The Surprising Lessons of the Past

In the Western tradition, marriage has long been both a secular institution and a religious institution. Furthermore, the degree to which the law has been involved in marriage – in both its secular and its legal manifestations – has varied tremendously over time. In "An Introduction to Roman Law" (a classic book on the topic), Barry Nichols writes the following about marriage in the ancient Roman empire:

“There are few Roman institutions which differ so fundamentally from their modern counterparts as marriage. From the legal point of view marriage is to us a status, the creation and termination of which are closely regulated by the law, and which not only founds a number of rights and duties between the parties but also to some extent affects the relationship of the parties to the rest of the world. A Roman marriage, on the other hand, was very largely a social fact, about the creation and termination of which the law had very little to say, and which had almost no effect on the legal condition of the parties” (p. 80).

So for the ancient Romans, marriage was essentially a private matter–not one which the legal system had much to say!

In the Roman Catholic tradition, marriage is both a legal contract and a religious sacrament. What many people do not know, however, is that it is a sacrament that the parties perform themselves. In other words, the priest does not, technically speaking, perform the marriage. He is an official witness. And for most of the Church’s history, he was not even a necessary witness. Up until the time of the Council of Trent, in the sixteenth century, two parties could engage in private or secret marriages; that is, two lovers could simply marry themselves on a Saturday night. Needless to say, this possibility resulted in a more than a few situations of misunderstanding, abuse, and dispute. In response, the Council tightened the requirements for a valid marriage under Church law. The Council decreed that “Those who attempt to contract matrimony otherwise than in the presence of the parish priest or of another priest with leave of the parish priest or of the ordinary, and before two or three witnesses, the Holy Synod renders altogether incapable of such a contract, and declares such contracts null and void.”

As the decree of the Council of Trent suggests, both the secular and religious forms of marriage have changed tremendously over the centuries. (A great resource is John Witte, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (1997). So we can’t approach the question of marriage law today with the assumption that marriage is now what it has always been in either its religious context or its secular context. The question is whether there are central purposes of marriage that have to be defended despite the changes. In the contemporary context, the central dispute is whether marriage is fundamentally an institution that is meant for the mutual support of the parties, or whether it is fundamentally an institution designed for the procreation and education of children.

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There is a simple solution to this controversial problem. Look to the definition of marriage!

We are an ever-changing people: from one generation to the next, hairstyles change, clothes change, etc.

Not only do we purposely change, we purposely improve(or at least we try).

However, just as I cannot change the past, I cannot change a people's definition of an act, person, or thing.

Therefore, no person shall change the definition of marriage to include gay persons, whether it be man to man or woman to woman.

What we can do is improve by creating new words to explain this union of persons.

Posted by: Eddie | June 4, 2008 11:23 PM
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The Council of Trent seems to be one of the many cases where the church took a fall-back position. Unless the church has the authority to do that then marriage is still a very private contract between two people. All roads must lead to Rome and the authority of the church.

That's the dispute. Doses the church have the authority to define marriage? Taxes are the catalysts. And, gays folk being recognized as, well, folk is the prime mover.

Things would be a lot simpler if there was but one church that spoke with one voice and the civil authorities were on call to enforce it's word. That's been done and it was a great success for it's originator, Constantine the great.

If you truly want to understand it then take it back before it's source and see what hatched it out. That's before and not just to it's source. What did Constantine use to invent such a wonderful system, (for himself)? Let's see. There were holy men with sacred scriptures passing the plate and raking in the free money... You're not done there. Where did those holy men come from? It's their marriage protocol we can't seem to get straight.

All roads actually lead to a conversation between a "killer on the run" nicknamed Moses and a supernatural being that lives in fire just like the fire of hell. There's just one question left to answer. Was that God or Lucifer in that ball of fire? Maybe there's a third option that solves the gay marriage problem once and for all or at least until someone else has a conversation with a supernatural being? God or Devil is the question and the evidence says IT was????

Posted by: BGone | May 26, 2008 12:13 PM
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One more so-called "Catholic" who claims to speak for the rest of us.

Posted by: Olivia | May 25, 2008 10:42 PM
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History is O.U.R. Jury!

Posted by: To Lady KAVENY | May 24, 2008 3:53 PM
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Google to go:

epistle.us/hbarticles/neareast.html

Excerpt:

" First, homosexuality in many forms pervaded the ancient Near East, and with more openness beyond Egypt. As long as persons got married and had families, homoerotic activity was generally accepted as part and parcel of life. Still, there was a certain stigma attached to a man who took the passive, womanly role in a sexual relationship.

Recently:

findarticles.com/p/articles/mi_m0377/is_n112/ai_14466341/pg_4:

Excerpt:
Edward Westermark observed that "it is a common belief among the Arabic-speaking mountaineers of Northern Morocco that a boy cannot learn the Koran well unless a scribe commits pederasty with him. So also an apprentice is supposed to learn his trade by having intercourse with his master."(9)

And these comments by the author of the article: findarticles.com/p/articles/mi_m0377/is_n112/ai_14466341/pg_4:

“The Hebrew Bible, in particular the Torah (the first five books of the Bible), has done more to civilize the world than any other book or idea in history. It is the Hebrew Bible that gave humanity such ideas as a universal, moral, loving God; ethical obligations to this God; the need for history to move forward to moral and spiritual redemption; the belief that history has meaning; and the notion that human freedom and social justice are the divinely desired states for all people. It gave the world the Ten Commandments and ethical monotheism."

See the added Torah qualifications by the author, Dennis Prager

And from:

findarticles.com/p/articles/mi_m0377/is_n112/ai_14466341/pg_14

“Just as we owe homosexuals humane, decent, and respectful conduct, homosexuals owe the same to the rest of us. Homosexuals' use of the term "homophobic," however, violates this rule as much as heterosexuals' use of the term "f t" does.”

When the term "homophobic" is used to describe anyone who believes that heterosexuality should remain Western society's ideal, it is quite simply a contemporary form of McCarthyism. In fact, it is more insidious than the late senator's use of "communist." For one thing, there was and is such a thing as a communist. But "homophobia" masquerades as a scientific description of a phobia that does not exist in any medical list of phobias.”

Posted by: Concerned the Christian Now Liberated | May 23, 2008 8:08 PM
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Historical facts rarely change attitudes. Any claim to "tradition" includes an arbitrary selection of one period of the past over any other. As often as not, it boils down to "What we imagine our great grandparents did or thought and therefore -- because we are sure they never suffered 'innovation'-- what has always been done or thought" Such claims are also always coincidentally aligned with the claimants personal prejudices.

M. Cathleen Kaveny

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The Surprising Lessons of the Past

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