Marriage, naturally, functions on a variety of levels. Some see it as a sacred bond, others as a rite of passage, while others see it as a legal compact. For an American governmental agency, such as the California court that recently overthrew that state's ban on gay marriage, marriage can only be viewed from the legal perspective. The Constitution ensures us freedom from laws that establish one religion over others. If the State or a court takes a religious view of marriage, then they have violated that most basic principle of American liberty.
Nonetheless, even within the legal framework, marriage can be defined in a variety of ways. Thus common law marriage, based upon length of cohabitation and/or children from the relationship, is a legal status in many states, even though the parties involved have never gone through an official marriage process.
So too, a state could choose to define marriage as a contract between two parties of the opposite sex. The blatant legal discrimination against couples of the same sex that results -- in terms of tax liabilities, inheritance rights, visitation rights in hospitals in case of an emergency, etc, etc -- and the limitations placed upon the life choices of same-sex couples makes this an unpalatable option to those of us who believe that God did indeed create us all equal, and endowed us with certain inalienable rights, including the pursuit of happiness.
In the Islamic worldview, marriage is a social contract, the solemnization and public recognition of a relationship that includes love and affection, sex and (perhaps) children, as well as mutual benefit in the division of labor within a household. It provides for financial safeguards and security for children and the wife in the case of a dissolution of that relationship.
Interestingly enough, when talking about the institution of marriage, the Qur'an uses the word "zauj" to describe both partners. While much of the discussion of details surrounding martial life and divorce clearly assume a male and a female partner, the fact that the word "zauj" is used for both sides in the most fundamental descriptions of this unique bond between two human beings seems to me to leave the door open for that relationship to be more expansive and inclusive than the traditional husband-wife pairing.
Given the context of Islam's insistence on sex taking place only within a solemnized relationship, the need for marriage to be inclusive becomes clear. Otherwise the Qur'an would be condemning a significant portion of the world's populace to celibacy or sin. I find it hard to believe a Just and Loving God would create people only to subject them to such torment.
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