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Legal Esoterica
Gary A. Weissman
February 20, 2004



By tacit agreement, the draining of the first glass of wine was the signal to begin their political discussion. Laura Liberal and Norman Neocon had maintained a two-year-old tradition of a Wednesday evening dinner date/ political discussion.

This evening only a modicum of chit-chat preceded the first volley: Laura, impatient to fire a shot across what she knew was Norman’s starboard-leaning bow, wolfed down her wine and conspicuously placed the empty glass in the middle of the table.

"So, Norman," she began, "how do Minnesota states-rightsers, anxious to give full faith and credit to the public acts of every other state,1deal with same-sex immigrants from Vermont whose civil unions were lawfully approved in that state?"

"They may have civil unions, but they’re not married," Norman sniffed, "but even if they were, Minnesota law declares such marriages void.2Same-sex marriages are the line in the sand which we will not cross without an upheaval of history, of the Constitution, of the Bible, and of Divine purpose."

"Wow," she rejoined, inelegantly, "that’s heavy-duty Bible-thumping, Norm. I thought you neocons made your arguments on the law and sociology and economics; it sounds to me that your authority is your Namesake Norman Vincent Peale."

Natural Law

Norman sat back, assumed a posture with lower blood pressure, and replied slowly. "All right, I’ll answer in the idiom of Heathen-ese, so as not to offend your so-called principles. The source of the civil law is natural law.3As Blackstone decreed, the function of the judicial system is not to invent the law but to discover it, sometimes from custom, sometimes from logic, sometimes from revelation, and sometimes from natural law.4Meanwhile, the law (he drew out the word so that it had almost three syllables) in Minnesota, a statute derived from natural law, states that marriage is a civil contract between a MAN and a WOMAN and that ‘lawful marriage may be contracted only between persons of the opposite sex.’"

"That statute," she parried, "was enacted in 1941, when it was also legal to incarcerate Japanese-Americans, to fund segregated public schools, and to sexually harass employees with impunity. The winds of change are going to obliterate your bigoted line in the sand against same-sex marriages, Norm-baby, so face up to it."

Before Norman could reply, she leaned forward and added a question: "Why do you care if two men or two women want to marry each other? I thought conservatives opposed governmental intrusion into private lives—or is it only intrusions into making money and paying taxes that you guys
oppose?"

"This will take some doing since I doubt that you accept the notion of natural law, even though our legal system derives from Roman law at the time of Justinian, which in turn was based on reason and immutable laws of nature;6 but, if you’re really interested in why neocons care, you will have to suspend your disbelief for just a moment—not long enough for anything spiritual to sneak through the door, so don’t worry—in order to be able to grasp our worldview."

He paused, partially for effect and partially to frame his reply in conceptual terms that might actually resonate with Laura. "Marriage may be merely memorialized in legislative enactments," he said alliteratively, "but it is a social phenomenon in all countries and all cultures for all of recorded history, so it evidently has some transcendent importance beyond Howard Dean and his allies in the Vermont Legislature. Even your hero, Justice William Douglas, when concurring in Griswold v. Connecticut, opined that ‘marriage was intimate to the degree of being sacred.’7Your man Douglas was also the author of the Supreme Court opinion in Skinner v. Oklahoma,8 where he said that marriage was fundamental to the very existence and survival of the human race."

Procreation

"No doubt your omission was inadvertent, Norm," Laura quickly pointed out, "but what Justice Douglas wrote in Skinner was that ‘marriage and procreation’ were fundamental to the survival of the human race. It is, of course, axiomatic that procreation is fundamental to the survival of the human race, but in 1942, the Supreme Court may not have wanted to acknowledge that humans are quite capable of procreating without benefit of clergy. But I digress: Even if Justice Douglas and the whole damn Supreme Court of 40 years ago thought that marriage was ‘sacred’—whatever significance you want to pour into that word—there’s no reason it can’t be sacred if the two people in it have the same chromosomal arrangement."

"Let me try it from another angle," Norman said. "Even though the United States is a secular nation, the overwhelming majority of its people have deep religious traditions which the law and the government will not challenge. In the Old Testament, it is clear that marriage was a commandment and that only heterosexual marriage was permitted.9In Catholic tradition, marriage is a sacrament.10When the crazy Canadians were trying to amend the Marriage Act to permit same-sex marriages, an interfaith coalition developed to oppose the amendments; that coalition included the Archdiocese of Vancouver, the Islamic Society of North America, and the Evangelical Fellowship of Canada."

"I read that article, Norm. The coalition grounded its argument on the belief that same-sex marriages couldn’t accomplish the fundamental purpose of marriage, which they contended was procreation. Do you neocons object to people who get married and choose NOT to have children? Our Roman forebears allowed hermaphrodites and eunuchs to marry, even though they could not procreate.12 How about mandatory divorce for married couples who neither adopt nor produce children the anatomical way? Wouldn’t that be consistent with the notion that marriage requires procreation?"

"No, of course not," he answered almost petulantly. "That would be absurd, and neocons would protest just as loudly if some fools tried to legislate procreation as we shall scream bloody murder if those same fools try to modify the kind of heterosexual marriage that is clearly hardwired into the human psyche. Think about it in evolutionary terms: We are all descended from men who preferred fertile women, and we have inherited from those ancestors that same preference. Even the word ‘marriage’ comes from the Latin matrimonius, an extension of mater, which means ‘mother.’ Clearly, marriage derives from the state of motherhood—which is not physiologically possible in a marriage unless one member of the pair is a woman, and the other member of the pair is a man. The social structure of Homeric Greece, very similar to ours, regarded marriage as its linchpin.13 The Romans thought so highly of marriage that as a disincentive to stay single, Roman law prohibited single, divorced, and widowed people from receiving inheritances.14 And, of course, our Anglo-American legal tradition sprang from medieval England, where the ecclesiastical courts took great pains to protect the institution of marriage."15

"Norman, I hate to interrupt," she said unabashedly, "but there are so many things wrong with what you just said that if I don’t rebut them now, I’ll forget them all: FIRST, your Latin is rusty; ‘marriage’ derives from maritus, which means ‘husband.’16 Marriage has always been about power and property and status, not procreation, and when the institution got started, power, property, and status were all aligned with the husband. SECOND, your paean to idyllic, Homeric Greece is childlike: The Classical Age of Greece was all about domestic violence. Clytemnestra killed her husband, Agamemnon; Medea killed her two children as revenge because her husband, Jason, took a new wife. Oedipus blinded himself, and Jocasta committed suicide because of their incestual relationship. And the founding myth of Western Culture, Homer’s Iliad, is all about the abduction of someone else’s wife. This was a time when men, who did all the writing, obviously feared vengeful wives.17 THIRD, as a group we are obviously descended from those who chose to have children, but each of us has the right to choose to be an ancestor or not, just as we choose whether to act on the impulses to torture, maim, and kill which we have evidently inherited from the survivors of all of history’s wars. Besides, Casanova evidently left more descendents than four or five of your average right-wing burghers combined, and he never married.18 FOURTH, your hymn to medieval England is off-key: Article 6 of the Magna Carta prohibited King John from selling his ‘wards’ in marriage.19 In ‘protecting’ marriage, the church forbade marriages within the seventh degree of consanguinity (i.e., sixth cousins, or individuals whose great-great-great-great grandparents were siblings).20 My guess is that if we still applied that principle, a whole bunch of Olsons, Johnsons, Carlsons, and Nelsons in Minnesota would be deemed to be living in incestuous marriages."

Consanguinity

"Let’s take your last point," Norman inserted, at what he recognized to be Laura’s weakest argument. "In the 11th century, when the church initiated that rule, most people lived in small villages and never ventured more than 20 or 30 miles their whole lives. The church’s incest rules forced people to look beyond their villages for spouses and literally changed the face of Europe and broke down the clan-centered organization of society.21 Now that we live in urban aggregations, you can now marry your second cousin or your first cousin’s parent.22 But in the overall picture of marriage, the consanguinity factor is rather minor."

"What’s major, Norm?" Laura asked. "Just gender? How about age, number, race, and ceremony; do they count?"

"What are you trying to say, Laura?" Norman asked, readying himself for incoming flak.

"Let’s start with age: In Minnesota you have to be 18 (or 16 with parental permission).23 But throughout the millennia of natural law to which you genuflect, that wasn’t so: In ancient Rome, girls were married at age 12 because Roman physicians thought that defloration brought on menstruation.24 Even after the Protestant Reformation, most European countries allowed men to marry girls as young as 15".25

"What’s your point?" interject-ed Norman. "Ideas about maturity change. Just a few decades ago, most states in this country didn’t permit people to vote or marry until they turned 21. The pendulum has swung between two silly arcs of 12 and 21; now we’re in the right place."

"Let’s move to number," Laura suggested. "I personally don’t think I could tolerate either two husbands or a co-wife, but if somebody else wanted to live in a polygamous marriage, why should the government prevent it?"

"Well," said Norman, almost beaming. "I’m surprised to hear you, a devoted feminist, defend polygamy. There are very few recorded cases of polyandry (one wife with multiple husbands), mainly in pockets of Tibet and Nepal where brothers share a wife so that the father’s land doesn’t get carved up among his sons.26 In almost all cultures, polygamy has meant polygyny (one husband with many wives). And where they didn’t refer to the later-acquired women as wives, they called them ‘concubines,’ a nice euphemism to disguise polygamy."27

"It seems as if we agree on something, then, Norman. You keep reaching back to Biblical times in support of your historical origins of modern marriage. I do believe that Abraham, Jacob, and David, and probably several others in the Old Testament all had concubines along with first wives, and King Solomon reputedly had 1,000 in his harem. And, as the newspapers have pointed out, the Quran permits Moslem men to have four wives."

"Shall we stop, now that we have reached agreement?" Norman asked.

Exogamy

"No, we’re not done yet," Laura replied. "Ancient marriage laws consistently prohibited exogamous marriages: The Hebrews prohibited marriage outside the tribes—with an exception for beautiful, captive women.28 The Greeks were no friendlier, prohibiting men (who controlled everything) from
giving their daughters in marriage to any foreigners.29 The Romans even criminalized intermarriage if a Roman citizen had the temerity to marry a Jew, a slave, an actress, a circus performer, or a ‘barbarian.’ The Romans did not prohibit homosexual marriages, by the way, until Christianity became the state religion; for the first 300 years of the Common Era homosexual marriages were quite common; even the Emperor Nero had five spouses, two of whom were men!"30

"It’s a big yawn, so far, Laura. People still may object to intermarriage, and our literature from Romeo and Juliet to West Side Story is filled with such presumptions, but the law in this country has not attempted to intervene in those kinds of choices since the Supreme Court invalidated statutes prohibiting interracial marriages in 1967."31

"I have one more bone to pick with you, Norm. Even in progressive Minnesota, it’s not a marriage unless it is solemnized by a state-approved official such as a judge, a court administrator, a clergyperson, or a clerk of a Friends’ Meeting.32 That was never a requirement in days of yore. In ancient Greece, there was no wedding but a sequence of rituals including prenuptial baths and a parade which took the bride from the father’s house to the groom’s home.33 Throughout Christendom after the fall of Rome, a marriage consisted of a ‘precontract,’ sort of like pre-boarding an airplane: The pre-contract was a promise to marry in front of two witnesses. Once the couple had sexual relations, they were married—no clergyperson necessary.34 Neither the Catholics nor the Protestants required the presence of a clergyperson to witness, later solemnize, the marriage until the 16th century.35 The Puritans married at home, having decided that church weddings were ‘Popish.’36 This marriage ‘ceremony’ only applied to the propertied classes, of course; slaves, serfs, indentured servants, and peasants didn’t bother with pre-contracts because they didn’t have a dowry, which, as you may know, is a polite way of saying that the father of the bride sells his daughter to the prospective groom."37

"Wait a minute, Laura," interrupted Norman. "You can’t have it both ways: If the father is selling his daughter, then why is he paying the son-in-law to take her away? And we still have a dowry; we have just changed the name to ‘expensive wedding.’"

"The point, Norman, is that what you characterize as an immutable tradition that began with Adam and Eve has changed a good deal, by the church and the state. The government and organized religion have both tried to set limits on our choices: by age, number, race, consanguinity, licensure, and the credentials of the solemnizer. Why not stand up on your Libertarian hind legs and bark at the government to not automatically cut off half the potential candidates because of gender?"

"Laura, Laura, Laura," he repeated cluckingly, "you just don’t get it, do you? The next thing you liberals will be asking is for the government to permit marriages between humans and monkeys or dogs. You people just aren’t happy unless you’re ripping up traditional values."

"If it weren’t 7:45, Norman," she replied in a tone halfway between exasperation and cultivated patience, "I’d zap you for that ‘you people’ remark that was buried in Redneck Cemetery. Please pay the bill."

They went home together to the house in which they cohabited without benefit of marriage to watch The West Wing—she to rave, he to make Bronx cheers.

1 U.S. Constitution, Art. IV, section 1.

2 Minn. Stat. § 517.03, subd. 1(b).

3 Michael Walsh, Marriage and Civil Law, 23 St. John’s L. Rev. 263 (1948-49).

4 Charles Rembar, The Laws of the Land 47 (1980).

5 Minn. Stat. § 517.01.

6 Rene David and John Brierly, Major Legal Systems in the World Today 33-47 (1988).

7 381 U.S. 479, 85 S. Ct. 1678 (1965).

8 316 U.S. 535 (1942).

9 Isaiah Gafni, The Institution of Marriage in Rabbinic Times, in The Jewish Family 13 (David Kramer, ed., 1989).

10 So designated by the Council of Trent in 1563. Yalom, infra note 17, at 46.

11 William Johnson, In Search of a Happy Ending, Toronto Globe and Mail, May 5, 2003, at A15.

12 Matt Ridley, The Red Queen 16 (1993).

13 Claudia Leduc, Marriage in Ancient Greece, in A History of Women in the West 236-245 (Pauline Schmitt Pantell, ed., 1992).

14 Yan Thomas, The Division of Sexes in Roman Law, in Pantell, supra note 13, at 85, 119; Aline Rouselle, Body Politics in Ancient Rome, in Pantell, supra note 13, at 315-16.

15 I Pollock and Maitland, The History of English Law, 127.

16 Eric Partridge, A Short Etymological Dictionary of Modern English 382 (1959).

17 Marilyn Yalom, A History of the Wife 19 (2001).

18 II Encyclopedia Britannica 606 (15th ed. 1985). The idea is from Ridley, supra note 12, at 179.

19 Richard Perry, The Source of Our Liberties 13 (1978) (fn. 41).

20 Pollock and Maitland, supra note 15, at 382.

21 E. I. Graff, What Is Marriage For? 164 (1999).

22 Minn. Stat. § 517.03, subd. 1(a).

23 Minn. Stat. § 517.02.

24 Rouselle, supra note 14, at 300. Graff, supra note 21, at 65-67.

25 Kathleen Tracy, The Secret Story of Polygamy 61 (2000).

26 Id.

27 Id. at 51.

28 Christine Hayes, Intermarriage and Impurity in
Ancient Jewish Sources,
92 Harv. Theological Rev. 3 (1999) (citing Ezra 9:2 and 10:19 and Deut. 21:10-14).

29 Leduc, supra note 13, at 277 (citing Demosthenes, xvii, 4-5).

30 Rouselle, supra note 14, at 319, 324, 331-32. Yalom, supra note 17, at 40.

31 Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967).

32 Minn. Stat. §§ 517.04, 517.09.

33 Louise Bruit Zaidman, Pandora’s Daughters and Rituals in Grecian Cities, in Pantell, supra note 13, at 361-65.

34 Christopher Lasch, Women and the Common Life: Love, Marriage, and Feminism 39 (1996).

35 Id. at 43.

36 Yalom, supra note 17, at 114.

37 Graff, supra note 21, at 18-20.


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