Word Nerd: The Definition of Marriage
3 years ago
“Marriage is defined as the union of one man and one woman.”
Good morning nerds!
So here’s another slightly political one. With Australia’s incredibly tight federal election results still coming through and the issue of marriage equality very much on the country’s minds, and after UK Prime Ministerial candidate Andrea Leadsom’s rather confusing defence of her anti-marriage equality stance, I thought it would be a good time to tackle one of the strangest and most persistent arguments offered by opponents of reform (and one that is entirely pertinent to this blog): that the definition of the word itself somehow forbids it.
The Ol’ Definition-of-Marriage Gambit
On the face of it, it seems like circular reasoning: that you can’t change the law to allow same-sex couples to marry, because the law currently says same-sex couples can’t marry.* What’s this obsession over the “definition” of marriage? Aren’t you just telling us what the law says? If that’s really the case, just change it!
Ah, but there’s the rub.
You see, this move comes at the end of a now decades-long public debate. Once, people spoke of sin, of morality, of standards, but those are private questions† and not a matter of law. They spoke of the purpose of marriage – of sex, childbirth, the family – but we allow the impotent and infertile to marry without question, so that doesn’t hold water either. They flailed at appeals to propriety, speculated at the longevity of same-sex relationships, warned of the social harms of “lifestyles,” spoke of examples to others; they claimed it was extending an unfair privilege to an unrepresentative minority.‡ Finally they were told, “Look: ultimately, it doesn’t affect you. Your own marriages are just as heterosexual as they’ve ever been. There’s no real reason you should have a say.”
“Ah,” comes the reply, “but it does affect us!” Because, you see, the traditional composition of a marriage – one man and one woman – isn’t just a limitation or constraint on the union, but part of what defines it; and altering that definition will necessarily, retroactively change the character of the institution others have already entered into, without their consent or approval.** The marriage they entered into, they argue, is an institution created to nurture families and build communities (even if not every marriage leads to a family), and to replace it with a mere protestation of love or a legal convenience is to take that away from them.
Of course, there are any number of ways a same-sex couple might become parents, and they can build communities as much as anyone else; marriage for love or to manage property has been the rule rather than the exception for much of history; and at any rate, why any given couple gets married doesn’t really have any bearing (the law just doesn’t work like that). But that’s the argument, in a nutshell: marriage has a clear legal definition that includes its composition, that definition supposedly has a moral and social purpose, and so changing the definition undermines the purpose, changing the institution to the harm of all those already married.
Or this argument, which, I guess, is that gay couples have an unfair weight advantage?
So is there any justification in that? Is the composition of a marriage truly part of its definition? Where did the oft-quoted phrase “marriage is defined as the union of one man and one woman” actually come from, and on what basis is it held to be absolute and binding?
Well, let’s see.
The Hunt for Biblical Precedent
So a lot of people seem to think it came from the Bible (or from God himself, although I’m taking that as meaning “it’s in the Bible” and not that they receive direct information from the Almighty¶). But the phrase doesn’t appear anywhere in the Good Book; in fact, there’s no obvious attempt to define the word at all. It offers plenty of rules for marriage – on the bride’s father’s authority; on dowries, bride prices and purification rites; on interracial marriage, or marriage between gentiles and Jews§; on whether Christians remain married in the afterlife – but never actually defines marriage.†† The Bible, when all’s said and done, is a scripture, not a dictionary, and it assumes you already know what these things are.
Because to the audience it was written for, marriage was ubiquitous, and ancient. Every culture in the world has a tradition of marriage. In every history, kings marry queens, and in every mythology, the gods themselves wed (and commit adultery!). Hammurabi’s famous law code – the oldest known, dating to around a thousand years before the oldest passages in the Bible – covers divorce law. We’ll never know how old marriage is, as an institution; hell, Neanderthal “Venus figurines” are assumed to have played a role in a fertility rite, which (reaching slightly, here) potentially dates some form of marriage to the beginnings of humanity. It seems like nobody’s ever needed to define it, because it’s always existed.
That said, the Bible does a nice line in providing examples of approved marriages, including one man and one woman (various); one man, one woman and the woman’s slave (Abraham, Sarah and Hagar); one man, one woman and the woman’s sister (Jacob, Rachael and Leah); one man, seven hundred women and three hundred concubines (Solomon); one man and his dead brother’s widow (Levirate law); and, rather unfortunately, one rapist and his victim, or one soldier and his prisoner (laws in Deuteronomy). As Biblical scholar Robert R. Cargill wrote in the Des Moines Register in 2013, anyone who argues that “the Bible speaks plainly on one issue, especially something as complicated as marriage... haven’t taken the time to read all of it.”
Pictured: Biblical marriage.
But let’s move on. We’ve a phrase to hunt.
So if marriage isn’t defined in the Bible – if the Bible assumed, even three thousand years ago, that people already knew what the word meant – maybe it’s to language we need to turn? Specifically, to dictionaries? I mean, obviously, “You can’t change the law, it’s in the dictionary” isn’t a compelling argument (although with the growing trend towards “plain language” rulings, court justices are increasingly turning to dictionaries to interpret the law), but it might be a clue where the argument came from, at the very least; and may even uncover the phrase itself.
Here we seem to be making progress. The Oxford English Dictionary defines marriage as a “formal union of a man and a woman, typically as recognised by law, by which they become husband and wife” (although they’re due to change it to reflect current usage). Webster goes with “the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law” (and they added same-sex unions in 2003). A great many other dictionaries, legal and common, do the same.
Still, are these useful definitions? Saying that marriage is how you become a spouse is more or less a tautology (helpfully, husband and wife are defined as “a married man/woman”). Saying that a marriage is a “union” is unhelpfully vague. What sort of union are we talking about? If pressed, most people would come up with something like “a formal agreement to be romantically and sexually exclusive,” also mentioning shared property and responsibility and an expectation of moral and emotional support. Not every marriage exactly meets these criteria, but they’re more or less the expectation, and even have some weight in law; so why do the dictionaries overlook them?
Well... it’s gonna be down to Samuel Johnson, really, isn’t it? His dictionary was the foundation on which other dictionaries were built; the Oxford English Dictionary cribs from him so often he gets his own notation, “J.” Many of the oddities of our language today begin with him. Johnson’s definition? “The act of uniting a man and woman for life,” which Webster actually copied word for word in his first edition. So I guess the question is, why didn’t Johnson mention intimacy, or romance?
You might get a hint from his definition of sex, which covers gender classification but not any other use. Or intercourse, which is missing altogether. Copulate is defined as “to link together,” and copulation, reluctantly, as “the congress of the sexes” (and congress as “a meeting”). Clearly, Johnson wasn’t going near it with a barge pole. “Uniting a man and woman for life” was about the strongest euphemism he was willing to use for what marriage actually was; he was pointing out that... “you know... a man and a woman...? ‘United’? Do I have to draw you a picture?”
Hey, he doesn’t have “euphemism” either! Why, that no-good –
In the end, the composition of a marriage alone can’t be a useful definition; “a contractual relationship between a man and a woman” perfectly describes co-owning a sandwich bar (assuming the co-owners are a man and a woman). The nature of the relationship is crucial to understanding. Eccentric as he certainly was, Emperor Nero’s two marriages to men didn’t pose his contemporaries any vocabulary difficulties. They might not have approved of it, but they certainly knew what he meant when he said he and his husband were married. And that was nearly two thousand years ago.
So, the traditionalists can have the dictionaries, but only, I suspect, because a rather prudish eighteenth-century academic wasn’t sure how to explain Mummy and Daddy’s “special hug.”
Legislating My Way Into Your Heart
So let’s turn to the law! After all, it’s a law we’re talking about changing.
On the face of it, we’re on promising ground. The United States’ Defense of Marriage Act very clearly stated that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” Australia’s own Marriage Act insists that “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” Done and done, right? Ancient, irrefutable legal covenants.
Except that, of course, DOMA was passed in 1996, and the relevant passage in the Australian act was only added in 2004. Oddly, there were no laws banning same-sex marriage in either country, or indeed in much of the world, until fairly recently. There were no written laws defining marriage either, for that matter. Much like the Bible, legislation has generally concerned itself with how one is married – by whom, under what circumstances, what the ceremony entails – and keeping a thorough administrative trail. Lawmakers assumed people more or less knew what a marriage was without their help; or else trusted them to have and live by their own definitions without interference.
The first significant test case in the US was Baker v. Nelson, in 1971, when a gay couple applied for a marriage certificate that the law did not formally forbid them and were refused. A suit and appeal followed, and the Minnesota Supreme Court ruled not that same-sex marriage was illegal – which it wasn’t – but that denying them the certificate was not unconstitutional. So it wasn’t illegal for them to marry, but it also wasn’t illegal for people to say they couldn’t. Hardly conclusive.
At any rate, clearly, our search continues.
Just in Case (Law)
Because if it’s not in the Bible, and it’s not on the law books, and the dictionary definitions probably come from a rather prurient euphemism by the good Dr. Johnson (and in any case dictionaries aren’t laws), where does it come from? Like me, you’ve almost certainly attended a civil wedding where the registrar said, “the law defines a marriage as a union between one man and one woman,” and before the new laws were passed to boot. So if there was no such law, why did they say it? God damn it, Dave, where does this phrase come from?
Turns out, the one place we haven’t looked yet: case law.
Case law, or precedent, is the body of former decisions that a justice may consult and use as a guideline when interpreting the law. In many ways, it’s the better half of the law, where the rough work of legislation is tested and refined, producing laws that are practical, robust, consistent and fair. And a good precedent can have enormous reach; justices have been known to look across the seas, where different countries have the same (or very similar) laws and clear, worthy precedents have been set.
And then sometimes judges get totally quoted out of context, accidentally creating an utterly arbitrary precedent that basically gets quoted in every English-language court in the world for a century and a half. Welcome to Hyde v. Hyde, 1866.
So, the backstory: John Hyde was an Englishman who in 1850, having converted to the Church of the Latter-Day Saints and been ordained as a minister, met a young Mormon woman called Lavinia Hawkins, went with her to Salt Lake City and was married there. He later left the community, started preaching against the Mormon faith and was understandably excommunicated, whereupon Lavinia Hyde was told she was free to marry again (and promptly did). On his return to England, Hyde was apparently concerned as to whether his marriage was still in place or not (presumably hoping himself to remarry), and so applied to divorce her on grounds of adultery. With me so far?
Justice Lord Penzance’s ruling was utterly extraordinary. Hyde’s petition was denied, but not because he didn’t have sufficient cause. The judge insisted that Hyde had never been married in the eyes of the English court system. Since the Mormons at the time still practised polygamy, he reasoned, their marriages couldn’t be considered true marriages. You might point out – and Hyde’s lawyer certainly did – that the Hydes hadn’t had a plural marriage; but no, said Penzance, since some of the marriages the LDS conducted were group marriages, none of their marriages were legitimate. “I conceive that marriage,” he said, “as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others,” and if a church didn’t recognise that definition, the marriages they conducted weren’t real. And at that moment he made legal history.
It’s an odd foundation for a global legal institution, to be sure. For starters, the statement was obiter dicta – an informal commentary rather a formal ruling – and should never have been treated as precedential. Second, it was a fairly minor ruling by a normal court (the English Court of Probate and Divorce, a “superior” court, which could at the time be appealed at the Court of Exchequer Chamber); it’s unclear why it should hold particular weight in the UK, much less across the whole world. Third and most importantly, because it clearly has nothing to do with same-sex marriage. “For this purpose,” he said, very specifically, before launching into a long speech lovingly describing the polygamous practices of savage Middle-Eastern cultures. Hell, earlier in the same hearing, he called marriage “the union of two people who promise to go through life alone with one another.” Why the hell couldn’t we have kept using that definition forever?
In earnest, would Penzance approve of same-sex marriage? I doubt it. But this ruling – an informal comment from a 150-year-old divorce proceedings, hinging on whether a marriage in a culture that permits polygamy is binding in a country that doesn’t – really has no bearing on it at all... ‡‡
...and is exactly where the “definition of marriage” argument comes from.
*And, well, obviously; that’s why we want to change it.
†And sort of shitty ones at that.
‡Seriously. I remember a dude explaining to me that really the marriage laws weren’t discriminatory, because a gay man had exactly the same right to marry a woman that a straight man had. I pointed out that, of course, after the law changed, he’d have exactly the same right to marry a man that a gay man would. He didn’t reply, which I thought was slightly disappointing.
**I suppose the obvious compromise – a one-time, no-questions-asked annulment ab initio for all heterosexual married couples who no longer wish to be implicated in the institution – isn’t quite what they have in mind.
¶I’m not ruling that out, mind. Bachmann seems like the type.
§Both forbidden, natch.
††This shouldn’t come as a surprise; it doesn’t define priest either, or temple, or jawbone of an ass. Hell, it only very broadly defines God.
‡‡To be honest, I don’t have that much of a problem with polygamy, either.