Was it ever illegal for 2 people of different religions (e.g. Catholic & Anglican) to marry in the UK? I'm refering only to "civil marriage". I'm sure, even now, that the Catholic church may not view a marriage of an Anglican and a Catholic as "valid", but for the purposes of civl law, they could be legally married. Was there ever a time, in the UK, when it was not a legal marriage if the 2 people were of different Christian faiths?
If so, when did that change? When was that sort of marriage made legal?
Yes, indeed! During the Penal Law period of the 18th Century, there were laws in Northern Ireland designed to "protect Protestants against the pollution of Popery" (Akenson, 111)
You might find this history of marriage in the west interesting. Marriage started as a pact between families, and was a purely secular matter following the Roman patriarchal tradition, which usually did not consider the wishes of the bride. The rise of the Christian church in the medieval Europe brought with it the idea that marriage should be between willing partners. In the 16th Century, Martin Luther pushed marriage out of the church again. The Restoration brought it back into the church… because of this ping-ponging and existing religious diversity, I think it would have been unusual to have interfaith laws elsewhere in the UK.
From 1290 to roughly 1655 it was probably illegal to marry someone who was Jewish. But that's only because it was illegal to be Jewish. That is a special case answer to the question, mostly because I was looking for an example that didn't involve Roman Catholics.
Well, there is the Act of Settlement, which takes anyone who is Catholic, or married to one, out of the line of succession. It doesn't prohibit it outright though.
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Same-sex marriage, the practice of marriage between two men or between two women. Although same-sex marriage has been regulated through law, religion, and custom in most countries of the world, the legal and social responses have ranged from celebration on the one hand to criminalization on the other.
Some scholars, most notably the Yale professor and historian John Boswell (1947–94), have argued that same-sex unions were recognized by the Roman Catholic Church in medieval Europe, although others have disputed this claim. Scholars and the general public became increasingly interested in the issue during the late 20th century, a period when attitudes toward homosexuality and laws regulating homosexual behaviour were liberalized, particularly in western Europe and the United States.
The issue of same-sex marriage frequently sparked emotional and political clashes between supporters and opponents. By the early 21st century, several jurisdictions, both at the national and subnational levels, had legalized same-sex marriage in other jurisdictions, constitutional measures were adopted to prevent same-sex marriages from being sanctioned, or laws were enacted that refused to recognize such marriages performed elsewhere. That the same act was evaluated so differently by various groups indicates its importance as a social issue in the early 21st century it also demonstrates the extent to which cultural diversity persisted both within and among countries. For tables on same-sex marriage around the world, in the United States, and in Australia, see below.
Was it ever illegal for two people of different religions to marry in the UK? - History
In England the list of forbidden marriages was drawn up by the Church of England in 1560 and remained unchanged until the 20 th century. I have reproduced the original list below. Because it is presented in a precise but rather complicated way I have transformed the list into a more easily understood form here .
A TABLE OF KINDRED AND AFFINITY 
WHEREIN WHOSOEVER ARE RELATED ARE FORBIDDEN IN SCRIPTURE AND OUR LAWS TO MARRY TOGETHER
A Woman may not marry her
6 Father's Sister's Husband
7 Mother's Sister's Husband
8 Husband's Father's Brother
9 Husband's Mother's Brother
21 Son's Daughter's Husband
22 Daughter's Daughter's Husband
24 Wife's Daughter's Daughter
24 Husband's Daughter's Son
27 Brother's Daughter's Husband
28 Sister's Daughter's Husband
29 Wife's Brother's Daughter
30 Wife's Sister's Daughter
Wherein whosoever are related are forbidden in scripture and our laws to marry together
A Woman may not marry her
No cousins are mentioned, which is surprising since double first cousins (first degree and normal) are equivalent in their relationships to full and half sibs respectively. Also, half sibs are not mentioned, but I think the inclusion of half sibs is implicit in the general terms 'brother' or 'sister'.In the same vein half uncles, half aunts, half nephews and half nieces are implicitly included with their full counterparts.This is made clearer in later lists where half sibs are referred to specifically.
The full set of in-laws and step relatives are included to match the equivalent blood relatives of the same name except the following:
It seems strange excluding stepbrothers and stepsisters while including stepsons and stepdaughters. The first changes were made in 1907:
The 1907 Marriage Act removed no. 17 from the forbidden list (Wife's sister and Husband's brother), provided the first spouse in each case was deceased. Further changes followed in 1921, 1931 and 1949:
The 1921 Marriage Act removed no. 18 (Brother's wife and Sister's husband) provided brother or sister in each case was deceased.
The 1931 Marriage Act removed 6, 7, 8 and 9 (Aunt-in-law and Uncle-in-law) and 27, 28, 29 and 30 (Niece-in-law and Nephew-in-law), provided the relevant Uncle, Aunt, Niece, and Nephew were dead.
The 1949 Marriage Act confirmed the previous 3 acts and specifically included 'half blood' relatives.
A TABLE OF KINDRED AND AFFINITY 
WHEREIN WHOSOEVER ARE RELATED ARE FORBIDDEN BY THE CHURCH OF ENGLAND TO MARRY TOGETHER
A woman may not marry her:
14 Father's Mother's Husband
15 Mother's Mother's Husband
16 Husband's Father's Father
17 Husband's Mother's father
19 Wife's Daughter's Daughter
19 Husband's Daughter's Son
20 Son's Daughter's Husband
20 Daughter's Daughter's Husband
A woman may not marry her:
22-23 Uncle and Half Uncle
24-25 Niece and Half Niece
24-25 Nephew and Half Nephew
To emphasise that the ten 'in-law' relatives, removed from the above list, could only marry the nominated person if all previous spouses were dead, a second list was included:
1. Deceased sister's husband
2. Deceased husband's brother
3. Deceased wife's brother's daughter
3. Deceased husband's brother's son
4. Deceased wife's sister's daughter
4. Deceased husband's sister's son
5. Brother's deceased son's wife
5. Brother's deceased daughter's husband
6. Sister's deceased son's wife
6. Sister's deceased daughter's husband
7. Father's deceased brother's wife
7. Father's deceased sister's husband
8. Mother's deceased brother's wife
8. Mother's deceased sister's husband
9. Deceased wife's father's sister
9. Deceased husband's father's brother
10. Deceased wife's mother's sister
10. Deceased husband's mother's brother
Since 1949 there have been several further Marriage Acts culminating in the 1986 Act which brought the regulations up to date.
The following blood relatives are still forbidden to marry under all circumstances:
A woman may not marry her:
In 1960 the restrictions on the in-law relatives mentioned in tables 26 and 27 were removed. This means they are now free to marry irrespective of whether the former spouse is dead. i.e. It allows divorcees in this category to remarry.
The following in-laws can also marry without any restrictions, i.e. regardless of whether or not their first spouses are still alive:
Former wife's father's mother
Former husband's father's father
Former wife's mother's mother
Former husband's mother's father
Son's son's former wife
Son's daughter's former husband
Daughter's son's former wife
Daughter's daughter's former husband
The remaining step relatives can now marry provided they are over 21. Also, the younger person must not have been treated as a child of the older person's family and never, under the age of 18, lived under the same roof as the older person.
Former wife's daughter
Former husband's son
Father's former wife
Mother's former husband
Father's father's former wife
Father's mother's former husband
Mother's father's former wife
Mother's mother's former husband
Former wife's son's daughter
Former husband's son's son
Former wife's daughter's daughter
Former husband's daughter's son
The remaining in-laws can now also marry provided they are both over 21 and any former spouses must be deceased.
Former wife's mother
Former husband's father
Son's former wife
Daughter's former husband
A new forbidden category has now been added covering adopted children:
A woman may not marry her:
Adoptive mother or former adoptive mother
Adoptive father or former adoptive father
Adopted daughter or former adopted daughter
Adopted son or former adopted son
Surprisingly marriage between unrelated adopted brothers and sisters (i.e. adopted by the same adoptive parents) is allowed.
The marriage laws for Scotland and Northern Ireland are similar to England and Wales except that Scotland also includes the following forbidden blood relationships:
A woman may not marry her:
Comments on the 1986 Regulations
My criticism is that there are still no sensible rules about marriage between 'blood' relatives. The only logical way would be to fix an obligate level of inbreeding beyond which it is not permissible to go. For example, if the maximum coefficient of relationship between partners is fixed at 1/8, this would limit the coefficient of inbreeding to 1/16 (6.25%). Marriages between single first cousins would then still be allowed but not between double first cousins. It would also allow unions between half uncle and half niece and between half aunt and half nephew. If this was introduced the list of forbidden marriages between'blood' relatives would then become:
Double First Cousins (first degree)
Uncle-niece and Aunt-nephew
Also any other unusual cousin or other relationships with an R value of 1/4 or above (see enhanced relationships.)
These figures could only be used as a guide since previous inbreeding (known or unknown), particularly in small closed populations could cause nominally low relationships such as first cousin (R = 1/8) to rise above 1/4. In these special situations it would be necessary to have a genetically qualified panel to assess the wisdom of certain marriages. The presence of any known inherited abnormalities in a family would also have to be taken into account.
Incest is defined by Martin (1990) as: ''Sexual intercourse between a man and his mother, daughter, sister, half sister or granddaughter, or between a woman over the age of 16 and her father, son, brother, half brother or grandfather. Even if both partners consent, incest is a criminal offence if the partners know of their relationship. It is punishable by up to 7 years imprisonment (or, with a girl under 13, by a maximum sentence of life imprisonment), but no prosecution can be brought without the consent of the Director of Public Prosecutions. The relationships listed above include illegitimate relationships. It is a statutory offence for a man to incite a girl to have incestuous intercourse with him, but being under 16, she would not be guilty of any crime if intercourse took place.''
Apart from religious constraints, the idea that incest laws should only encompass members of the close family stems from the desire to protect vulnerable children. From the biological point of view, however, all close inbreeding is harmful and undesirable, even when it involves relatives outside the nuclear family.
The above list excludes several relationships which are as close or even closer, in terms of the coefficient of relationship, than those within it. The following are some examples:
- Grandmother-grandson. This is a sexist exclusion, since although Grandfather-granddaughter incest is more likely to happen, when Grandmother-grandson incest does occur it is just as serious.
- Uncle-niece and Aunt-nephew sexual unions are excluded even though their coefficients of relationship are the same as between Half sibs and Grandfather-granddaughter (R = 1/4).
- Double first cousins of both types (first degree and normal), with R values equal to Full and Half sibs respectively, are also excluded. Likewise any of the other unusual cousin relationships described earlier, with coefficients of relationship of 1/4 or above. In view of the severity of the punishment for statutory incest I think these close cousin relationships should at least be included among the list of forbidden marriages.
 1955 edition of the Book of Common Prayer (Church of England)
 Taken from the 1908 edition of The Book of Common Prayer (Church of England)
First and foremost, in the UK you cannot marry out of the sudden. The procedure is to first give notice at a registrar office of your choosing, then wait for at least four full weeks (28 days), and if there are no objections to the marriage, then you can marry. Now a marriage between two non-nationals is slightly more work than that.
To give notice as a non-resident outside of EEA or Switzerland, you will need to come to UK on what is called Marriage Visitor visa. It has a similar effect as a standard visitor visa, but gives you the right to give notice and get married in the UK, but also comes with more scrutiny by the Immigration control. You will not only have to prove to be in a genuine relationship but also make an iron-clad case that you will not decide to stay permanently in the UK after getting married.
So that gives a direct answer to your question, as on visitors visa you will not be able to even give notice at registrars office as they will ask about your immigration status. Besides the marriage visa, there are also many other requirements you will have to fulfil before you can marry in the UK, have a look at gov.uk website dedicated to them. If you want to learn more about them, please open subsequent questions about specific parts that are unclear..
You cannot marry in the UK on a standard visitor visa. This is a limitation of the visa, not of UK marriage procedures.
The only exception is if you already have a civil partnership - and you can't form a new civil partnership on an SVV either.
In terms of actually getting married, there are five different sets of rules in England and Wales that determine how you get married, and Scotland and Northern Ireland are different again.
The five rules are: Registrar: These are the only rules for a non-religious ("civil") marriage they require the marriage to have four week's notice, which is made public. Weddings have to be either at the registry office (which will be very basic) or at a licensed venue (which you would, obviously, have to pay for). Venue licensing is very complicated and you need to check that the venue is already licensed, because (unless you're very rich) it will be much too expensive to license a venue just for your wedding. One important rule is that only indoor venues can be licensed outdoor weddings cannot be conducted under a registrar. Same-sex weddings are allowed with registrars.
Jewish marriages: The Board of Deputies of British Jews approves Jewish marriages, and they license rabbis to perform marriages. If you are both Jewish, then Jewish marriages are very flexible, without notice requirements or need for the venue to be licensed - Jewish weddings are just about the only outdoor weddings in England. It's up to the rabbi whether to allow same-sex weddings or not.
Quaker marriages: The Society of Friends approves Quaker marriages, and is not subject to external regulation. However, they are unlikely to approve a marriage that isn't held as part of a regular Meeting for Worship in a Friends' Meeting House, so you pretty much have to be a member of a regular Meeting to have one. While Quakers are allowed to conduct outdoor weddings, they don't. Quakers allow same-sex weddings.
Other religions (other than Jews, Quakers and Church of England): A place of worship must be licensed to conduct weddings. You have to give notice at the register office 28 days before the wedding, just as for a wedding with the registrar, but the religious celebrant will conduct and register the wedding. The licence for the place of worship will determine whether same-sex weddings are permitted (they mostly aren't).
Church of England: Notice is done either through Banns or a Licence. Banns have to be read at the Sunday service each of the three Sundays before the wedding - but they must be read at the church where the wedding will be and at the home churches of both participants. Otherwise you need a Licence - a Common Licence if you live outside England and Wales but are EEA (inc British, EU) or Swiss citizens. Alternatively, you can give notice at a registry office in the usual way for a civil wedding, which grants you a Superintendent Registrar's Certificiate - this is the only way to marry in the Church of England if either or both people are nationals of countries outside the EEA (or Switzerland). Church of England weddings cannot be same-sex.
The registrar will always check your immigration status before allowing you to give notice. The only ways around this are Banns (but you're not resident in the UK, so that won't work), to get a Special Licence from the Archbishop of Canterbury for a Church of England wedding (very unlikely, let's be honest), or to be Jewish or Quaker. While the marriage in those cases would be legal, it would also be a breach of your visa and you'd be likely to get deported.
In both Scotland and Northern Ireland, all weddings go through providing notice to a registrar 28 days in advance, which means that the registrar checks immigration status at that point. The actual conduct of weddings in those countries is much more flexible than in England and Wales (notably: you can marry outdoors in Scotland), but the law is much more standardised.
If you want to marry, you need either a Marriage Visitor Visa (if you intend to live outside the UK after the marriage) or a Family Visa (if you intend to live in the UK after the marriage). I expect you will find it difficult to get a Marriage Visitor Visa if your intended spouse is permanently resident in the UK as the immigration officer is very unlikely to believe that you don't intend to live with your spouse after marriage.
Frankly My Dear. Gay Men Marry Straight Women! Here's Why!
As archaic as it might sound, even with all the media hype, touting celebratory strides forward for LGBTQ rights, there's still a dirty little societal secret getting brushed under the rug. gay men, in droves, are still being forced, shamed, and belief-poisoned to do the right thing -- marry heterosexual women even though they (the men) know they're gay.
Now, before you glass house dwellers start throwing your vicious verbal and judgmental assaults, I invite you to swear on a stack of Bible's that you've stood in a gay man's shoes, pummeled emotionally and intellectually by family, church, and society's pressure to be the heterosexual marrying kind. Yes, stand in his shoes and make sure they fit perfectly like Cinderella's glass slipper, before you open your condescending, wicked stepsister, sneering mouth.
If you haven't lived and breathed sexual orientation confusion, felt gay shame, or laid awake at night wishing that you really could pray the gay away, then honestly, you've nothing to contribute to this discussion and everything to learn from reading further as to why some gay men take the road of heterosexual matrimony instead of embracing the truth of who they are -- gay men!
Quite honestly, all the inside scoop that I'm about to dispense into your grey matter, if you choose to open your minds to a reality check, can be found in my recently released book -- Frankly My Dear I'm Gay: A Late Bloomers Guide To Coming Out. Yet again, for those of you who believe you know better than those of us who've lived the journey, just taking my word for it would fan the flames of my world against yours.
Instead, I've decided to not only share excerpts from my book about the journey, but to first, provide personal experiences from a sampling of fellow travelers who chose to say "I do" for all the wrong reasons.
The Sampling: Men, ages 30 to 60. Baby boomers and Gen X'ers. Most tied the knot with their wives between the ages of 21 - 35, and between the years of 1973 - 2002. Their marriages lasted from 8 - 38 years.
Reasons They Chose To Get Married (Here's where you're invited to open your minds and listen carefully!)
• I had great parents that I loved very much and I didn't want to disappoint them so I thought I could overcome by gay feelings by getting married and having kids.
• I truly believed that if I did all the right things, God would honor my obedience and 'make it work.'
• I married my best friend. I wanted to create a life and a family with her. I did what I wanted to do, not so much what society said I should do, and I don't regret that. I thought it would take away the thoughts and feelings I had for men.
• I got married because I wanted to achieve an ideal of normalcy that was based on convictions that were thrust upon me by my family and religion, not on the convictions that I ever carved out on my own. I obediently did what was expected of me because I thought I had no other choice.
• I wanted to do anything that might make me straight.
• I believed that IF I didn't get married everyone would know or somehow find out that I was GAY!
• I married because I wasn't strong enough to stand up to family, religion, and society. I was born and raised by homophobic people and structures, and I was persuaded to be a homophobic gay man.
• In very conservative Christian circles, it was just expected that marriage and having kids was the way. If I came out back then, I would have gotten kicked out of the church. I just thought it was the right thing to do -- deep down inside. I suppose, I thought it would fix me. I was too afraid of letting the real me out -- it was safer to hide in a marriage.
• I wanted the suspicions of "he's gotta be gay" to stop. I wanted to honor my faith. I wanted to have sex. I was certain that sex with a woman would make the gay feelings go away. It did for about 5 years. I wanted to be normal.
• I was anxious about it but had hope that someday I could be fully attracted to her. If I did the right things, was faithful, and continued in my commitment to her that God would honor that and allow me to achieve my goals.
• I thought that marriage would cause me to fit in and be like everyone else. I had never fit in. I was picked on and bullied my entire life and I wanted to be in society.
• I wanted to be "normal" and "straight." I truly loved my wife. She was my best friend. I wanted a family and to have the "American Dream" I felt I could never have as a gay man. I wanted to deny the gay in me and live a straight life.
As you can see/hear, if you're willing to observe/listen to these men's beautiful and painful stories, it's not as black and white as one might think, to honor one's self and be all the colors of the gay rainbow. But let's also look deeper at the commonalities of reasoning -- religion, family expectations, societal shame, decades of the '70s, '80s, and '90s when gay anything was a dirty word, even if it was becoming more mainstream to talk about.
For me and my experience, I echo each man's words, their experiences, their approximate age when they married, the length of their marriages (mine was 13 years), and the bubbles of beliefs and pressures that cause me to clamp down the lid on the pressure cooker that would become my hidden gay life. This excerpt from Frankly My Dear I'm Gay gives you a pretty good indication of where my head was throughout all of this.
"Coming out late in life wasn't easy, fun, joyful, a cakewalk, or a mind-blowing orgasm. Well, actually, it was all of those things and then some. My experience was more like a drag queen I played a straight guy, who was really a gay guy, pretending not to be gay, all without makeup, or costumes to make the illusion work for a long, long, time. Precisely, the reason IT finally unraveled, IT being my less than Oscar winning performance of living the heterosexual life. Like many of you who are brave enough to have purchased this book (make sure you have a good hiding place for it, or get the Kindle version), I couldn't keep track of whether I was coming, or going. Wasn't sure I'd covered my tracks, kept my stories in order, or even slipped up. Stress, worry, lying, pretending, and sleepless nights were all tightly packed into the Louis Vuitton luggage of my life. Those bags had become so damn heavy and there wasn't a hot bellboy in sight to carry them. Well, there were a few bellboys, but I'm not one to kiss and tell."
Frankly My Dear I'm Gay, book excerpt, Page 9
All tongue and cheek aside, one's decision to enter into a heteronormative marriage, all in the name of "doing the right thing" based on someone else's "normal," is still an annoying, pebble in societies shoe. Each and every day, mixed orientation marriages sprout to life from misguided attempts at self-preservation to "fit-in." This blatant, consciously unconscious denial of self leads to years of habitual inauthentic living, as if there is no other choice.
In reality, regardless of your sexual orientation, here's some truth for you to consider.
"Parents, society, and even friends are telling us "who we should be," and "what we are to believe," which is setting a ridiculously fast pace for buying into bullshit on a regular basis! If that works for you, then great, it works for you. Please take no offense, none intended. Rarer than finding delicious fruitcake, it's hard to be human, let alone gay, and then to be stung by the "Should Bee's" of life put upon us by others. Don't roll your eyes and look away, or jump in with a fake hand to chest shriek of, "Not me!" I'm not buying it honey! Admit, you've been stung more than once by the "Should Bee's!" If you don't, I'll just have to bitch slap you. And, I'm really not in the mood for that, given we've only just met!"
Frankly My Dear I'm Gay, book excerpt, Page 37
So the burning question that some of you may still be asking is, "Why do gay men marry straight women?" Frankly My Dear because, sometimes it takes time to live the life your meant to live to experience, experiences not yet experienced and to embrace people your meant to embrace, so that one day you'll finally have the courage, maturity, and confidence to accept that the truth of who you are is more important than the false truth of pretending to be someone you're not. That's also the day you'll discover that true freedom comes from trusting yourself enough to be yourself.
Classical antiquity Edit
In the Roman Empire, the Emperor Augustus introduced marriage legislation, the Lex Papia Poppaea, which rewarded marriage and childbearing. The legislation also imposed penalties on young persons who failed to marry and on those who committed adultery. Therefore, marriage and childbearing was made law between the ages of twenty-five and sixty for men, and twenty and fifty for women.  Women who were Vestal Virgins were selected between the ages of 6 and 10 to serve as priestesses in the temple of goddess Vesta in the Roman Forum for 30 years, after which time they could marry. 
Noblewomen were known to marry as young as 12 years of age,  whereas women in the lower social classes were more likely to marry slightly further into their teenage years.   The father had the right and duty to seek a good and useful match for his children, and might arrange a child's betrothal long before he or she came of age (age of maturity).  To further the interests of their birth families, daughters of the elite would marry into respectable families.  If a daughter could prove the proposed husband to be of bad character, she could legitimately refuse the match. 
In Roman law, age of majority was 21 years old, though the age of marriage was 12 years for females and 14 years for males, and age of betrothal was 7 years for both males and females. The age of lawful consent to a marriage was 12 for maidens and 14 for youths. 
Ancient Roman law required brides to be at least 12 years old. In ancient Roman law, first marriages to brides aged 12–25 required the consent of the bride and her father, but by the late antique period Roman law permitted women over 25 to marry without parental consent. 
In late antiquity, most Roman women married in their late teens to early twenties, but noble women married younger than those of the lower classes, as an aristocratic maiden was expected to be virgin until her first marriage.  In late antiquity, under Roman law, daughters inherited equally from their parents if no will was produced.  In addition, Roman law recognized wives' property as legally separate from husbands' property,  as did some legal systems in parts of Europe and colonial Latin America.
In 380 CE, the Emperor Theodosius issued the Edict of Thessalonica, which made Catholicism the official religion of the Roman Empire. The Catholic Church adopted Roman law into Canon law. 
Historically, individuals were allowed to enter into a marriage contract at a very young age. This coincided with signs of puberty: such as the start of menstruation for a female and the growth of pubic hair for a male. In Ancient Rome, the appropriate minimum age was regarded as 14 for males and 12 for females. 
Post-classical history Edit
After the fall of the Western Roman Empire and the rise of the Holy Roman Empire, manorialism also helped weaken the ties of kinship and thus the power of clans as early as the 9th century in northwestern France, families that worked on manors were small, consisting of parents and children and occasionally a grandparent. The Roman Catholic Church and State had become allies in erasing the solidarity and thus the political power of the clans the Church sought to replace traditional religion, whose vehicle was the kin group, and substitute the authority of the elders of the kin group with that of a religious elder at the same time, the king's rule was undermined by revolts by the most powerful kin groups, clans or sections, whose conspiracies and murders threatened the power of the state and also the demands by manorial lords for obedient, compliant workers.  As the peasants and serfs lived and worked on farms that they rented from the lord of the manor, they also needed the permission of the lord to marry. Couples therefore had to comply with the lord of the manor and wait until a small farm became available before they could marry and thus produce children those who could and did delay marriage were presumably rewarded by the landlord and those who did not were presumably denied that reward.  For example, marriage ages in Medieval England varied depending on economic circumstances, with couples delaying marriage until their early twenties when times were bad, but might marry in their late teens after the Black Death, when there was a severe labour shortage  by appearances, marriage of adolescents was not the norm in England. 
In medieval Western Europe, the rise of Catholicism and manorialism had both created incentives to keep families nuclear, and thus the age of marriage increased the Western Church instituted marriage laws and practices that undermined large kinship groups. The Catholic Church prohibited consanguineous marriages, a marriage pattern that had been a means to maintain clans (and thus their power) throughout history.  The Roman Catholic Church curtailed arranged marriages in which the bride did not clearly agree to the union. 
Male and female adolescents needed parental consent to marry because they were under the age of majority, 21 years old. In the 12th century, the Roman Catholic Church drastically changed legal standards for marital consent by allowing daughters over 12 years old and sons over 14 years old to marry without their parents' approval, even if their marriage was made clandestinely.  Parish studies have confirmed that in the late medieval period females did sometimes marry without their parents' approval in England. 
In the 12th century, Canon law jurist Gratian, stated that consent for marriage could not take place before the age of 12 years old for females and 14 years old for males and consent for betrothal could not take place before the age of 7 years old for females and males, as that is the age of reason. The Church of England, after breaking away from the Roman Catholic Church, carried with it the same minimum age requirements. Age of consent for marriage of 12 years old for maidens and of 14 years old for youths were written into English civil law. 
The first recorded age-of-consent law, in England, dates back 800 years. The age of consent law in question has to do with the law of rape and not the law of marriage as sometimes misunderstood. In 1275, in England, as part of the rape law, the Statute of Westminster 1275, made it a misdemeanor to "ravish" a "maiden within age", whether with or without her consent. The phrase "within age" was interpreted by jurist Sir Edward Coke as meaning the age of marriage, which at the time was 12 years old.  A 1576 law was created with more severe punishments for ravishing a girl for which the age of consent was set at 10 years old.  Under English common law the age of consent apart of the law of rape was 10 or 12 years old and rape was defined as forceful sexual intercourse with a woman against her will. To convict a man of rape, both force and lack of consent had to be proved, except in the case of a girl who is under the age of consent. Since the age of consent applied in all circumstances, not just in physical assaults, the law also made it impossible for an underage girl (under 12 years old) to consent to sexual activity. There was one exception: a man's acts with his wife (females over 12 years old), to which rape law did not apply.  Jurist Sir Matthew Hale stated that both rape laws were valid at the same time.  In 1875, the Offence Against the Persons Act raised the age to 13 years in England an act of sexual intercourse with a girl younger than 13 was a felony. 
There were some fathers who arranged marriages for a son or a daughter before he or she reached the age of maturity, which is similar to what some fathers in ancient Rome did. Consummation would not take place until the age of maturity. Roman Catholic Canon law defines a marriage as consummated when the "spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh."  There are recorded marriages of two- and three-year-olds: in 1564, a three-year-old named John was married to a two-year-old named Jane in the Bishop's Court in Chester, England.
Modern history Edit
The policy of the Roman Catholic Church, and later various protestant churches, of considering clandestine marriages and marriages made without parental consent to be valid was controversial, and in the 16th century both the French monarchy and the Lutheran Church sought to end these practices, with limited success. 
In most of Northwestern Europe, marriages at very early ages were rare. One thousand marriage certificates from 1619 to 1660 in the Archdiocese of Canterbury show that only one bride was 13 years old, four were 15, twelve were 16, and seventeen were 17 years old while the other 966 brides were at least 19 years old. 
In England and Wales, the Marriage Act 1753 required a marriage to be covered by a licence (requiring parental consent for those under 21) or the publication of banns (which parents of those under 21 could forbid). Additionally, the Church of England dictated that both the bride and groom must be at least 21 years of age to marry without the consent of their families in the certificates, the most common age for the brides is 22 years. For the grooms 24 years was the most common age, with average ages of 24 years for the brides and 27 for the grooms.  While European noblewomen often married early, they were a small minority of the population,  and the marriage certificates from Canterbury show that even among nobility it was very rare to marry women off at very early ages. 
The minimum age requirements of 12 and 14 were eventually written into English civil law. By default, these provisions became the minimum marriage ages in colonial America.  Marriages occurred several years earlier, on average, in colonial America than in Europe, and much higher proportions of the population eventually married. Community-based studies suggest an average age at marriage of about 20 years old for women in the early colonial period and about 26 years old for men.  In the late 19th century and throughout the 20th century, U.S. states began to slowly raise the minimum legal age at which individuals were allowed to marry. Age restrictions, as in most developed countries, have been revised upward so that they are now between 15 and 21 years of age. 
Before 1929, Scots law followed Roman law in allowing a girl to marry at twelve years of age and a boy at fourteen, without any requirement for parental consent. However, marriage in Scotland at such young ages was in practice almost unknown. 
In France, until the French Revolution, the marriageable age was 12 years for females and 14 for males. Revolutionary legislation in 1792 increased the age to 13 years for females and 15 for males. Under the Napoleonic Code in 1804, the marriageable age was set at 15 years old for females and 18 years old for males.  In 2006, the marriageable age for females was increased to 18, the same as for males. In jurisdictions where the ages are not the same, the marriageable age for females is more commonly two or three years lower than that for males.
Eastern Europe Edit
In medieval Eastern Europe, the Slavic traditions of patrilocality of early and universal marriage (usually of a bride aged 12–15 years, with menarche occurring on average at 14) lingered  the manorial system had yet to penetrate into Eastern Europe and had generally had less effect on clan systems there and the bans on cross-cousin marriages had not been firmly enforced. 
In 17th century Poland, in the Warsaw parish of St John, the average age of women entering marriage was 20.1, and of men, 23.7. In the second half of the eighteenth century, women in the parish of Holy Cross married at 21.8, while men at 29. 
In Russia, before 1830 the age of consent for marriage was 15 years old for males and 13 years old for females  (though 15 years old was preferred for females, so much so that it was written into the Law Code of 1649).  Teenage marriage was practiced for chastity. Both the female and the male teenager needed consent of their parents to marry because they were under 20 years old, the age of majority. In 1830, the age of consent for marriage was raised to 18 years old for males and 16 years old for females  (though 18 years old was preferred for females). The average age of marriage for females was around 19 years old.  
In the majority of countries, 18 is the marriageable age as of right. However, most of these countries allow those younger than that age to marry, usually with parental consent or judicial authorization. These exceptions vary considerably by country. The United Nations Population Fund stated: 
In 2010, 158 countries reported that 18 years was the minimum legal age for marriage for women without parental consent or approval by a pertinent authority. However, in 146 [of those] countries, state or customary law allows girls younger than 18 to marry with the consent of parents or other authorities in 52 countries, girls under age 15 can marry with parental consent. In contrast, 18 is the legal age for marriage without consent among males in 180 countries. Additionally, in 105 countries, boys can marry with the consent of a parent or a pertinent authority, and in 23 countries, boys under age 15 can marry with parental consent.
In recent years, many countries in the EU have tightened their marriage laws, either banning marriage under 18 completely, or requiring judicial approval for such marriages. Countries which have reformed their marriage laws in recent years include Sweden (2014), Denmark (2017), Germany (2017), Luxembourg (2014), Spain (2015), Netherlands (2015), Finland (2019) and Ireland (2019). Many developing countries have also enacted similar laws in recent years: Honduras (2017), Ecuador (2015), Costa Rica (2017), Panama (2015), Trinidad & Tobago (2017), Malawi (2017).
The minimum age requirements of 12 years old for females and 14 years old for males were written into English civil law. By default, these provisions became the minimum marriage ages in colonial America. This English common law inherited from the British remained in force in America unless a specific state law was enacted to replace them. In the United States, as in most developed countries, age restrictions have been revised upward so that they are now between 15 and 21 years of age. 
In Western countries, marriages of teenagers have become rare in recent years, with their frequency declining during the past few decades. For instance, in Finland, where in the early 21st century underage youth could obtain a special judicial authorization to marry, there were only 30–40 such marriages per year during that period (with most of the spouses being aged 17), while in the early 1990s, more than 100 such marriages were registered each year. Since 1 June 2019 Finland has banned marriages of anyone under 18 with no exemptions.  
The marriage age as a right is usually the same with the age of majority which is 18 years old in most countries. However, in some countries, the age of majority is under 18, while in others it is 19, 20 or 21. In Canada for example, the age of majority is 19 in Nova Scotia, New Brunswick, British Columbia, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut, and marriage under 19 in these provinces requires parental or court consent (see Marriage in Canada). In USA for example, the age of majority is 21 in Mississippi and 19 in Nebraska and requires parental consent. In many jurisdictions of North America, by marriage minors become legally emancipated. 
- For a marriage under the Marriage Act, 1961, parental consent is required for the marriage of a party under the age of majority,  which was formerly 21 but is now 18. The special consent of the Minister of Home Affairs is also required for the marriage of a girl under the age of 15 or a boy under the age of 18. 
- Under the Civil Union Act, 2006, which allows for same-sex or opposite-sex marriages, both parties must be 18 or older. 
- Under the Recognition of Customary Marriages Act, 1998, a customary marriage entered into after the passage of the act will only be recognised if both parties were 18 or older. 
|Country||Without parental or judicial consent||With parental consent||With judicial consent||Notes|
|Afghanistan||18||16||18||15||18||15||15 for females with the consent of the father or with judicial approval. Under the Civil Code, Article 70 sets the marriageable age at 18 for males and 16 for females. However, Article 71 creates an exception to the above, stating: "(1) Where the girl does not complete the age provided under Article 70 of this law, the marriage may be concluded only through her father or the competent court. (2) The marriage of a minor girl whose age is less then [sic] 15 shall never be permissible."  In practice, however, marriage often occurs at much younger ages, as different ethnic groups in Afghanistan have various traditions, many accepting marriage at young ages. |
|Bangladesh||21||18||None||Bangladeshi law provides penal sanctions for the contraction of under-age marriages, although such unions are not considered invalid.  Despite the law, child marriage rates in Bangladesh are among the highest in the world. Every 2 out of 3 marriages involve child marriages. |
|Brunei||18||14 ||Minimum legal age for marriage without parental consent varies across states/provinces, ethnic groups, religious groups or forms of marriage. |
|China||22||20||22||20||–||China is the only country to have the highest set marriageable age for men. |
|India||21||18||21||18||21||18||If any partner(s) engages in marriage at a younger age, (s)he can ask for the marriage to be declared void. A recent recommendation by the Law Commission aims to equalize the marriage age for males and females to 18.  Official policy automatically declares marriages under 15 as "null and void", while marriages at the age of 14 or 15 are "voidable". In 2012, the high court declared that Muslim women can marry at 15.  Additionally, the report declares that "In spite of these legal provisions, child marriage is still widely practiced and a marriage solemnized in contravention of these provisions is not void even under the new PCMA, 1929, the Hindu Marriage Act, 1955 and also under the Muslim Law.".  However India is one of the 10 countries with the highest rates of child marriage. |
|Indonesia||21||19||None||.  |
|Iran||18||15||15||13||15||13||  Ways around these regulations include temporary marriages (Nikah mut‘ah).  With the permission of a court girls may marry at a younger age during 2010 as many as 42,000 children aged between 10 and 14 were married,  and 716 girls younger than 10 had wed. |
|Iraq||18||15||15 with judicial permission if fitness, physical capacity and guardian's consent (or unreasonable objection on part of guardian) are established. (These rules may have been revised after Saddam Hussein's fall. [ citation needed ] ) |
|Israel||18||16||Minimum marriageable age increased from 17 to 18 in November 2013. Family courts able to recognise marriage for 16 and above in special cases. |
|Kyrgyzstan||18||17||Local self-government agencies may, at the request of the parties entering the marriage, provided that justifiable reasons exist, lower the marriage age. The marriage age may not be lowered by more than 1 year. |
|Lebanon||18||17||17||15||15||14|| 18 or 17 and 16 or 15 with judicial permission for Druze. |
|Macau||18||16||Articles 1478, 1479 and 1482 of the Civil Code|
|Malaysia||21||18||16||A special marriage licence granted by the Chief Minister must be obtained for female sixteen (16) years and above but under the age of eighteen (18) years. |
|Maldives||18||16||According to custom, the minimum age for marriage is 15. The Law on the Protection of the Rights of the Child discourages marriage before the age of 16. |
|Nepal||20||20||–||(Civil Code 2017, Section 70 and 71) Marriage may be concluded if both have attained twenty years of age.|
Notwithstanding anything contained in clause (b) of sub-section (1), nothing shall bar the conclusion, or causing the conclusion of, a marriage within the relationship that is allowed to marry in accordance with the practices prevailing in their ethnic community or clan 
The marriageable age as a right is 18 in all European countries, with the exception of Andorra and Scotland where it is 16 (for both sexes). Existing exceptions to this general rule (usually requiring special judicial or parental consent) are discussed below. In both the European Union and the Council of Europe the marriageable age falls within the jurisdiction of individual member states. The Istanbul convention, the first legally binding instrument in Europe in the field of violence against women and domestic violence,  only requires countries which ratify it to prohibit forced marriage (Article 37) and to ensure that forced marriages can be easily voided without further victimization (Article 32), but does not make any reference to a minimum age of marriage.
England and Wales: 16 with parental consent or the permission of the court. 
Northern Ireland: 16 with parental consent (with the court able to give consent in some cases). 
|Country||Without parental or judicial consent||With parental consent||With judicial consent||Notes|
|Australia||18||16||16 with permission from a court and both parents (only granted in exceptional circumstances).  Also in its external territories.|
|New Zealand||18||16||16 with permission from a court and both parents.  |
|Papua New Guinea||21|||
Classical Antiquity Edit
In ancient Israel, men twenty years old and older would become warriors  and when they would get married, they would get one year leave of absence to be with their wife. 
Before the end of Second Temple Judaism, Rabbis set the age of marriage for every Israelite at 18 years old.  Women were expected to marry by 20 years old and men were expected to marry by 24 years old.
In late antiquity, males and females were expected to be married by 20 years old in teenage marriage.  Rabbis estimated the age of maturity from about the beginning of the thirteenth year with women and about the beginning of the fourteenth year with men. 
A large age gap between spouses, in either direction, is advised against as unwise.  A younger woman marrying a significantly older man, however, is especially problematic: marrying one's young daughter to an old man was declared, by the Sanhedrin, as reprehensible as forcing her into prostitution. 
Post-Classical period Edit
In Rabbinic Judaism, males cannot consent to marriage until they reach the age of 13 years and a day and have undergone puberty and females cannot consent to marriage until they reach the age of 12 years and a day and have undergone puberty. Males and females are considered minors until the age of twenty. After twenty, males are not considered adults if they show signs of impotence. If males show no signs of puberty or do show impotence, they automatically become adults by age 35 and can marry.  
Marriage involved a double ceremony, which included the formal betrothal and wedding rites. 
The minimum age for marriage was 13 years old for males and 12 years old for females but formal betrothal could take place before that and often did. Talmud advises males to get married at 18 years old or between 16 years old and 24 years old. 
A ketannah (literally meaning "little [one]") was any girl between the age of 3 years and that of 12 years plus one day  she was subject to her father's authority, and he could arrange a marriage for her without her agreement.  However, after reaching the age of maturity, she would have to agree to the marriage to be considered as married.  
Modern period Edit
Jewish people follow the law of the land that they live in. In modern Israel, the general age for marriage is 18 years old for males and females but with judicial consent 16 year old males and females can marry.
Catholic canon law adopted Roman law, which set the minimum age of marriage at 12 years old for females and 14 years old for males. The Roman Catholic Church raised the minimum age of marriage to 14 years old for females and to 16 years old for males in 1917 and lowered the age of majority to 18 years old in 1983.
|blank||Without parental or ordinary officer consent||With parental consent||With ordinary officer consent||Notes|
|Male consent||Female consent||Male consent||Female consent||Male consent||Female consent|
|Roman Catholic Church||18||18||16||14||16||14||The minimum ages of consent for marriage in the Catholic Church are 14 for girls and 16 for boys. Being underage constitutes a diriment impediment. That is, a marriage involving an underage bride or groom is canonically invalid. A Conference of Bishops may adopt a higher age for marriage, but in that case, the higher age only creates a prohibitive impediment, that is, a marriage involving a bride or groom above the Church's minimum age but below that set by the Conference is valid but illicit. Permission to marry against a civil authority's directive requires the permission of the Ordinary, which, in the case of sensible and equal laws regarding marriage age, is not usually granted. The permission by the Ordinary is also required in case of a marriage of a minor when their parents are unaware of his marriage or if their parents reasonably oppose the marriage. |
Higher ages set by Conferences of Bishops Edit
|Male consent||Female consent||Notes|
|England and Wales||16|||
|Nigeria||see note||Each bishop has the authority to set a higher prohibitive minimum age. |
Golden Age Edit
Sunni and Shia Edit
Hanafi and Ja'fari schools of classical Islamic jurisprudence interpret the "age of marriage", in the Quran (24:5965:4), as the beginning of puberty.
'Büchler and Schlater mention that the schools of Islamic jurisprudence (madhaahib) set the following marriageable ages for boys and girls: 
|Male consent||Female consent||Notes|
Marriages were traditionally contracted by the father or guardian of the bride and her intended husband. 
Shafiʽi, Hanbali, and Maliki schools of classical Islamic jurisprudence interpret the "age of marriage", in the Quran (24:59), as completion of puberty. For Shafiʽi, Hanbali, and Maliki schools of Islamic jurisprudence, in Sunni Islam, the condition for marriage is physical (bulugh) maturity and mental (rushd) maturity.
Büchler and Schlater mention that the schools of Islamic jurisprudence (madhaahib) set the following marriageable ages for boys and girls: 
|Male consent||Female consent||Notes|
Büchler and Schlater state that "marriageable age according to classical Islamic law coincides with the occurrence of puberty. The notion of puberty refers to signs of physical maturity such as the emission of semen or the onset of menstruation". 
According to the Shafiʽi book of Jurisprudence Reliance of the Traveler by Ahmad Ibn Naqib Al-Misri (died 1368 A.D.):
No one may marry her to another after she has reached puberty without her express permission, no matter whether the guardian is the father, father's father, or someone else. m3.15 No guardian may marry a girl to someone who is not a suitable match (def: m4) without her acceptance and the acceptance of all who can be guardians (def: m3.7). 
Modern period Edit
Marriages are traditionally contracted by the father or guardian of the bride and her intended husband. 
The 1917 codification of Islamic family law in the Ottoman empire distinguished between the age of competence for marriage, which was set at 18 for boys and 17 for girls, and the minimum age for marriage, which followed the traditional Hanafi minimum ages of 12 for boys and 9 for girls. Marriage below the age of competence was permissible only if proof of sexual maturity was accepted in court, while marriage under the minimum age was forbidden.
During the 20th century, most countries in the Middle East followed the Ottoman precedent in defining the age of competence, while raising the minimum age to 15 or 16 for boys and 15–16 for girls. Marriage below the age of competence is subject to approval by a judge and the legal guardian of the child. Egypt diverged from this pattern by setting the age limits of 18 for boys and 16 for girls, without a distinction between competence for marriage and minimum age. 
Many senior clerics in Saudi Arabia have opposed setting a minimum age for marriage, arguing that a girl reaches adulthood at puberty. 
However in 2019 Members of the Saudi Shoura Council in 2019 approved fresh regulations for child marriage that will see to outlaw marrying off 15-year-old children and force the need for court approval for those under 18. Chairman of the Human Rights Committee at the Shoura Council, Dr. Hadi Al-Yami, said that introduced controls were based on in-depth studies presented to the body. He pointed out that the regulation, vetted by the Islamic Affairs Committee at the Shoura Council, has raised the age of marriage to 18 and prohibited it for those under 15. 
The Dharmaśāstras state that females can marry once they have reached puberty. However, there is no fixed age in Hinduism as the religion is not under any institution. 
Baha'i Faith Edit
In the Kitáb-i-Aqdas, the age of marriage is set at 15 for both boys and girls. It is forbidden to become engaged before the age of 15. 
Several couples were ready to tie the knot the moment the law changed.
Human rights campaigner Peter Tatchell acted as chief witness at a packed ceremony at Islington Town Hall in London just after midnight as Peter McGraith and David Cabreza were wed after 17 years together.
Mr Tatchell said the couple and all the others getting married had "made history" and "made Britain a more tolerant, equal place".
With a crowd of photographers, journalists and well-wishers waiting, the couple took the opportunity to highlight the international struggle for gay rights.
Mr McGraith said: "Very few countries afford their gay and lesbian citizens equal marriage rights and we believe that this change in law will bring hope and strength to gay men and lesbians in Nigeria, Uganda, Russia, India and elsewhere, who lack basic equality and are being criminalised for their sexual orientation."
Mr Cabreza added: "From a global and political perspective it's great too, but for us it's also about us and our marriage."
After marrying his partner Neil Allard at Brighton's Royal Pavilion, Andrew Wale said he found the ceremony "much more moving" than he expected.
"We were considering a civil partnership, even though we didn't think it was true equality, so we're very, very happy that this day has come, finally," he added.
Aarron Adem Erbas, who married Louis Monaco, also at Islington Town Hall, said: "We're going to celebrate the rest of the day and it means so much to us that we can have our friends and loved ones here. It's absolutely brilliant."
Later on Saturday, a crowd of about 2,000 people - which included a number of celebrities - gathered to watch comedian Sandi Toksvig and her partner Debbie renew their civil partnership vows.
The couple, who entered into a civil partnership seven years ago, exchanged vows on stage at the Royal Festival Hall in London at a special event to celebrate the introduction of gay marriage in the UK.
Toksvig, who presents the BBC Radio 4 News Quiz, said it was "an astonishing moment in history", adding: "There was many a time I thought this day would never come."
Those in civil partnerships can choose to convert their relationships to marriage, via a procedure expected to be in place by the end of the year, but are under no obligation to do so.
Archbishop of Canterbury Justin Welby said on Friday night the Church of England would now drop its opposition to same-sex marriage, as Parliament had spoken.
"The law's changed we accept the situation," he told the BBC.
But some religious groups remain opposed to gay marriage.
Andrea Williams, chief executive of Christian Concern, said: "We can't just redefine an institution - redefine something that always has been - because we say it's something that we want.
"This is actually very self-centred. This is not about rights, it's about seeking cultural dominance and seeking to redefine marriage for all of us."
There will now be two legal definitions of marriage, says the BBC's social affairs correspondent Reeta Chakrabarti - that recognised by the CofE and many other religious groups, and that recognised by the state.
"The Church of England believes marriage is between one man and one woman for life," the Bishop of Norwich, the Right Reverend Graham James confirmed.
"It's untidy for the law to have two definitions. but I think we can live with untidiness."
The law prohibits the Church of England from performing same-sex weddings, and allows other religious organisations to refuse to perform them.
The CofE has urged clergy to support members of the congregation who are in same-sex marriages, but has ruled that priests themselves must not enter into one. The Roman Catholic Church opposes the change in the law.
Some gay vicars, though, have said they are prepared to defy their bishops by insisting they have a right to marry.
Among them is the Reverend Andrew Cain, who said the Church was entering uncharted territory, but he would not be "frightened" out of doing what he believed was right.
Mr Cain, who plans to marry his partner in the summer, said he would do so whether the Church approved or not.
"It is more important to do what is right than to be frightened into not doing what I believe to be true.
"And I won't be frightened by what the possible consequences are for me. I could lose my job, absolutely. Lose my job, my home and my place."
According to a BBC survey, a fifth of British people would turn down an invitation to a same-sex wedding - a finding the Roman Catholic group Catholic Voices suggested meant people remained "deeply uncomfortable" with the move.
A Right to Marry? Same-sex Marriage and Constitutional LawMartha Nussbaum &squarf Summer 2009 (Ted Eytan / Flickr)
Marriage is both ubiquitous and central. All across our country, in every region, every social class, every race and ethnicity, every religion or non-religion, people get married. For many if not most people, moreover, marriage is not a trivial matter. It is a key to the pursuit of happiness, something people aspire to—and keep aspiring to, again and again, even when their experience has been far from happy. To be told “You cannot get married” is thus to be excluded from one of the defining rituals of the American life cycle.
The keys to the kingdom of the married might have been held only by private citizens—religious bodies and their leaders, families, other parts of civil society. So it has been in many societies throughout history. In the United States, however, as in most modern nations, government holds those keys. Even if people have been married by their church or religious group, they are not married in the sense that really counts for social and political purposes unless they have been granted a marriage license by the state. Unlike private actors, however, the state doesn’t have complete freedom to decide who may and may not marry. The state’s involvement raises fundamental issues about equality of political and civic standing.
Same-sex marriage is currently one of the most divisive political issues in our nation. In November 2008, Californians passed Proposition 8, a referendum that removed the right to marry from same-sex couples who had been granted that right by the courts. This result has been seen by the same-sex community as deeply degrading. More recently, Iowa and Vermont have legalized same-sex marriage, the former through judicial interpretation of the state constitution, the latter through legislation. Analyzing this issue will help us understand what is happening in our country, and where we might go from here.
Before we approach the issue of same-sex marriage, we must define marriage. But marriage, it soon becomes evident, is no single thing. It is plural in both content and meaning. The institution of marriage houses and supports several distinct aspects of human life: sexual relations, friendship and companionship, love, conversation, procreation and child-rearing, mutual responsibility. Marriages can exist without each of these. (We have always granted marriage licenses to sterile people, people too old to have children, irresponsible people, and people incapable of love and friendship. Impotence, lack of interest in sex, and refusal to allow intercourse may count as grounds for divorce, but they don’t preclude marriage.) Marriages can exist even in cases where none of these is present, though such marriages are probably unhappy. Each of these important aspects of human life, in turn, can exist outside of marriage, and they can even exist all together outside of marriage, as is evident from the fact that many unmarried couples live lives of intimacy, friendship, and mutual responsibility, and have and raise children. Nonetheless, when people ask themselves what the content of marriage is, they typically think of this cluster of things.
Nor is the meaning of marriage single. Marriage has, first, a civil rights aspect. Married people get a lot of government benefits that the unmarried usually do not get: favorable treatment in tax, inheritance, and insurance status immigration rights rights in adoption and custody decisional and visitation rights in health care and burial the spousal privilege exemption when giving testimony in court and yet others.
Marriage has, second, an expressive aspect. When people get married, they typically make a statement of love and commitment in front of witnesses. Most people who get married view that statement as a very important part of their lives. Being able to make it, and to make it freely (not under duress) is taken to be definitive of adult human freedom. The statement made by the marrying couple is usually seen as involving an answering statement on the part of society: we declare our love and commitment, and society, in response, recognizes and dignifies that commitment.
Marriage has, finally, a religious aspect. For many people, a marriage is not complete unless it has been solemnized by the relevant authorities in their religion, according to the rules of the religion.
Government plays a key role in all three aspects of marriage. It confers and administers benefits. It seems, at least, to operate as an agent of recognition or the granting of dignity. And it forms alliances with religious bodies. Clergy are always among those entitled to perform legally binding marriages. Religions may refuse to marry people who are eligible for state marriage and they may also agree to marry people who are ineligible for state marriage. But much of the officially sanctioned marrying currently done in the United States is done on religious premises by religious personnel. What they are solemnizing (when there is a license granted by the state) is, however, not only a religious ritual, but also a public rite of passage, the entry into a privileged civic status.
To get this privileged treatment under law people do not have to show that they are good people. Convicted felons, divorced parents who fail to pay child support, people with a record of domestic violence or emotional abuse, delinquent taxpayers, drug abusers, rapists, murderers, racists, anti-Semites, other bigots, all can marry if they choose, and indeed are held to have a fundamental constitutional right to do so—so long as they want to marry someone of the opposite sex. Although some religions urge premarital counseling and refuse to marry people who seem ill-prepared for marriage, the state does not turn such people away. The most casual whim may become a marriage with no impediment but for the time it takes to get a license. Nor do people even have to lead a sexual lifestyle of the type the majority prefers in order to get married. Pedophiles, sadists, masochists, sodomites, transsexuals—all can get married by the state, so long as they marry someone of the opposite sex.
Given all this, it seems odd to suggest that in marrying people the state affirmatively expresses its approval or confers dignity. There is indeed something odd about the mixture of casualness and solemnity with which the state behaves as a marrying agent. Nonetheless, it seems to most people that the state, by giving a marriage license, expresses approval, and, by withholding it, disapproval.
WHAT IS the same-sex marriage debate about? It is not about whether same-sex relationships can involve the content of marriage: few would deny that gays and lesbians are capable of friendship, intimacy, “meet and happy conversation,” and mutual responsibility, nor that they can have and raise children (whether their own from a previous marriage, children created within their relationship by surrogacy or artificial insemination, or adopted children). Certainly none would deny that gays and lesbians are capable of sexual intimacy.
Nor is the debate, at least currently, about the civil aspects of marriage: we are moving toward a consensus that same-sex couples and opposite-sex couples ought to enjoy equal civil rights. The leaders of both major political parties appeared to endorse this position during the 2008 presidential campaign, although only a handful of states have legalized civil unions with material privileges equivalent to those of marriage.
Finally, the debate is not about the religious aspects of marriage. Most of the major religions have their own internal debates, frequently heated, over the status of same-sex unions. Some denominations—Unitarian Universalism, the United Church of Christ, and Reform and Conservative Judaism—have endorsed marriage for same-sex couples. Others have taken a friendly position toward these unions. Mainline Protestant denominations are divided on the issue, although some have taken negative positions. American Roman Catholics, both lay and clergy, are divided, although the church hierarchy is strongly opposed. Still other denominations and religions (Southern Baptists, the Church of Jesus Christ of Latter-day Saints) seem to be strongly opposed collectively. There is no single “religious” position on these unions in America today, but the heat of those debates is, typically, denominational heat does not spill over into the public realm. Under any state of the law, religions would be free to marry or not marry same-sex couples.
The public debate, instead, is primarily about the expressive aspects of marriage. It is here that the difference between civil unions and marriage resides, and it is this aspect that is at issue when same-sex couples see the compromise offer of civil unions as stigmatizing and degrading.
The expressive dimension of marriage raises several distinct questions. First, assuming that granting a marriage license expresses a type of public approval, should the state be in the business of expressing favor for, or dignifying, some unions rather than others? Are there any good public reasons for the state to be in the marriage business at all, rather than the civil union business? Second, if there are good reasons, what are the arguments for and against admitting same-sex couples to that status, and how should we think about them?
Myth of the Golden Age
WHEN PEOPLE talk about the institution of marriage, they often wax nostalgic. They think, and often say, that until very recently marriage was a lifelong commitment by one man and one woman, sanctified by God and the state, for the purposes of companionship and the rearing of children. People lived by those rules and were happy. Typical, if somewhat rhetorical, is this statement by Senator Robert Byrd of West Virginia during the debates over the “Defense of Marriage” Act:
Mr. President, throughout the annals of human experience, in dozens of civilizations and cultures of varying value systems, humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength, and health of human society—a relationship worthy of legal recognition and judicial protection.
We used to live in that golden age of marital purity. Now, the story goes, things are falling apart. Divorce is ubiquitous. Children are growing up without sufficient guidance, support, and love, as adults live for selfish pleasure alone. We need to come to our senses and return to the rules that used to make us all happy.
Like most Golden Age myths, this one contains a core of truth: commitment and responsibility are under strain in our culture, and too many children are indeed growing up without enough economic or emotional support. We can’t think well about how to solve this problem, however, unless we first recognize the flaws in the mythic depiction of our own past. Like all fantasies of purity, this one masks a reality that is far more varied and complex.
To begin with, Byrd’s idea that lifelong monogamous marriage has been the norm throughout human history is just mistaken. Many societies have embraced various forms of polygamy, informal or common-law marriage, and sequential monogamy. People who base their ethical norms on the Bible too rarely take note of the fact that the society depicted in the Old Testament is polygamous.
In many other ancient societies, and some modern ones, sex outside marriage was, or is, a routine matter: in ancient Greece, for example, married men routinely had socially approved sexual relationships with prostitutes (male and female) and, with numerous restrictions, younger male citizens. One reason for this custom was that women were secluded and uneducated, thus not able to share a man’s political and intellectual aspirations. If we turn to republican Rome, a society more like our own in basing marriage on an ideal of love and companionship, we find that this very ideal gave rise to widespread divorce, as both women and men sought a partner with whom they could be happy and share a common life. We hardly find a major Roman figure, male or female, who did not marry at least twice. Moreover, Roman marriages were typically not monogamous, at least on the side of the male, who was expected to have sexual relations with both males and females of lower status (slaves, prostitutes). Even if wives at times protested, they understood the practice as typical and ubiquitous. These Romans are often admired (and rightly so, I think) as good citizens, people who believed in civic virtue and tried hard to run a government based on that commitment. Certainly for the founders of the United States the Roman Republic was a key source of both political norms and personal heroes. And yet these heroes did not live in a marital Eden.
In fact, there is no better antidote to the myth of marital purity than to read Cicero’s account of the unhappy marriage of his brother Quintus to Pomponia Attica, the sister of his best friend, Atticus. Through his narrative (however biased in his brother’s favor) we get a glimpse of something so familiar that it is difficult to believe it all happened around 50 B.C.E. Cicero is out in the country, on one of his estates, and his brother has (it seems) dragged his unwilling wife away from the city to spend a week on the farm—with a brother-in-law who doesn’t like her and who, despite his undoubted greatness, is more than a little self-obsessed:
When we arrived there Quintus said in the kindest way, “Pomponia, will you ask the women in…?” Both what he said and his intention and manner were perfectly pleasant, at least it seemed so to me. Pomponia however answered in our hearing, “I am a guest here myself.”… Quintus said to me, “There! This is the sort of thing I have to put up with every day.”…I myself was quite shocked. Her words and manner were so gratuitously rude. [They all go in to lunch, except for Pomponia, who goes straight to her room Quintus has some food sent up to her, which she refuses.] In a word, I felt my brother could not have been more forbearing nor your sister ruder… [The following day, Quintus has a talk with his brother.] He told me that Pomponia had refused to sleep with him, and that her attitude when he left the house was just as I had seen it the day before. Well, you can tell her for me that her whole conduct was lacking in sympathy.
The marriage lasted six more unhappy years and then ended in divorce.
The shock of seeing our own face in the mirror of Cicero’s intimate narrative reminds us that human beings always have a hard time sustaining love and even friendship that bad temper, incompatibility, and divergent desires are no invention of the sexual revolution. Certainly they are not caused by the recognition of same-sex marriage. We’ve always lived in a postlapsarian world.
The rise of divorce in the modern era, moreover, was spurred not by a hatred of marriage but, far more, by a high conception of what marriage ought to be. It’s not just that people began to think that women had a right to divorce on grounds of bodily cruelty, and that divorce of that sort was a good thing. It’s also that Christians began insisting—just like those ancient Romans—that marriage was about much more than procreation and sexual relations. John Milton’s famous defense of divorce on grounds of incompatibility emphasizes “meet and happy conversation” as the central goal of marriage and notes that marriage ought to fulfill not simply bodily drives but also the “intellectual and innocent desire” that leads people to want to talk a lot to each other. People are entitled to demand this from their marriages, he argues, and entitled to divorce if they do not find it. If we adopt Milton’s view, we should not see divorce as expressing (necessarily) a falling away from high moral ideals but rather an unwillingness to put up with a relationship that does not fulfill, or at least seriously pursue, high ideals.
In our own nation, as historians of marriage emphasize, a social norm of monogamous marriage was salient, from colonial times onward. The norm, however, like most norms in all times and places, was not the same as the reality. Studying the reality of marital discord and separation is very difficult, because many if not most broken marriages were not formally terminated by divorce. Given that divorce, until rather recently, was hard to obtain, and given that America offered so much space for relocation and the reinvention of self, many individuals, both male and female, simply moved away and started life somewhere else. A man who showed up with a “wife” in tow was not likely to encounter a background check to find out whether he had ever been legally divorced from a former spouse. A woman who arrived calling herself “the Widow Jones” would not be asked to show her husband’s death certificate before she could form a new relationship and marry. The cases of separation that did end up in court were the tip of a vast, uncharted iceberg. If, as historian Hendrik Hartog concludes about the nineteenth century, “Marital mobility marked American legal and constitutional life,” it marked, far more, the daily lives of Americans who did not litigate their separations.
Insofar as monogamy was reality, we should never forget that it rested on the disenfranchisement of women. Indeed, the rise of divorce in recent years is probably connected to women’s social and political empowerment more than to any other factor. When women had no rights, no marketable skills, and hence no exit options, they often had to put up with bad marriages, with adultery, neglect, even with domestic violence. When women are able to leave, they demand a better deal. This simple economic explanation for the rise of divorce—combined with Milton’s emphasis on people’s need for emotional attunement and conversation—is much more powerful than the idea of a fall from ethical purity in explaining how we’ve moved from where we were to where we are today. But if such factors are salient, denial of marriage to same-sex couples is hardly the way to address them
Throughout the nineteenth and early twentieth centuries, a distinctive feature of American marriage was the strategic use of federalism. Marriage laws have always been state laws (despite recurrent attempts to legislate a national law of marriage and divorce). But states in the United States have typically used that power to compete with one another, and marriage quickly became a scene of competition. Long before Nevada became famous as a divorce haven, with its short residency requirement, other states assumed that role. For quite a stretch of time, Indiana (surprisingly) was the divorce haven for couples fleeing the strict requirements of states such as New York (one of the strictest until a few decades ago) and Wisconsin. The reasons why a state liberalized its laws were complex, but at least some of them were economic: while couples lived out the residency requirement, they would spend money in the state. In short, as Hartog points out, marriage laws “became public packages of goods and services that competed against the public goods of other jurisdictions for the loyalty and the tax dollars of a mobile citizenry.”
What we’re seeing today, as five states (Massachusetts, Connecticut, Iowa, Vermont, and, briefly, California) have legalized same-sex marriage, as others (California, and Vermont and Connecticut before their legalization of same-sex marriage) have offered civil unions with marriage-like benefits, and yet others (New York) have announced that, although they will not perform same-sex marriages themselves, they will recognize those legally contracted in other jurisdictions, is the same sort of competitive process—with, however, one important difference. The federal Defense of Marriage Act has made it clear that states need not give legal recognition to marriages legally contracted elsewhere. That was not the case with competing divorce regimes: once legally divorced in any other U. S. state, the parties were considered divorced in their own.
But the non-recognition faced by same-sex couples does have a major historical precedent. States that had laws against miscegenation refused to recognize marriages between blacks and whites legally contracted elsewhere, and even criminalized those marriages. The Supreme Court case that overturned the anti-miscegenation laws, Loving v. Virginia, focused on this issue. Mildred Jeter (African American) and Richard Loving (white) got married in Washington, D. C., in 1958. Their marriage was not recognized as legal in their home state of Virginia. When they returned, there they were arrested in the middle of the night in their own bedroom. Their marriage certificate was hanging on the wall over their bed. The state prosecuted them, because interracial marriage was a felony in Virginia, and they were convicted. The judge then told them either to leave the state for twenty-five years or to spend one year in jail. They left, but began the litigation that led to the landmark 1967 decision.
In 2007, on the fortieth anniversary of that decision, Jeter Loving issued a rare public statement, saying that she saw the struggle she and her late husband waged as similar to the struggle of same-sex couples today:
My generation was bitterly divided over something that should have been so clear and right. The majority believed…that it was God’s plan to keep people apart, and that government should discriminate against people in love. But…[t]he older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.
The politics of humanity seems to require us to agree with her. Let’s consider, however, the arguments on the other side.
Panic Over Same-Sex Marriage
AS WE do that, we need to keep two questions firmly in mind. First, does each argument really justify legal restriction of same-sex marriage or only some peoples’ attitudes of moral and religious disapproval? We live in a country in which people have a wide range of different religious beliefs, and we agree in respecting the space within which people pursue those beliefs. We do not, however, agree that these beliefs, by themselves, are sufficient grounds for legal regulation. Typically, we understand that some beliefs (including some but not all moral commitments) can generate public arguments that bear on the lives of all citizens in a decent society, while others generate only intra-religious arguments. Thus, observant Jews abhor the eating of pork, but few if any would think that this religiously grounded abhorrence is a reason to make the eating of pork illegal. The prohibition rests on religious texts that not all citizens embrace, and it cannot be translated into a public argument that people of all religions can accept. Similarly in this case, we must ask whether the arguments against same-sex marriage are expressed in a neutral and sharable language or only in a sectarian doctrinal language. If the arguments are moral rather than doctrinal, they fare better, but we still have to ask whether they are compatible with core values of a society dedicated to giving all citizens the equal protection of the laws. Many legal aspects of our history of racial and gender-based discrimination were defended by secular moral arguments, but that did not insulate them from constitutional scrutiny.
Second, we must ask whether each argument justifies its conclusion or whether there is reason to see the argument as a rationalization of some deeper sort of anxiety or aversion.
The first and most widespread objection to same-sex marriage is that it is immoral and unnatural. Similar arguments were widespread in the anti-miscegenation debate, and, in both cases, these arguments are typically made in a sectarian and doctrinal way, referring to religious texts. (Anti-miscegenation judges, for example, referred to the will of God in arguing that racial mixing is unnatural.) It is difficult to cast such arguments in a form that could be accepted by citizens whose religion teaches something different. They look like Jewish arguments against the eating of pork: good reasons for members of some religions not to engage in same-sex marriage, but not sufficient reasons for making them illegal in a pluralistic society.
A second objection, and perhaps the one that is most often heard from thoughtful people, insists that the main purpose of state-sanctified marriage is procreation and the rearing of children. Protecting an institution that serves these purposes is a legitimate public interest, and so there is a legitimate public interest in supporting potentially procreative marriages. Does this mean there is also a public interest in restricting marriage to only those cases where there may be procreation? This is less clear. We should all agree that the procreation, protection, and safe rearing of children are important public purposes. It is not clear, however, that we have ever thought these important purposes best served by restricting marriage to the potentially procreative. If we ever did think like this, we certainly haven’t done anything about it. We have never limited marriage to the fertile or even to those of an age to be fertile. It is very difficult, in terms of the state’s interest in procreation, to explain why the marriage of two heterosexual seventy-year-olds should be permitted and the marriage of two men or two women should be forbidden—all the more because so many same-sex couples have and raise children.
As it stands, the procreation argument looks two-faced, approving in heterosexuals what it refuses to tolerate in same-sex couples. If the arguer should add that sterile heterosexual marriages somehow support the efforts of the procreative, we can reply that gay and lesbian couples who don’t have or raise children may support, similarly, the work of procreative couples.
Sometimes this argument is put a little differently: marriage is about the protection of children, and we know that children do best in a home with one father and one mother, so there is a legitimate public interest in supporting an institution that fulfills this purpose. Put this way, the argument, again, offers a legitimate public reason to favor and support heterosexual marriage, though it is less clear why it gives a reason to restrict same-sex marriage (and marriages of those too old to have children or not desiring children). Its main problem, however, is with the facts. Again and again, psychological studies have shown that children do best when they have love and support, and it appears that two-parent households do better at that job than single-parent households. There is no evidence, however, that opposite-sex couples do better than same-sex couples. There is a widespread feeling that these results can’t be right, that living in an “immoral” atmosphere must be bad for the child. But that feeling rests on the religious judgments of the first argument when the well-being of children is assessed in a religiously neutral way, there is no difference.
A third argument is that if same-sex marriage receives state approval, people who believe it to be evil will be forced to “bless” or approve of it, thus violating their conscience. This argument was recently made in an influential way by Charles Fried in Modern Liberty and the Limits of Government. Fried, who supports an end to sodomy laws and expresses considerable sympathy with same-sex couples, still thinks that marriage goes too far because of this idea of enforced approval.
What, precisely, is the argument here? Fried does not suggest that the recognition of same-sex marriage would violate the Free Exercise clause of the First Amendment—and that would be an implausible position to take. Presumably, the position is that the state has a legitimate interest in banning same-sex marriage on the grounds that it offends many religious believers.
This argument contains many difficulties. First, it raises an Establishment Clause problem: for, as we’ve seen, religions vary greatly in their attitude to same-sex marriage, and the state, following this argument, would be siding with one group of believers against another. More generally, there are a lot of things that a modern state does that people deeply dislike, often on religious grounds. Public education teaches things that many religious parents abhor (such as evolution and the equality of women) parents often choose home schooling for that reason. Public health regulations license butchers who cut up pigs for human consumption Jews don’t want to be associated with this practice. But nobody believes that Jews have a right to ask the state to impose their religiously grounded preference on all citizens. The Old Order Amish don’t want their children to attend public school past age fourteen, holding that such schooling is destructive of community. The state respects that choice—for Amish children and the state even allows Amish children to be exempt from some generally applicable laws for reasons of religion. But nobody would think that the Amish have a right to expect the state to make public schooling past age fourteen off-limits for all children. Part of life within a pluralistic society that values the non-establishment of religion is an attitude of live and let live. Whenever we see a nation that does allow the imposition of religiously grounded preferences on all citizens—as with some Israeli laws limiting activity on the Sabbath, and as with laws in India banning cow slaughter—we see a nation with a religious establishment, de jure or de facto. We have chosen not to take that route, and for good reasons. To the extent that we choose workdays and holidays that coincide with the preferences of a religious majority, we bend over backward to be sensitive to the difficulties this may create for minorities.
A fourth argument, again appealing to a legitimate public purpose, focuses on the difficulties that traditional marriage seems to be facing in our society. Pointing to rising divorce rates and evidence that children are being damaged by lack of parental support, people say that we need to defend traditional marriage, not undermine it by opening the institution to those who don’t have any concern for its traditional purposes. We could begin by contesting the characterization of same-sex couples. In large numbers, they do have and raise children. Marriage, for them as for others parents, provides a clear framework of entitlements and responsibilities, as well as security, legitimacy, and social standing for their children. In fact, the states that have legalized same-sex marriage, Massachusetts, Connecticut, Iowa, and Vermont, have among the lowest divorce rates in the nation, and the Massachusetts evidence shows that the rate has not risen as a result of the legalization. In the European countries that have legalized same-sex marriage, divorce rates appear to be roughly the same as among heterosexual couples.
We might also pause, for reasons I have already given, before granting that an increase in the divorce rate signals social degeneration. But let us concede, for the sake of argument, that there is a social problem. What, then, about the claim that legalizing same-sex marriage would undermine the effort to defend or protect traditional marriage? If society really wants to defend traditional marriage, as it surely is entitled to do and probably ought to do, many policies suggest themselves: family and medical leave drug and alcohol counseling on demand generous support for marital counseling and mental health treatment strengthening laws against domestic violence and enforcing them better employment counseling and financial support for those under stress during the present economic crisis and, of course, tighter enforcement of child-support laws. Such measures have a clear relationship to the stresses and strains facing traditional marriage. The prohibition of same-sex marriage does not. If we were to study heterosexual divorce, we would be unlikely to find even a single case in which the parties felt that their divorce was caused by the availability of marriage to same-sex couples.
The objector at this point typically makes a further move. The very recognition of same-sex marriage on a par with traditional marriage demeans traditional marriage, makes it less valuable. What’s being said, it seems, is something like this: if the Metropolitan Opera auditions started giving prizes to pop singers of the sort who sing on American Idol, this would contaminate the opera world. Similarly, including in the Hall of Fame baseball players who got their records by cheating on the drug rules would contaminate the Hall of Fame, cheapening the real achievements of others. In general, the promiscuous recognition of low-level or non-serious contenders for an honor sullies the honor. This, I believe, is the sort of argument people are making when they assert that recognition of same-sex marriage defiles traditional marriage, when they talk about a “defense of marriage,” and so forth. How should we evaluate this argument?
First of all, we may challenge it on the facts. Same-sex couples are not like B-grade singers or cheating athletes—or at least no more so than heterosexual couples. They want to get married for reasons very similar to those of heterosexuals: to express love and commitment, to gain religious sanctification for their union, to obtain a package of civil benefits—and, often, to have or raise children. Traditional marriage has its share of creeps, and there are same-sex creeps as well. But the existence of creeps among the heterosexuals has never stopped the state from marrying heterosexuals. Nor do people talk or think that way. I’ve never heard anyone say that the state’s willingness to marry Britney Spears or O. J. Simpson demeans or sullies their own marriage. But somehow, without even knowing anything about the character or intentions of the same-sex couple next door, they think their own marriages would be sullied by public recognition of that union.
If the proposal were to restrict marriage to worthy people who have passed a character test, it would at least be consistent, though few would support such an intrusive regime. What is clear is that those who make this argument don’t fret about the way in which unworthy or immoral heterosexuals could sully the institution of marriage or lower its value. Given that they don’t worry about this, and given that they don’t want to allow marriage for gays and lesbians who have proven their good character, it is difficult to take this argument at face value. The idea that same-sex unions will sully traditional marriage cannot be understood without moving to the terrain of disgust and contamination. The only distinction between unworthy heterosexuals and the class of gays and lesbians that can possibly explain the difference in people’s reaction is that the sex acts of the former do not disgust the majority, whereas the sex acts of the latter do. The thought must be that to associate traditional marriage with the sex acts of same-sex couples is to defile or contaminate it, in much the way that eating food served by a dalit, (formerly called “untouchable,”) used to be taken by many people in India to contaminate the high-caste body. Nothing short of a primitive idea of stigma and taint can explain the widespread feeling that same-sex marriage defiles or contaminates straight marriage, while the marriages of “immoral” and “sinful” heterosexuals do not do so.
If the arguer should reply that marriage between two people of the same sex cannot result in the procreation of children, and so must be a kind of sham marriage, which insults or parodies, and thus demeans, the real sort of marriage, we are back to the second argument. Those who insist so strongly on procreation do not feel sullied or demeaned or tainted by the presence next door of two opposite-sex seventy-year-olds newly married, nor by the presence of opposite-sex couples who publicly announce their intention never to have children—or, indeed, by opposite-sex couples who have adopted children. They do not try to get lawmakers to make such marriages illegal, and they neither say nor feel that such marriages are immoral or undermine their own. So the feeling of undermining, or demeaning, cannot honestly be explained by the point about children and must be explained instead by other, more subterranean, ideas.
If we’re looking for a historical parallel to the anxieties associated with same-sex marriage, we can find it in the history of views about miscegenation. At the time of Loving v. Virginia, in 1967, sixteen states both prohibited and punished marriages across racial lines. In Virginia, a typical example, such a marriage was a felony punishable by from one to five years in prison. Like same-sex marriages, cross-racial unions were opposed with a variety of arguments, both political and theological. In hindsight, however, we can see that disgust was at work. Indeed, it did not hide its hand: the idea of racial purity was proudly proclaimed (for example, in the Racial Integrity Act of 1924 in Virginia), and ideas of taint and contamination were ubiquitous. If white people felt disgusted and contaminated by the thought that a black person had drunk from the same public drinking fountain or swum in the same public swimming pool or used the same toilet or the same plates and glasses—all views widely held by southern whites—we can see that the thought of sex and marriage between black and white would have carried a powerful freight of revulsion. The Supreme Court concluded that such ideas of racial stigma were the only ideas that really supported those laws, whatever else was said: “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”
We should draw the same conclusion about the prohibition of same-sex marriage: irrational ideas of stigma and contamination, the sort of “animus” the Court recognized in Romer v. Evans, is a powerful force in its support. So thought the Supreme Court of Connecticut in October 2008, saying,
Beyond moral disapprobation, gay persons also face virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated…. Such visceral prejudice is reflected in the large number of hate crimes that are perpetrated against gay persons….The irrational nature of the prejudice directed at gay persons, who ‘‘are ridiculed, ostracized, despised, demonized and condemned “merely for being who they are” …is entirely different in kind than the prejudice suffered by other groups that previously have been denied suspect or quasi-suspect class status. This fact provides further reason to doubt that such prejudice soon can be eliminated and underscores the reality that gay persons face unique challenges to their political and social integration.
We have now seen the arguments against same-sex marriage. They do not seem impressive. We have not seen any that would supply government with a “compelling” state interest, and it seems likely, given Romer, that these arguments, motivated by animus, fail even the rational basis test.
The argument in favor of same-sex marriage is straightforward: if two people want to make a commitment of the marital sort, they should be permitted to do so, and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity.
What Is the “Right to Marry”?
IN OUR constitutional tradition, there is frequent talk of a “right to marry.” In Loving, the Court calls marriage “one of the basic civil rights of man.” A later case, Zablocki v. Redhail, recognizes the right to marry as a fundamental right for Fourteenth Amendment purposes, apparently under the Equal Protection clause the Court states that “the right to marry is of fundamental importance for all individuals” and continues with the observation that “the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.” Before courts can sort out the issue of same-sex marriage, they have to figure out two things: (1) what is this “right to marry”? and (2) who has it?
What does the “right to marry” mean? On a minimal understanding, it just means that if the state chooses to offer a particular package of expressive and/or civil benefits under the name “marriage,” it must make that package available to all who seek it without discrimination (though here “all” will require further interpretation). Loving concerned the exclusion of interracial couples from the institution Zablocki concerned the attempt of the state of Wisconsin to exclude from marriage parents who could not show that they had met their child support obligations. Another pertinent early case, Skinner v. Oklahoma, invalidated a law mandating the compulsory sterilization of the “habitual criminal,” saying that such a person, being cut off from “marriage and procreation,” would be “forever deprived of a basic liberty.” A more recent case, Turner v. Safley, invalidated a prohibition on marriages by prison inmates. All the major cases, then, turn on the denial to a particular group of people of an institutional package already available to others.
Is the right to marry, then, merely a non-discrimination right? If so, the state is not required to offer marriages at all. It’s only that once it does so, it must do so with an even hand. The talk of marriage as a “fundamental right,” together with the fact that most of these decisions mingle equal protection analysis with due process considerations, suggests, however, that something further is being said. What is it? Would it violate the Constitution if a state decided that it would offer only civil unions and drop the status of marriage, leaving that for religious and private bodies?
Put in terms of our three categories, then, does the “right to marry” obligate a state to offer a set of economic and civil benefits to married people? Does it obligate a state to confer dignity and status on certain unions by the use of the term “marriage”? And does it require the state to recognize or validate unions approved by religious bodies? Clearly, the answer to the third question is, and has always been, no. Many marriages that are approved by religious bodies are not approved by the state, as the case of same-sex marriage has long shown us, and nobody has thought it promising to contest these denials on constitutional grounds. The right to the free exercise of religion clearly does not require the state to approve all marriages a religious body approves. Nor does the “right to marry” obligate the state to offer any particular package of civil benefits to people who marry. This has been said repeatedly in cases dealing with the marriage right.
On the other side, however, it’s clear that the right in question is not simply a right to be treated like others, barring group-based discrimination. The right to marry is frequently classified with fundamental personal liberties protected by the Due Process clause of the Fourteenth Amendment. In Meyer v. Nebraska, for example, the Court says that the liberty protected by that Clause “without doubt…denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized…as essential to the orderly pursuit of happiness by free men.” Loving, similarly, states that “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state,” grounding this conclusion in the Due Process clause as well as the Equal Protection clause. Zablocki allows that “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed,” but concludes that the Wisconsin law goes too far, violating rights guaranteed by the Due Process clause. Turner v. Safley, similarly, determines that the restriction of prisoner marriages violates the Due Process clause’s privacy right.
What does due process liberty mean in this case? Most of the cases concern attempts by the state to forbid a class of marriages. That sort of state interference with marriage is, apparently, unconstitutional on due process as well as equal protection grounds. So, if a state forbade everyone to marry, that would presumably be unconstitutional.
Nowhere, however, has the Court held that a state must offer the expressive benefits of marriage. There would appear to be no constitutional barrier to the decision of a state to get out of the expressive game altogether, going over to a regime of civil unions or, even more extremely, to a regime of private contract for marriages, in which the state plays the same role it plays in any other contractual process.
Again, the issue turns on equality. What the cases consistently hold is that when the state does offer a status that has both civil benefits and expressive dignity, it must offer it with an even hand. This position, which I’ve called “minimal,” is not so minimal when one looks into it. Laws against miscegenation were in force in sixteen states at the time of Loving.
In other words, marriage is a fundamental liberty right of individuals, and because it is that, it also involves an equality dimension: groups of people cannot be fenced out of that fundamental right without some overwhelming reason. It’s like voting: there isn’t a constitutional right to vote, as such: some jobs can be filled by appointment. But the minute voting is offered, it is unconstitutional to fence out a group of people from the exercise of the right. At this point, then, the questions become, Who has this liberty/equality right to marry? And what reasons are strong enough to override it?
Who has the right? At one extreme, it seems clear that, under existing law, the state that offers marriage is not required to allow it to polygamous unions. Whatever one thinks about the moral issues involved in polygamy, our constitutional tradition has upheld a law making polygamy criminal, so it is clear, at present, that polygamous unions do not have equal recognition. (The legal arguments against polygamy, however, are extremely weak. The primary state interest that is strong enough to justify legal restriction is an interest in the equality of the sexes, which would not tell against a regime of sex-equal polygamy.)
Regulations on incestuous unions have also typically been thought to be reasonable exercises of state power, although, here again, the state interests have been defined very vaguely. The interest in preventing child abuse would justify a ban on most cases of parent-child incest, but it’s unclear that there is any strong state interest that should block adult brothers and sisters from marrying. (The health risk involved is no greater than in many cases where marriage is permitted.) Nonetheless, it’s clear that if a brother-sister couple challenged such a restriction today on due process/equal protection grounds, they would lose, because the state’s alleged (health) interest in forbidding such unions would prevail.
How should we think of these cases? Should we think that these individuals have a right to marry as they choose, but that the state has a countervailing interest that prevails? Or should we think that they don’t have the right at all, given the nature of their choices? I incline to the former view. On this view, the state has to show that the law forbidding such unions really is supported by a strong public interest.
At the other extreme, it is also clear that the liberty and equality rights involved in the right to marry do not belong only to the potentially procreative. Turner v. Safley concerned marriages between inmates, most serving long terms, and non-incarcerated people, marriages that could not be consummated. The case rested on the emotional support provided by marriage and its religious and spiritual significance. At one point the Court mentions, as an additional factor, that the inmate may some day be released, so that the marriage might be consummated, but that is clearly not the basis of the holding. Nor does any other case suggest that the elderly or the sterile do not have the right.
The best way of summarizing the tradition seems to be this: all adults have a right to choose whom to marry. They have this right because of the emotional and personal significance of marriage, as well as its procreative potential. This right is fundamental for Due Process purposes, and it also has an equality dimension. No group of people may be fenced out of this right without an exceedingly strong state justification. It would seem that the best way to think about the cases of incest and polygamy is that in these cases the state can meet its burden, by showing that policy considerations outweigh the individual’s right, although it is not impossible to imagine that these judgments might change over time.
WHAT, THEN, of people who seek to marry someone of the same sex? This is the question with which courts are currently wrestling. Recent state court decisions had to answer four questions (using not only federal constitutional law but also the text and tradition of their own state constitutions): First, will civil unions suffice, or is the status of marriage constitutionally compelled? Second, is this issue one of due process or equal protection or a complex mixture of both? Third, in assessing the putative right against the countervailing claims of state interest, is sexual orientation a suspect classification for equal protection purposes? In other words, does the state forbidding such unions have to show a mere rational basis for the law or a “compelling” state interest? Fourth, what interests might so qualify?
Three states that have recently confronted this question—Massachusetts, California, and Connecticut—give different answers to these questions, but there is a large measure of agreement. All agree that, as currently practiced, marriage is a status with a strong component of public dignity. Because of that unique status, it is fundamental to individual self-definition, autonomy, and the pursuit of happiness. The right to marry does not belong only to the potentially procreative. (The Massachusetts court notes, for example, that people who cannot stir from their deathbed are still permitted to marry.)
For all these expressive reasons, it seems that civil unions are a kind of second-class status, lacking the affirmation and recognition characteristic of marriage. As the California court put it, the right is not a right to a particular word, it is the right “to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families.” All three courts draw on the miscegenation cases to make this point. The California court notes that if states opposed to miscegenation had created a separate category called “transracial union,” while still denying interracial couples the status of “marriage,” we would easily see that this was no solution.
All three courts invoke both due process and equal protection. The Massachusetts court notes that the two guarantees frequently “overlap, as they do here.” They all agree that the right to marry is an individual liberty right that also involves an equality component: a group of people can’t be fenced out of that right without a very strong governmental justification.
How strong? Here the states diverge. The Massachusetts court held that the denial of same-sex marriages fails to pass even the rational basis test. The California and Connecticut courts, by contrast, held that sexual orientation is a suspect classification, analogizing sexual orientation to gender.
What state interests lie on the other side? The California and Connecticut opinions examine carefully the main contenders, concluding that none rises to the level of a compelling interest. Preserving tradition all by itself cannot be such an interest: “the justification of ‘tradition’ does not explain the classification, it just repeats it.” Nor can discrimination be justified simply on the grounds that legislators have strong convictions. None of the other preferred policy considerations (the familiar ones we have already identified) stands up as sufficiently strong.
These opinions will not convince everyone. Nor will all who like their conclusion, or even their reasoning, agree that it’s good for courts to handle this issue, rather than democratic majorities. But the opinions, I believe, should convince a reasonable person that constitutional law, and therefore courts, have a legitimate role to play in this divisive area, at least sometimes, standing up for minorities who are at risk in the majoritarian political process.
WHAT OUGHT we to hope and work for, as a just future for families in our society? Should government continue to marry people at all? Should it drop the expressive dimension and simply offer civil-union packages? Should it back away from package deals entirely, in favor of a regime of disaggregated benefits and private contract? Such questions, the penumbra of any constitutional debate, require us to identify the vital rights and interests that need state protection and to think how to protect them without impermissibly infringing either equality or individual liberty. Our analysis of the constitutional issues does not dictate specific answers to these questions, but it does constrain the options we ought to consider.
The future of marriage looks, in one way, a lot like its past. People will continue to unite, form families, have children, and, sometimes, split up. What the Constitution dictates, however, is that whatever the state decides to do in this area will be done on a basis of equality. Government cannot exclude any group of citizens from the civil benefits or the expressive dignities of marriage without a compelling public interest. The full inclusion of same-sex couples is in one sense a large change, just as official recognition of interracial marriage was a large change, and just as the full inclusion of women and African Americans as voters and citizens was a large change. On the other hand, those changes are best seen as a true realization of the promise contained in our constitutional guarantees. We should view this change in the same way. The politics of humanity asks us to stop viewing same-sex marriage as a source of taint or defilement to traditional marriage but, instead, to understand the human purposes of those who seek marriage and the similarity of what they seek to that which straight people seek. When we think this way, the issue ought to look like the miscegenation issue: as an exclusion we can no longer tolerate in a society pursuing equal respect and justice for all.
Martha Nussbaum is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, appointed in Law, Philosophy, and Divinity. This essay is adapted from her From Disgust to Humanity: Sexual Orientation and the Constitution, which will be published by Oxford University Press in February 2010.
Read Martha Ackelsberg, Stephanie Coontz, and Katha Pollitt’s online responses to “A Right to Marry?”
Works consulted for this essay include:
Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000).
Charles Fried, Modern Liberty: and the Limits of Government (New York: W.W. Norton, 2006).
Hendrik Hartog, Man and Wife in America: A History (Harvard University Press, 2000).
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006).
Cass R. Sunstein, “The Right to Marry,” Cardozo Law Review 26 (2005), 2081-2120.
Susan Treggiari, Roman Marriage (Oxford University Press, 1991).
Craig Williams, Roman Homosexuality (Oxford University Press, 1999). Updated edition forthcoming, 2009.
ED. NOTE: This article was written before the California court ruling on Proposition 8 or the proposed vote in the New York State legislature.
“The bedrock of our society”
Women and Equalities Minister, Maria Miller said:
Marriage is the bedrock of our society and now irrespective of sexuality everyone in British society can make that commitment. It is a wonderful achievement and whilst this legislation may be about marriage, its impact is so much wider. Making marriage available to all couples demonstrates our society’s respect for all individuals regardless of their sexuality. It demonstrates the importance we attach to being able to live freely. It says so much about the society that we are and the society that we want to live in.
This is a historic moment that will resonate in many people’s lives. I am proud that we have made it happen, and I look forward to the first same sex wedding by next summer.
The possibility of power of prayer
'I do believe in the concept of flirt to convert! Statistically, the ratio of single Christian men to single Christian women is in the favour of the men, certainly in London, which does not give us girls much choice. I am strong enough in my own faith to deal with being married to someone who isn't a Christian when I meet them, but I also believe in the power of prayer and there are probably many guys out there who could be saved, if only someone would take the time to pray for them. I would have the faith that that person would come to Christ but peace if they didn't.'
In total, 2,520 people answered the question: Could there be any circumstances in which you would marry a non-Christian? Of these, 436 provided additional comments, which we read.
We analysed in detail 200 comments, in which most people primarily explained the answers they had given. The types of comment were in proportion to the percentages in the graph above.
Some (6 people) didn't answer the question but still made comments. A few said that the lack of men in church might be God's plan.
One other questioned that anyone could make the division into 'Christian' and 'non-Christian'.
'I wish the church would stop lumping Christians and non-Christians into those two categories. Each is a person who may or may not be openly sympathetic to faith. Drawing lines to create an 'us and them' is ridiculous and unhelpful in terms of all of us journeying with God. Each relationship needs to be analysed by those involved and supported by the church. Churches tend to 'drop' people who don't play by the 'rules'. How many more people would come to faith if church took befriending non-Christians in the dating world seriously. There are more dynamic ways to think and support the individuals and where they are in their faith.'