effects even for those not directly involved, government officials as well as family members of the betrothed have long sought ways to exercise power over who gets married to whom. The desire to exercise this sort of control can be seen in the negative reaction to changes in the Catholic Church confirmed by Pope Alexander III. In the late twelfth century, Pope Alexander clarified that marriages did not require the approval of government officials—or even church officials—to be valid and legally binding. Rather, a valid marriage required only the consent of both the husband and wife. No other parties possessed a veto.
This necessarily reduced the power of both parents and local government officials in regulating marriage. For example, even in a case in which certain parents were insisting that their son marry a pre-selected woman of the parents’ liking, the son could do an end run around the parents by simply marrying someone else without their permission. For those who felt outside pressure to be especially overwhelming, a couple seeking marriage could pursue a “clandestine marriage” potentially conducted entirely without the parents’ knowledge and without outside sanctioning or church solemnization at all. These secret unions might incur a temporary ecclesiastical sanction, but this did not invalidate the marriage, and there was nothing the parents or government officials could do to invalidate the union. (Notably, the consent model also limited the church‘s ability to veto proposed unions or otherwise directly control the formation of marriages.)
This “consent model” of marriage was not exactly acclaimed by Christendom’s parents and government officials. After all, Alexander’s efforts to make marriage requirements more uniform and accessible interfered with officials and family organizations that had long exercised considerable control over marriage at the local level. Customs varied considerably from place to place, but now the Pope was telling everyone that couples could marry without the consent of others so long as they conformed to a short list of prohibitions designed to avoid incest, polygamy, and other conditions believed to be prohibited by divine law. According to Andrew Finch, in Pope Alexander’s view:
Marriages of love were to be promoted at the expense of those of economic convenience or feudal necessity and the church was made to stand as guardian for individual freedom in this area. This was, however, a vision very much at odds with existing notions of parental and feudal authority.1
What resulted was an essentially private system in which marriages could be contracted among individuals with a presumption of validity. Outside adjudication only became necessary when there were disputes over whether or not a marriage was valid or if one of the parties was accused of somehow violating the agreement. This arbitration was done through private, international ecclesiastical courts staffed by church personnel and through which a plaintiff or defendant could appeal to a transnational Pope. This system of law was outside the control of the civil government’s courts which were staffed by a temporal king’s appointees and allies.
This private adjudication of privately contracted marriages became common as access to ecclesiastical courts became more widespread in the thirteenth century. By the end of the century, they were present in nearly every diocese. Records of lawsuits over the validity and exercise of marriage contracts piled up in many church courts over the following centuries. Finch concludes these records “reveal an institution that was much more a center for dispute resolution than family-inspired repression,” and the effect was to further diminish interference from the civil law courts in matters of marriage formation.2
Of course, the king’s law courts were still very much involved in what Saskia Lettmaier calls the “mundane legal consequences of marriage, in particular the property and inheritance rights arising from it.”3 Such matters, after all, were essentially about property and contractual agreements determining ownership. However, “all matters that essentially concerned the existence of the marriage bond, such as formation, impediments, and dissolution were, legislatively and jurisdictionally, within the exclusive competence of the Catholic Church.” [emphasis added]4
A Separation of Church Law and State Law
This placed oversight of marriage formation and dissolution within the purview of a rival institution separate from temporal princes and officials, and as such provided an additional check on burgeoning state power as the Middle Ages came to a close. This began to change again during the early modern period, however, as monarchs increasingly asserted their own power over the Church. Moreover, this process was accelerated by the Protestant Reformation.
As early as the fifteenth century, western Europe’s monarchs had fought hard to increase taxation on the church and these regimes found they could further limit church influence in their kingdom by prohibiting the appointment of foreigners to ecclesiastical positions. The result was that such offices ended up being filled by personnel with greater personal affinity for local princes instead of to an independent church. During this period, the making and execution of wills was handed over from church officials to civil governments. Moreover, penalties handed down by ecclesiastical courts increasingly required the cooperation of civil officials to be carried out. Some institutions that were ostensibly thought to be church operations became wholly controlled by the monarch, and as Ven Creveld notes, “indeed it has been said that no institution was so completely under royal control as the Spanish Inquisition.”5
With the Protestant Reformation in the sixteenth century came rapid moves toward state control of marriage. While much of the fight over church prerogatives had been mere matters of power politics, the Protestant reformers provided supercharged ideological and theological fuel to claims that marriage must be removed from the control of the Pope.
Replacing the Church with the State
In contrast to Alexander’s individualist notions behind the consent doctrine, “Luther called for [marriage] formation to be a public act, requiring the consent of father, mother, or those standing in loco parentis.”6 This was met with approval in Germany where “the requirement of parental consent was almost uniformly accepted in [the] sixteenth century.”7 But of course, the Reformers’ more philosophical objections against the Catholic hierarchy met with success in other areas as well, and ultimately “the Reformation unequivocally made the temporal ruler, rather than the pope, the ultimate locus of jurisdictional and legislative authority over marriage.”8
This, however, created a need for state-controlled legal institutions to replace the now-abandoned church courts under regimes that embraced the Reformation. Lettmaier continues: “Luther’s … wholesale rejection of the canon law … led to a legal vacuum, which made the creation of a new court system and a new law of marriage a matter of urgency.”9 Eventually, state rulers settled on “the establishment of consistories; that is, special courts for matrimonial and other ecclesiastical causes that were part of the state judicial system.”10
A similar move toward replacing church courts with state courts occurred in England, but without radical changes in theology. The English reformation, of course, was marked less by doctrinal change than by political efforts to simply replace the Pope with the English king as the head of the Church. Thus, the ideology of marriage changed little, except to ensure that the monarch retained the freedom to act as he wished. The end result was akin to the German situation in that formerly ecclesiastical institutions were now fundamentally under the control of state institutions.
The Secularization of Marriage
In the twenty-first century, marriage is now firmly under the control of state institutions in nearly all jurisdictions. This in itself, however, is insufficient to secularize marriage in the sense that it becomes defined and modified according to secular concerns rather than religious ones. It is theoretically possible, of course, to have state control of marriage while also regulating marriage in line with the sensibilities of a specific religion.
This appears to have been the case in the sixteenth and seventeenth centuries. In neither England nor the German Protestant states did the assertion of state control over marriage immediately lead to the secularization of marriage in which marriage ceased to be seen as a religious institution. Both Protestants and Catholics viewed themselves as the protectors of marriage as religious and spiritual institutions. In both cases, ideals of marriage remained closely tied to what both sides viewed as holy scripture—albeit with widely differing interpretations. This remained the case even in absolutist and regalist Catholic countries which by the seventeenth century had begun to insist the monarch must have the final say even over religious matters. Thus, the changes that did occur to church law were primarily institutional in nature, changing the nature of authority without changing the religious foundations of marriage.
Secularization did finally occur in the seventeenth and eighteenth centuries with the advent of the so-called Enlightenment. Government elites—especially on the German-speaking Continent—began to abandon Christian ideals altogether and insisted that law be based only on “reason.” Lettmaier concludes “[t]his basically eliminated all supra-positive guidelines for (and binding limits on) human marriage legislation.”11 This gave state rulers even more freedom to fashion marriage in a way most convenient to them. Secularization of marriage laws finally became widespread in the nineteenth century and marriage policy from then on became whatever policy was viewed as politically prudent, utilitarian, or expedient.
Today, the nature of marriage has been so divorced from its private religious aspects as to be thoroughly malleable in accordance with purely secular legal, political, and legislative considerations. The catalyst for all of this, however, remains with the revolutionary institutional changes that changed marriage from a matter of private agreements within a religious institution into a “public” matter defined and regulated by an increasingly powerful state.