Why Oklahoma's House Bill 1125 should make everyone happy (or equally mad)

For the first time, the Modern Medievalist daintily dips his toes into the shark-infested waters of our so-called culture wars and its eye of the storm: contemporary marriage politics. A few of you may know that the Oklahoma State House of Representatives recently passed a bill that, if approved by its Senate, would abolish marriage licenses issued by the state. The bill's author, Rep. Todd Russ, explains its intent:

"The point of my legislation is to take the state out of the process and leave marriage in the hands of the clergy. Marriage was historically a religious covenant first and a government-recognized contract second. Under my bill, the state is not allowing or disallowing same-sex marriage. It is simply leaving it up to the clergy."

This is a surprising, positive development for this country, and a position I've advocated long before this blog ever came into being. Now, since Mr. Russ is also an ordained Assemblies of God minister, this might come off as shameless self-promotion of the clerical caste. And, no doubt, those of you dear readers who are of a more progressive bent are no doubt turning red at the cheeks and are itching to bang out an angry comment at what you might (with reason) interpret to be another red state angrily picking up all its marbles and going home because the gays are taking over. Before you do that, hear me out here. I'll make a general sketch and then address details and objections in a Q&A format.

A select history of marriage laws

[As I'm writing this mostly from memory, please pardon the lack of citations.]

Nicolas Poussin's Abduction of the Sabine Women, now at the Met

Whether or not you agree with Mr. Russ that marriage was instituted by God in the time of man's innocency in the Garden, we can all agree that government regulation of marriage as we know it is a relatively new phenomenon. Before anyone jumps in to say that Russ is spouting a Christian fiction that's obviously untrue by citing the existence of marriage laws in ancient Greece and Rome, I'd first quip that a civilization whose first defining act of marriage is immortalized in art as "the rape of the Sabine women" is hardly a source of inspiration for the 21st century citizen. But yes, certainly, marriage laws existed aplenty in the order-obsessed world of pre-Christian Rome. To give himself legitimacy and continuity with the old Republic by appealing to old-fashioned values, Emperor Ocavian Augustus issued many laws to promote marriage in the senatorial class, promote childbearing to "keep Italy Italian", and punish adultery. There were certainly laws governing inheritance and property rights of spouses. Nonetheless, the average Roman pleb had little need for the courts because he had little property to speak of, and what issues did come up were settled at the community level. And, while many pious couples surely sought the blessing of the gods at the local temple, most weddings were of the "common law" variety:

-abductio, or marriage by abduction, as was sadly quite normal in the ancient world. This was Romulus's mythic solution to the whole "lack of women" problem as described in Livy's Ab Urbe Condita;

-manus, the typical respectable kind of marriage by which the patriarch of one family gave the bride's hand to the hand of the groom (in manum);

-usus, a marriage which was recognized merely by a man and woman living together for a year.

-contuberium, a marriage between slaves.

All examples above were deemed legal, yet without the involvement of either priest or magistrate. And so these "common law" marriages persisted well into the Christian age in the west. Today, we are irrevocably conditioned to the idea that marriage means exchanging vows before a churchman or, his more modern counterpart, the judge (though the fact that the black robe is directly descended from the priest's cassock should tell us something about our society's values). A man and a woman who say they're married "because we said so" just doesn't feel quite as real as a couple bearing the civil license. The same goes for a man and a man, a woman and a woman, or a man and two women. This is why the LGBT crusade for marriage equality isn't really about such unsexy matters as inheritance, property rights, and employment benefits. It's about the validation from state and society that comes with the civil license: that their marriage is just as real in every sense as hetero-monogamous marriage. It's the same reason why social conservatives oppose it just as much: they, more than liberals ever will, would defend to the death one's right to distribute one's property however they like. They just seem to think that if the state calls it marriage, they must call it that too.

What neither camp realizes is that the Catholic Church has become, in a sense, a victim of her own success. After the collapse of ancient Rome, the Church's canon law tribunals were the only institutions left to adjudicate on any legal issues that arose regarding marriage. And, just as they are today, canon lawyers then were swamped with cases surrounding annulments: whether or not a marriage was validly contracted. Today's canon lawyers have it pretty cut and dried because the Council of Trent (1545-1563) decreed that henceforth, no marriage between Catholics would even be considered valid unless performed in the presence of a priest with proper jurisdiction, and two witnesses:

"Those who shall attempt to contract marriage otherwise than in the presence of the parish priest, or of some other priest by permission of the said parish priest, or of the Ordinary, and in the presence of two or three witnesses; the holy Synod renders such wholly incapable of thus contracting and declares such contracts invalid and null, as by the present decree It invalidates and annuls them. Moreover It enjoins, that the parish priest, or any other priest, who shall have been present at any such contract with a less number of witnesses (than as aforesaid); as also the witnesses who have been present thereat without the parish priest, or some other priest; and also the contracting parties themselves; shall be severely punished, at the discretion of the Ordinary." (Session 24, Decree on the Reformation of Matrimony)

The Council of Trent

Trent carefully defined marriage and decreed an overhaul of the canons regarding how to contract it for two reasons: first, because the Protestant reformers had begun to deny that marriage was a sacrament, with some going so far as to insist it was a civil institution only. Second, because Catholics didn't strictly need a priest or two witnesses before the Council in order to be validly married in the eyes of the Church, a little fact which caused a lot of headaches for canon lawyers. From Roman times until the Reformation, clandestine and common law marriages were still widespread, despite repeated bans and penalties from the Fourth Lateran Council of 1215 onward. Lateran IV's canon 51 went so far as to declare that children born from clandestine marriages would be considered illegitimate, and that a pastor who allows such unions to take place in his parish would be suspended for three years. Note, however, that the canon did not go so far as to say the

marriage was invalid.

It's likely that church authorities had difficulty enforcing these prohibitions because such forbidden unions were so widespread. The most explosive clandestine marriage case of the Middle Ages (or the Renaissance, if you prefer) was probably the affair of two soured lovers, Giovanni della Casa and Lusanna di Benedetto, in Florence. In 1455, Lusanna, a middle-class woman, sued Giovanni, youngest son of a wealthy merchant family, for bigamy; that is, for publicly marrying (or attempting to marry, as you like) another woman while he was still wed to Lusanna. The problem was that Lusanna's marriage was of the clandestine sort. According to her testimony, the two had made marital vows to each other two years before in the privacy of her bedroom, before two witnesses. Assuming this truly happened, it's likely that Giovanni persuaded Lusanna toward the secret marriage because of the shame it would bring to his family if he were to publicly acknowledge marrying

a woman of a lower class. Indeed, that was his primary defense when he later denied having done any such thing; that marrying Lusanna would have been as unthinkable as marrying a prostitute.

Saint Antoninus

The case of Giovanni and Lusanna is all but forgotten today, but it was the OJ Simpson trial of the 15th century because Lusanna had an unlikely friend in a high place: Antoninus (later Saint Antoninus), archbishop of Florence. Giovanni's family attempted to bribe the archbishop into throwing the case out, just as they had likely bribed the witnesses at the secret wedding into denial. But Antoninus was incorruptible and took to Lusanna's defense with remarkable vigor, considering that her humble origins and her admittance to having a twelve-year long affair with Giovanni while her previous husband was still alive. When Florence's first family, the Medicis, fell on the side of Giovanni, Archbishop Antoninus practically declared war on the entire aristocracy of the city, going so far as to excommunicate the podesta. Armed scuffles ensued between city and church guards. The matter was only settled when Cosimo de Medici worked around the archbishop by appealing to Pope Calixtus III, who declared the supposed marriage between Giovanni and Lusanna null and void.

That's the highly condensed version of the story, at any rate. For the in-depth treatment (which I assure you is thoroughly interesting, if you're a history fan), see Gene Brucker's 'Giovanni and Lusanna: Love and Marriage in Renaissance Florence'. Why did I bring up the story of two obscure Florentines in today's post, though? To illustrate the idea that, as late as 1455, it was still accepted by Church authorities that one could have a perfectly valid marriage (no matter how illicit or shameful) merely by making vows: "I take you as my wife" and "I take you as my husband". It was not until Trent that a priest was absolutely required in the Catholic world for marriages to be valid, and even then, it took up to two centuries for all the nations of Catholic Europe to fully implement the decrees.

The dawn of civil marriage

Philip Yorke, 1st Earl of Hardwicke and lord chancellor

So much for the Catholic world. What of Protestant England, whence we derive our American laws? The Church of England continued to be the sole body governing marriage law in that realm until 1753. In order to curb ever-growing cases of questionable clandestine marriages, Lord Hardwicke's Act required that all marriages in England take place in an official ceremony presided by an Anglican minister in order to be valid. Couples who didn't adhere to the traditional banns of marriage had to first acquire a state license before proceeding with a ceremony. The law granted exceptions for Quakers and Jews, but not for Catholics or other nonconformist Protestants! Anglican clerics who didn't comply with the law could face deportation to the American colonies for fourteen years. The threat of America scared the entire Church of England into strict compliance in short order. Lord Hardwicke's Act was the first step toward civil interference in marriage laws, culminating at last with the Marriage Act of 1836, which allowed couples to have secular weddings at a registrar's office.

America's history of civil marriage is much harder to describe because each state has its own peculiar storyline. For example, Louisiana, as a former French possession, inherited its marriage laws from Trent and, thus, never recognized common law marriages. In general, though, clandestine and common law marriages during the colonial period were far more prevalent than in the mother country. Since the Church of England had a far weaker hold in the colonies than it did at home, most colonial governments authorized secular magistrates to officiate weddings (according to the rules of the Anglican Church) as a concession to the lack of ministers out in the hinterlands. North Carolina preceded England by issuing government marriage licenses in 1741. State laws surrounding marriage grew ever since, especially whenever a particularly odious form of the union came about that legislators felt called to suppress; namely, interracial marriages and polygamous unions from the Mormons out west. Still, common law marriages persisted on, and in 1877, the U.S. Supreme Court even declared in Meister vs Moore that (as the name suggests) common law marriages are a part of the common law, and therefore, are not illegal unless a state has explicitly made it illegal by statute.

The Modern Medievalist's Solution

Just last month, a Texas state court ordered a clerk in Travis County to issue a civil marriage license to a lesbian couple. Subsequently, a Texas probate judge ruled that the state's ban on same-sex marriage was unconstitutional. I emphasize that this is Texas, a state which prides itself on its reputation as the most "conservative" state in the Union. That might be up for debate, but it's certainly true that Texas has a disproportionately high influence in national politics. As Texas goes, so does the rest of the country. I would bet real money that, one way or another, within the next ten years following this post, same-sex marriage will be a completely legal and uncontested institution in every county of the state... and that's not much of a bet at all. While it's true that the millennial generation is more conservative on average than their parents' in several key respects (it might be the generation that overturns Roe vs Wade, for instance), the overwhelming majority of my peers are in favor of same-sex marriage. And, even for the few who oppose it on moral grounds, they have no argument against it from a legal perspective. They're finding it difficult to defend a constitutional ban on same-sex marriage from a purely secular standpoint while acceptance of the idea grows every year. Even big businesses, widely perceived to be a stronghold of right-wing policy, are eager to be seen on the right side of history by endorsing same-sex marriage. The war to protect the traditional definition in law was lost before it began, and all that's left is for social conservatives to bow out of the political arena on this matter gracefully.

At this point, I invite people on both sides of the issue to ask themselves: should you really need the state's permission to get married, anyway? The social conservative would probably say, "no, marriage is of God, not man". The LGBT rights activist would say, "no, marriage is about love, no matter what the government says." And here, we can find some common ground. After all, it was the Church alone; not the Enlightenment philosophers, and certainly not the ancients; that gave us the idea that marriage is a union of love based on mutual consent. You now need to go to the third world to find any sizable number of people who disagree with that one.

Therefore, I suggest that Oklahoma's House Bill 1125, while certainly not perfect, is a step in the right direction. By taking the state out of the marriage question (as much as possible), most critically by abolishing the idea of the civil license to wed, we may at once claim to be looking to the past; returning to an earlier framework of marriage from the Middle Ages and beyond, whereby the state was uninvolved in the defining of marriage... and the future, where people in a pluralist society can define what marriage means for themselves, and within their own communities, without needing the approval of fallible entity.

Q. What would Oklahoma's bill actually do?

A. HB 1125 would change state law so that country clerks would no longer grant a marriage license in advance of getting married. As in (I believe) all states in the Union, even if you get married in a house of worship in Oklahoma, you must first get a license at the county courthouse before the ceremony takes place if you want it to be deemed legal by the state. Most churches and other religious communities also require you to bring your marriage license with you to the altar as a matter of practical policy. What this bill would do is abolish that step, meaning you would no longer have to seek the state's approval before getting married in the first place. The county clerk instead would merely record your marriage in a certificate after the fact.

Q. Why is this a big deal if the state is still involved in the process?

A. It's a subtle change, sure, but an important one from a philosophical point of view. By removing the requirement; indeed, even the possibility; of getting a "license to wed" from the state, Oklahoma acknowledges that the state has no right to define marriage, or to permit or prohibit what sorts of marriages take place. (Sort of. Caveats to be addressed in a moment.) The state's role would be passive: to merely record what you did, for legal purposes.

Q. Isn't same-sex marriage currently illegal in Oklahoma?

A. An amendment to Oklahoma's constitution currently bans the legality of same-sex marriage, yes. It will almost surely be struck down by the Supreme Court, however. If and/or when it does, Oklahoma's bill will not prohibit same-sex marriages in any way. Indeed, the bill's author, Rep. Russ, has said he's confused by the objectors to his bill, since it does, in fact, effectively signal the legalization of same-sex marriage. If a man and a man, or a woman and a woman, file a marriage at the county clerk's office, all the clerk does is record what took place. An editorial piece on Reason.com, a site this blog has little common ground with other than that we both write in English, has a fitting, if not entirely accurate headline: "Oklahoma Bill Would Legalize Gay Marriage; This Apparently Bothers Democrats and Gays."

Q. Wouldn't this also pave the way for polygamy, incest, and underage marriage?

A. Quite possibly, yes. There are other statutes in Oklahoma law that forbid these unions, but if future civil rights movements cause these to be repealed, then nothing else would stand in the way of their taking place. Even social liberals might find them repugnant today, but such is the price of (for leftists) a pluralist, inclusive society; or (for rightists) the privatization of marriage.

Q. At the beginning of your post, it says only clergy can officiate weddings. What about secularists or people belonging to faiths without clergy?

A. The bill has subsequently been amended to fix sloppy language. A couple can still wed before a justice of the peace, though I believe (but am not sure as yet) that a judge has no legal obligation to officiate them. Most importantly, citizens can simply file an affidavit of common law marriage, which eliminates the need for a judge, clergyman, any other officiant whatsoever, or even a ceremony. For legal purposes, the common law marriage is of equal status in every way to marriages officiated by clergymen or secular magistrates.

Q. Are you advocating a religious change to marriage laws?

A. None whatsoever. It's precisely the point that religious bodies not feel beholden in any way to state definitions. As a Catholic Christian, even as a medievalist, I acknowledge that the Council of Trent's late requirement of a priest (or, in current canon law, a deacon) for a marriage between two Catholics to be valid is for the best. Plus, requiring a priest to officiate weddings was a good move from an ecumenical point of view since the Eastern Orthodox Church also considers it necessary. I only point out that, for most of western Christian history, a priest was not considered strictly necessary for a marriage to be valid, and that for non-Catholics, this continues to be true.

Q. I'm a liberal/conservative, and this is an outrageous proposal. I'm not reading your blog anymore!

A. That's not a question, but as the left/right-wing dichotomy is mostly an invention of the French Revolution and its national assembly, there's no place for it among modern medievalists. Your emotional outburst is excused.