In Zablocki v. Redhail, the U.S. Supreme Court decided that marriage is a fundamental right. (I’d cite it, but only a lawyer would care, and they can find it anyway.) What is important about the word fundamental is the USSC applies the highest level of scrutiny to those cases involving fundamental rights. One really needs to have their stuff together! This argument may not meet their standards, and is certainly not in their form. But, I’m writing for you, not them.
Now that we have established the degree of difficulty in proving the case, we must look at the law itself, it’s origins, premise, and changes. I shall use the State of Florida as an example, although it is applicable to every state having English Common Law as it basis. This may exclude Louisiana (French) and California (Spanish).
When Florida became a State in 1845, we adopted carte blanche the laws on matrimony from English Common Law. The laws changed both there and here, yet the premise of these laws remained the same. The source of these laws was Horny Henry VIII and the Roman Catholic Church.
In 1510, Henry VIII married Catherine of Aragon, his brother’s widow. Pope Julius II approved this marriage, because Henry officially joined in league with the Roman Church. Henry felt one of his first duties was to provide a male heir to the throne and he wanted to establish a bond with Spain. Turns out, Catherine gave him Mary (Queen of Scots) and miscarried two male children. Around 1522, two things happened: The hottie, Anne Boleyn, came to Court and Henry vigorously opposed the thesis of Martin Luther in his book, Defense of the Seven Sacraments. For the latter, Pope Leo X awarded Henry the title of “Defender of the Faith.” This phrase is important!
According to Andrews, Henry started making eyes with Anne around 1524, but she rebuffed him. (The King?) Henry was frustrated by Catherine’s inability to produce a son, so he petitioned Cardinal Wolsey for a divorce. Wolsey said no, so he lost his head in 1529. Then, Henry began his attack on Rome. He stopped sending the tithe to Rome in 1531. Pope Clement the VII still would not grant the divorce. So with the help of Thomas Cromwell, he drafted The Act of Supremacy in 1534, right after he married Anne Boleyn in January of 1533. Oh, Elizabeth I was born September 7, 1533. This act declared the King, “be reputed the only supreme head in earth of the church in England.” The Church and State became one! Nothing changed in terms of Roman worship, and Parliament in 1539 passed The Six Articles Act, the first act of religious uniformity. Poor Anne, who did not give Henry a male heir, did not live to see this Act. She was beheaded on May 19,1536. Henry married Jane Seymour on May 20,1536
All of this was going on just after Pope Alexander VI’s kids, Lucrecia and Caesar Borgia, were wandering around the Vatican and Leonardo da Vinci died in France. Exciting times!
However, the point here is Henry recognized the Church was responsible for the creation of marriages. He simply made himself Head of the Church in order to advance his own brand of morality. In doing so, he made all of his secular officers a part of the Church and later, some of those in the Judicial branch of government were given the authority to perform the marriage ceremony. The Puritans settling in America in the early-mid 1600’s, later turned the function of marriage over to “secular” authorities (who were acting on behalf of the King, the Defender of the Faith. Were they acting on behalf of the State or of the Church?) One might imagine that marriage involved sex and sex was secular having nothing to do with the sacred, therefore…?
Marriage Act of 1753
The Marriage Act of 1753 was based on the “principle” that marriage was not a sacrament, but a civil contract, which although blessed by the Church, was still open to control by civil authority. What happened to cause this?
In 1563 at the Council of Trent, the laws of marriage were changed in Catholic Countries to bring tighter control of the Church. England’s medieval laws of marriage were left unchanged, except between 1640 and 1660 when the Protectorate placed the performance and registration of marriage in secular (civil) hands.
The Council of Trent had its impact in England. Marriages became more public, lavish and expensive. The poor—even the middle class—could not afford to marry. So, the populace came up with Clandestine Marriages. These were verbal and written contract marriages where the couples simply said, “I take you to be my husband/wife” or words to that effect. And there were Fleet marriages. The area around Fleet Prison was quite disreputable. Defrocked clergy lived there as well as imposter clergy. Marriages were performed there as early as 1604, and possibly before.
These Clandestine marriages were not under the control of either Church or State. The Church eventually recognized them as valid, but they had no standing under Common Law. Under Common and Canonical Law, the wife had the Right of Coverture (coverage): to be maintained and protected by her husband. She surrendered all rights of Common Law to the husband. She could not make contracts, a will, or run up debt. But she did have right to a dower, 1/3 of the husband’s estate upon his death, and her children were legitimate heirs. These rights were non-existent under contract marriage.
Then came the Marriage Act of 1753. This act had some interesting provisions. First, it excluded Jews and Quakers. There was no consensus about how a legally binding marriage should be carried out. The legal age for marriage without parental consent was 21. In Scotland, the minimum age was 12 for girls and 14 for boys. They mature early in Scotland. Quite a few marriages were performed in Gretna Green, Scotland, just over the border from England. Marriages were made that defied the laws of bigamy, incest and consent. Further, there were three different Courts for controlling marriage and its dissolution: Canonical (church), Equity (property) and Civil (common). Each had its own set of conflicting laws. A lawyer’s paradise! This system resembled a legal garbage heap.
We must remember that at this time a wife was property (chattel) and subject to laws of equity. In the late 1700’s, should a man flirt or have an affair with a married woman, it was called Criminal Conversation. A husband could sue his wife’s suitor for damages to his property. The wife, as the property of the husband, could not defend herself or testify in court. Awards grew from £700 in 1790 to £15,000 by 1815. Fortunes were made and lost.
This brief history is only the tip of the iceberg. It is what was when many States were admitted to the Union between 1789 and 1845: States that adopted carte blanche the matrimonial Common Law of England.
As an aside, in 1945, the State of Florida emancipated women. Women now had the right to own property (real and physical, like houses and cars.). In 1998, by State constitutional amendment, women became persons. Prior to 1998, only her unborn child was considered a person for criminal proceedings. Were the child born a girl, it wasn’t a person.
The first thing we must understand is that law is not Law. It is simply code. This code is made by humans who are screwed up as the rest of us. It purports to reflect current social attitudes, rather than Law. Law, or Natural Law, was supposedly the basis of our Constitution. The Constitution was simply a guideline upon which States could write their codes in order to avoid tyranny.
Mistakes were made in the adopted draft of the Constitution. However, it both recognized that mistakes could be made and provided a remedy in the form of Amendments. The 15th Amendment was the last Amendment that rectified Constitutional errors. The rest of them ARE mistakes. These mistakes were made either deliberately to impose tyranny or because our elected officials (Congress) lacked the balls to pen and pass legislation that would rectify conditions existing under code, not Constitution.
But, back to marriage. When the various states adopted the laws of marriage from England, they also adopted the “principle” that marriage was a civil contract. Prior to his getting the hots for Anne Boleyn, Henry vigorously defended the sacrament of marriage, indicating that it was a function of the Church, not the State. However, the State has no right to interfere within the bounds of a marriage it deems legally valid. Nor does it have the right to interfere in the lives of those whose marriages it has dissolved! The extension of these “states rights” could eventually lead us back to jus primae noctis, the right of the Governor or his designated appointee to claim the virginity of a young lady on her wedding night. Is it far fetched? It is quite obvious we have learned little from our history.
Call me old fashioned, or even Neanderthalic, although Cro-Magnon is more applicable, but I am glad that we have code on bigamy, incest and consent in marriage. I am glad that my children have a legal right to my estate, all $3.28! I believe these to be valid functions of government. But we have diverted our purpose in marriage to something far less than for which we have the primal capacity.
We make the assumption, on lack of evidence that early man did not love. We further assume early man had no valid social structure, other than hunter-gatherer, or agrarian. We don’t really know. From the agrarian age came “economic marriages.” Neighbors would marry to increase adjacent land area on which crops could be grown. We are just so superior they couldn’t have had anything like what we have today. (Thank God!)
I have been talking with some American Indians about the “old ways”. Widows and orphans were the responsibility of the next of kin, until a widow remarried. Wife beating was cause for a man to be lashed to a pole and whipped by the tribal women. Marriage was permanent: separation only by death. Sounds pretty biblical, for a bunch of “savages”. Seems they were living it, while we were just talking about it.
I believe there is something primal within us, long neglected, something that needs to be found again for our benefit: hieros gamos, the sacred marriage. Although today, the Greek Orthodox Church performs hieros gamos and attributes it to Adam and Eve, it was originally used to describe the marriage between Isis and Osiris, the legendary rulers of Egypt. This is one of the first marriages where the love and power of the couple is heralded. I believe this power is available to us all, when we fully love. Today’s governments have the objective of diverting us from this through “education” and other forms of propaganda. Many aspects of the codes are derived from our primal nature, but so twisted as to become unrecognizable.
The earlier mentioned Right of Coverture, a woman’s right to be protected by her husband, may not have been a “right” as much as it was the prudent thing to do. In love, there is power. When reciprocated, the power multiplies. So, are we protecting our love and source of power, or are we dressing up our pleasure palace?
Through centuries of denigration, we have not recognized the power of our love. It is worthy of protection. It is prudent to do so, when and while love is present at whatever level. Today, States will dissolve a marriage yet leave the financial bonds intact; i.e. enforcing ex post facto coverture. At the same time, these same courts have no legal means of acknowledging the wife’s contribution to jointly accrued assets. I heartily approve of requirements for child support from the non-custodial parent. However the custodial parent today has no responsibility to insure the funds are being used directly or indirectly for the children. Further, payment is made directly to the custodial parent and the custodial parent has no legal obligation to become a trustee. Leaving these bonds intact does not in fact dissolve the marriage! Creating a legal entity of “trustee” would insure the legal completeness of the dissolution and not impact the amount of monies received. Oh. I forgot. In this patriarchal society, women do not have the intelligence to become trustees. Again, we are neglecting the primal origins of Natural Law.
Our marriage laws, stemming from Horny Henry’s morality, are based on the “principle” that marriage is a civil contract. This “principle” is a fabrication of Lord Chancellor Hardwicke’s wholecloth! It was but political rhetoric of the day (1753) having no basis in previous law or established custom. This “principle” has its origins in Henry’s morality. I submit that the premise and foundation of the law, “marriage is a civil contract,” is flawed as are the laws built upon it. It would seem the cart is before the horse and the term “civil marriage” is an oxymoron. The “principle” of slavery was over turned on a faulty foundation, as should the “principle’ that marriage is a civil contract.
Although Henry VIII once defended the sacrament of marriage, the word sacrament is very closely associated with the Christian religion. Personally, I feel that a marriage made in the Church of Universal Light or Life or whatever it is, is as valid as one made in the Roman Catholic Church. Perhaps marriage would be better defined as a sacred contract which government has the duty and obligation to regulate only in so far as to provide for the common welfare, by the least restrictive means. If promoting government interest is not to provide for the common welfare, of what use is government?
Further since these laws are based on laws from a combined Secular/Religious State, it would appear they violate the First Amendment, calling for separation of church and state. The letters “FD” (Fidei Defensor, defender of the faith) still appear on British coinage indicating the unity of church and state. It is quite obvious something is wrong with our codes for marriage. The easiest place to look is the Constitution. I think a better case can be made by one more knowledgeable than I am. But this will do for now.
There is no doubt that in the early stages, and early is relative, most marriages are utopian. No law of man, nor do I believe God because of man, will ever make marriage a continual Utopia as the couple grows and strains. It isn’t supposed to be Utopia! Growing periods can be painful. However, when marriage is considered as a sacred contract, perhaps marriages will become less disposable. Perhaps governments will less heavily impose themselves upon the rights of married couples. Perhaps even those married will increase their concern and attention to the marriage. Perhaps one can only hope.
Copyright Art Noble 2011