Religion, polygamy, and non-traditional families: disparate views on the evolution of marriage in history and in the debate over same-sex unions.

• Author: Kindregan, Charles P., Jr.

1. INTRODUCTION

   For many decades the definition of marriage lay at the backwater of family law analysis. This began to change over a decade ago when the Supreme Court of Hawaii ruled favorably on an attempt by same-sex couples to obtain marriage licenses, (3) prompting the United States Congress to respond by enacting the "Defense of Marriage Act." (4) Since then, state legislatures in a few states have conferred some of the benefits of marriage on same-sex couples entering into civil unions (5) or domestic partnerships. (6) For example, the New Jersey Supreme Court ruled that same-sex couples must be accorded equal treatment under the law with opposite-sex couples who choose to marry, but left it to the legislature to decide if this meant marriage or some other marriage-like status. (7) Meanwhile, Canada, a common law country, redefined marriage to include same-sex couples, (8) and several other countries did the same. (9) In the United States, as discussed below, the Massachusetts Supreme Judicial Court (SJC) has rewritten the common-law definition of civil marriage by a judicial decision.

   Another noteworthy development in the definition of marriage is a proposal developed by the American Law Institute, which effectively equates marriage to the relationship of unmarried domestic partners who maintain a common household, have a common child, and meet other requirements. (10) The proposal would bestow on these couples property rights historically associated with marriage. (11) If enacted into law, this idea would require cohabitating individuals who qualify for such a "marriage-like" designation to specifically opt out of the legal consequences of their relationship if they wish not to be bound by the law. These and other developments, such as civil unions and domestic partnerships, have put marriage and its would-be imitators back on the public and political agenda.

   In the United States, the public debate over same-sex marriage has focused attention on the nature of marriage. When the Massachusetts SJC ruled that same-sex couples have the right to obtain civil marriage licenses under the state constitution in Goodridge v. Department of Public Health, (12) the majority opinion contained numerous historical references. Chief Justice Marshall, writing the majority opinion, aptly commented that "[o]ur concern ... is whether historical, cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry." (13)

   The Goodridge decision was the first made by the highest court in any American state to recognize the right of same-gender persons to marry. In its ruling, the Massachusetts SJC brought an edge to the national debate about the nature of marriage. This debate has since touched on historical, cultural, religious, social, and constitutional themes inherent in the discussion of same-sex marriage. (14) This Article examines these various themes in light of the continuing debate over the law governing marriage in the United States and elsewhere.

   The decision by one state to recognize a form of marriage different from the traditional definition of marriage--defined as "a legal union between one man and one woman as husband and wife" (15)--was bound to encounter widespread controversy here, as it has in other Western countries. The debate over the definition of marriage has been so intense that the President of the United States actually supported an amendment to the Constitution that would limit marriage to the traditional definition. (16) A debate among legal scholars about the issues underlying the very concept of marriage has also intensified to the point where the American Law Institute suggests that the obligations of marriage might justly be imposed on persons living in non-marital cohabitation relationships, unless they choose to contract out of such duties. (17)

   This Article attempts to provide historical perspective to assist in understanding the marriage debate both in the United States and other countries. To those who argue that the nature of marriage is not subject to debate because it has been fixed since the evolution of human society, I suggest that such a proposition is historically inaccurate. To those who argue that certain religious beliefs prohibit tampering with the definition of marriage, I suggest that history shows the evolution of legal marriage into a civil union independent of its religious origins. As the nature of marriage has evolved over time and marriage has become a recognized civil union, rather than a religious one, I propose that changes in societal views of marriage are not abnormal. Further, I urge that the law must adjust to accommodate such changes.

2. THE PERSONAL AND CULTURAL VIEW OF MARRIAGE

   People living in a particular culture and given period of time often assume that their own personal experiences of marriage and family have been the norm throughout history. For many individuals, their own family life, schooling, and religious beliefs often reinforce this construct. Some people have difficulty acknowledging that the concept of marriage has changed throughout history or that marriage may differ from their own moral or religious convictions. Many believe the state's definition of civil marriage should conform to their own personal experience of family life, while refusing to accept alternative family views. For these people, views of marriage and family life have remained static for centuries and cannot change. (18) This is especially true when issues such as same-sex unions, polygamy, long-term cohabitation, or domestic partnerships are raised.

   Each human being has a mental photograph of what marriage and family mean in his or her mind. It is, therefore, understandably difficult for many to see anything other than the view developed in their own experience as proper. In this Article, I ask the reader to consider whether his or her mental photograph, which may be perfectly valid as a religious, moral, or personal concept, is also relevant to the state's legal definition of civil marriage. (19) It may be easier for the reader to form an opinion on this question by considering whether marriage has actually changed throughout history, or whether it has remained static.

   In some respects attempting to understand the meaning of marriage throughout history may be a retro-study. Today much of the academic study of family law has moved far beyond the concern about the form of the marital union. Instead of concerns about the technical form of a relationship, legal issues involving the family today come to focus on substantive issues of personal partnerships, caregivers, implied and express contractual arrangements, wealth distribution, termination of parental rights, parentage, parenting plans, and matters other than the marital status of adult couples. Despite concerns over these other substantive issues, however, the concept of marriage itself still remains important to both individuals and society as a whole.

   Modern academic scholarship represents an infusion of reality into current thinking. However, as the intensity of the debate over same-sex marriage demonstrates, marital status remains of vital interest to many people. I do not suggest that it is the most important issue confronting scholars of the family, but it has and will continue to have significant relevance. (20) For many people, the choice of living in a marital status offers the advantage of commitment in a legally fostered and protected institution. For this reason alone, consideration of the nature of marriage remains important. I believe that the history of marriage has valuable lessons to teach us regarding how the law can evolve in regulating the family.

3. IS MARRIAGE A STATIC INSTITUTION?

   When the Massachusetts SJC announced that the state could not exclude same-sex couples from access to the license needed to enter a valid civil marriage (21) because such exclusion violated several articles of the Massachusetts Constitution, (22) the decision produced a political firestorm. Then Massachusetts Governor Mitt Romney denounced the decision by saying that the court had overturned "three thousand years of recorded history." (23) Apparently the Governor, himself a Mormon, was unaware that more than a century earlier this nation was so intensely divided on the definition of marriage that it actually resulted in a small civil war. (24) This struggle occurred because the Church of the Latter Day Saints initially refused to accept the majority view of marriage, which restricted the union to one between two people. It was only after decades of conflict that the Mormon Church finally accepted the majority idea of marriage as a monogamous union, and then only after intense conflict with the federal government. The early Republican Party argued that Congress had a duty to enforce the majority view of marriage as a monogamous institution through federal legislation. (25) It took a Supreme Court decision enforcing this concept of monogamous marriage, (26) a congressional enactment revoking the charter of the Church of Latter Day Saints, (27) and a federally mandated state constitutional prohibition on polygamy as a condition of Utah's admission to the Union to finally compel the acceptance of monogamy as the legal form of state-sanctioned civil marriage. (28)

   The intense controversy over polygamy demonstrates that civil marriage has been the subject of disagreement and religious conflict throughout American history. (29) Religious differences will likely continue to influence the debate over civil marriage in future years. The debate over polygamy reminds us, however, that even though the law has rejected polygamous marriages, some people in our society nevertheless continue to live in polygamous relationships. While common-law marriage may be recognized in only a few states today, informal unions between one man and two or more women are not...