What the Catholic Supreme Court Justices Get Wrong About Marriage

Arguments at the United States Supreme Court for Same-Sex Marriage on April 28, 2015. Photo courtesy flickr user Ted Eytan via Creative Commons.

Key among the concerns expressed by the Supreme Court’s Catholic justices in Tuesday’s hearings on same-sex marriage was the idea that the court would change the definition of marriage as it has existed for “millennia.”

“This definition [of traditional marriage] has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better’,” Justice Anthony Kennedy said.

“Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife,” said Chief Justice John Roberts.

“As far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex,” Justice Samuel Alito said.

Apart from Justice Ginsburg’s argument that until recently patriarchal marriage was the norm, what these justices are missing are the profound revisions that the definition of marriage has undergone at the hands of the Catholic Church.

According to historian John Boswell, for the first millennium of its existence the Catholic Church had no “coherent or obligatory liturgical tradition” regarding marriage. In fact, he says, “for its first thousand years Christianity required nuptial blessings only for priests; for the laity, an ecclesiastical ceremony was an honor, only permitted to those being married to their own (free) class the first time.”

The church’s teaching, in line with long-standing pagan practice, was that “the couple married each other: the church at most witnessed and blessed (as it blessed everything from fields to swords),” says Boswell.

The church began to regularize the procedure for marriage in the twelfth century, consisting of a betrothal, which was a promise to marry expressed before witnesses; the reading of the banns in the parish church (to ensure there were no objections, such as a prior commitment); and the couple solemnizing their union by exchanging consent at the church door. This was followed by consummation, which is what made the marriage indissoluble.

But even marriages that didn’t follow this form were valid, according to historian Jack Goody. “The betrothal followed by intercourse became marriage, even without being solemnized in church,” he wrote, noting that in the English city of Ely, some 70 percent of marriages were still private in the late 1300s. Only with the Council of Trent (1545–1563) “did the Catholic Church finally manage to impose its authority in this sphere by invalidating marriages that had not been performed in public before a parish priest.”

So the modern, Western form of marriage as a public union that must be solemnized by an ecclesiastical—or, later, a civil—official that the justices are so worried about upending is some 450 years old. If we’re going simply by the longevity of marital forms to argue against same-sex marriage, the Catholic justices would also have to account for the marriage-by-mutual-consent-solemnized-by-sex model in their deliberations, especially because, as Goody notes, the “notion of mutual consent” and the idea of a couple being bound by genuine affective ties was “intrinsic to the ecclesiastical model of medieval marriage.”

This was due less for concern about the couple’s happiness, or the well-being of any offspring, and more because it allowed the church to counter the secular model of arranged marriage, which focused on parents selecting their children’s marital partners to control patterns of inheritance. It was in the church’s interest to disrupt this secular, parental-controlled system as it “established its position as a power in the land … the largest landowner, a position it obtained by gaining control of the system of marriage.”

The cornerstone of the West’s understanding of marriage “for millennia” has been a relationship of mutual consent bound by deep ties of affection based on a pledge made by individuals to one another. It’s true, of course, that the assumption was of a man and woman, but surely there is room for same-sex couples in this definition? And regardless, it leaves the argument about changing the definition of marriage more than a little hollow.

  • Cat lady

    Yes. and no. Common law marriage which required no officiating or church blessing, but only living together and recognized as such by the neighborhood has been very common and is just now becoming passé. And then we have the changing role of women in marriage which until very recently, and still continuing in many cultures or subcultures, involved very few rights. Economic considerations held sway for centuries since women were unable to support themselves unless a male was involved.

  • Meshac

    “. . .the Catholic justices would also have to account for the marriage-by-mutual-consent-solemnized-by-sex model in their deliberations . . .” This argument overlooks the fact that what homosexuals do to achieve orgasm is not “sex” biologically speaking. Something that should be easily acknowledged by the members of the “party of science.”

  • Fired, Aren’t I

    LOL. When straight people give each other oral sex or use the “backdoor” or any NUMBER of acts that achieve orgasm but aren’t procreative intercourse, is that sex? This is exactly the type of thinking that leads fundie Christian teenagers to believe giving a blow job “won’t count” against their virginity-til-marriage pledge, cuz ya know, “it’s not really sex.”

    Nice try, but they tried similar arguments during the prop 8 trial without a shred of success – and then SCOTUS upheld the decision.

  • NancyP

    Marriage first and foremost was the most important mechanism for passing on land and goods to the next generation. Landless people (poor people) in ancient times didn’t undergo a legal marriage because they didn’t need and couldn’t afford a lawyer to draw up the contract or couldn’t afford the services of a priest. People forget that ancient and medieval documents concerning individual marriages were written by the 1% for the 1%, and that we really have very little data on the communally recognised but legally silent “common law marriage” equivalents of the 99%.

  • cgosling

    The Catholic Church speaks only for Catholics. Why should Catholic Supreme Court Judges make judgments based upon their religion concerning non Catholics or atheists? The Catholic Church has no more right to order those of another religion or no religion to do anything. It is true that Catholics who want same sex marriages don’t have the right to marriage within their church, but they should be able to have a civil ceremony, or just leave their church. In the past the Catholic Church has excommunicated or jailed or burned those who would follow its rules. The Supreme Court Justices are acting as if church rules take precedent over civil law. How ridiculous!

  • cgosling

    Meshac – Sex is not limited to having an orgasm. And, intercourse does not solemnize marriage for everyone. Think about it. Catholic sex morality applies to Catholics but not all religions.

  • F. X. Charet

    The way the justices referred to are being represented as well as the sources called upon falls short of offering an adequate discussion of same sex marriage before the Supreme Court. For instance, to call upon John Boswell’s controversial work as the source for the history of marriage in Christianity, skewed as it is in favour of normalizing homosexual practices in the church, is in itself problematic. Moreover, to fail to contextualize the understanding of same sex relations in Christianity in terms of the biblical background, so skillfully and thoroughly reviewed by Robert Gagnon in his The Bible and Homosexual Practice, is also shortsighted. In the end, clearly everyone brings a perspective to issues like same sex relations. No doubt the justices in question bring their own perspectives to the issue, and presumably their catholic backgrounds are part of this, but so also are their legal backgrounds and skills as representatives of the highest court in the land. To emphasize the former in the disparaging manner that is done in this piece and entirely neglect the latter is, to say the least, fairly shallow journalism who intentions it appears to be to play to the crowd and its prejudices. Ms. Miller your readers deserve better!

  • GeniusPhx

    Justices comment about marriage being the same for ’10 thousand years’ is ridiculous. Before the Jews wrote the torah in 700BC there was idol worship only. They (Canaanites) celebrated sex in religious settings, it was considered religious worship. If a woman or man didn’t produce children in a certain amount of time she was free to be with whomever she wanted. Promiscuity was the norm not the exception. When the jews wrote the ten commandments they outlawed the worship of idols in favor of their monotheistic god and outlawed adultery. Both were new to the church and to the people of the time. The ceremony and commitment wasn’t popular till 2000 years later.

    I’ll bet these judges think we were settled for religious freedom and are a christian country too, both are myths.

  • Frank

    Two people of the same sex can never make a marriage. Ever.

  • Frank

    It’s status quo here at RD.

  • PieRatz

    Great read thanks Patricia —-

  • Way to beg the question.

    Do you actually have substantive responses to the points made in the article?

  • You do realize that anyone can win an argument by stipulation. In this case, you have stipulated a meaning for the word “sex” that then confirms your position.

  • Frank

    It’s foolish?

  • By substantive, I mean a response to the substance of the arguments, not just the throwing of epithets.

  • NancyP

    It has been at least 10 years since I read Boswell’s book. As I recall, there was no mention of intercourse in the Orthodox rite he cites. The rite seemed to be in the “sworn brotherhood” category, present in a variety of cultures.

    I think that the time when one could proclaim marriage only valid between master and dependent woman has been gone so long that it is not likely to be revived as a cultural standard in the USA, no matter how much the conservatives try. Only lawyers and history geeks recognize the term “coverture”. The two types of state-sanctioned marriage, regular marriage (no-fault divorce available) and “covenant marriage” (divorce for limited causes and after a longer waiting period) turned out to be a huge flop, the huge majority of couples in the few states with covenant marriage opted for usual marriage. Marriage between equals has been here to stay for quite some time, and is the true turning point of the definition of marriage. Same-gender marriage is a lesser innovation, and is a natural outgrowth of marriage between equals.

    Scalia and Thomas are quite atypical as Catholic laity, at least those I see in the community. The local Catholic laity tend to ignore their bishops’ admonitions about the “sin” of voting for Democratic Party candidates.

  • Frank

    There was no compelling argument made. Sometime it’s best to simply throw out the whole thing.

  • NancyP

    Well yes, if the biological definition of “sex” means a reasonable chance of swapping genetic material (bacterial sex, responsible for antibiotic resistance) or procreation linked to mixing of genetic material (yeast through mammals). Of course the biological definition of “sex” includes rape and excludes the elderly heterosexual couple’s intercourse. “Sexual behavior” is different from and more variable than the successful mingling of genes between members of the same species.

  • Rev. Bob Salt

    As a professor of human sexuality for 27 years, I have to point out that your view of sex is widely off base and hardly scientific. Sexual activity is rarely about reproduction for human beings. Mostly sex is about affection, love, pleasure, binding, stress relief, hormonal urges, relationship dynamics, etc. the church’s big mistake over the years is its misunderstanding of human sexuality.

  • Rev. Bob Salt

    Bonding.

  • blestou

    Justice Sotomayor is Catholic. Can’t wait for the article about how “the Jews” on the court behaved (i.e. the other 3). This article is just another an anti-Catholic hit piece.

  • Jim Reed

    They asked for it when they started attacking our new health care system.

  • blestou

    So marginalize and attack them for their religious views, just like your bigot forefathers before you. How can you see the keyboard through that sheet on your head?

  • Jim Reed

    Their religious views shouldn’t be used to override the law.

  • blestou

    You’ve already revealed your true colors, Jim Reed. It’s going to be hard to backtrack now with some vague attempt at respectability.

    Even the attempt displays your invidious discrimination. No attempt to refute the substantive arguments of the individuals in the most selective job in America…just “they’re Catholic, so they must be bad.”

    Talk to a counselor about your irrational hatred, before you further radicalize and really hurt somebody.

  • Jim Reed

    For whatever reason, they did start this fight. We have real problems to solve. If we are being crushed by health care costs, we can take a clue from the rest of the world, and modernize our system. We know contraception can do a lot of social good for the nation, and that is one piece of our attempt to fix things. But the Catholics want a veto over whatever we decide to do, and they want the option to paralyze the nation if they don’t get their way. Again for whatever reason. I am just trying to take a clearheaded view of things.

  • blestou

    Paranoid conspiracy theories and irrational bigotry. Please, please get help.

  • Rmj

    I don’t know how passé common law marriage is. It’s still in the Family Code in Texas. And frankly, although I have a marriage license (somewhere!), in 38 years nobody in any state (and I’ve lived in three, besides Texas) has ever asked to see it to prove my assertion that I’m married to my wife.

    Which is pretty much the definition of common law marriage: that you present yourself as husband and wife to the general public. It always seemed to me it made more sense to recognize a marriage if the couple thinks they are married. The main interest of the State is the property (either in divorce or probate) and who is responsible for the minor children, anyway.

  • Rmj

    What views should they use? Or shall we amend the Constitution to insist only atheist Justices can be appointed? But then they will use their “religious” views to “override” the law, right?

    I mean, if you don’t like someone’s view, then it’s wrong, and everything they do is wrong; right?

    I’m no more concerned with Catholics on the Bench than I would be with Protestant fundamentalists on the bench. I’d no more accuse Scalia of “overriding” the law (a nonsense concept anyway) than I’d accuse a Muslim justice of imposing Sharia law on the rest of us.

    Scalia’s legal arguments are usually reprehensible, IMHO, but it’s not because he’s a Catholic.

  • Jim Reed

    The argument wasn’t about supreme court justices. It was about the Catholic church. Blestou said the article was an anti-Catholic hit piece. I said they (the church) started it by fighting against health care. I don’t think Catholic church views should be used to override the law. They can have whatever views they want but by opposing the US and psyching up their people to vote that way they are starting a political war. It is time to go to war against the church. We can’t let them ruin our way of life.

  • Jeffrey Samuels

    I think that the religious arguments are only a cover for the real problem religious conservatives have with gay people. Underneath it all, they consider gay men to be unmanly and gay women to be rebellious to the absolute authority of men. For thousands of years, they have murdered and tortured gay people, and in more modern times, have included imprisonment, beatings, bullying, discrimination and chemical castration as more ‘humane’.

    Now you have people saying that gay folk should have the same rights as them, and it is unacceptable on every level. They would think less of themselves if they couldn’t overtly show their absolute
    contempt for homosexuality. That is why the arguments against marriage
    don’t ever really hold up, since applying the same standards to any
    other group is patently illogical. Religious arguments
    are just the excuse since one can not argue against an idea that must be
    accepted on faith without question.

    The crux of the matter is that these people cannot accept a gay person living a happy, fulfilling life. For generations they have claimed that homosexuality has resulted in drug use, suicide, mental illness and early death. They will not/ cannot permit that perception to change without admitting that they are at fault for those conditions.

  • Jim ‘Prup’ Benton

    Actually, any ‘sexual’ act where one person uses the other’s body as a substitute for ‘hand and kleenex’ — which sadly describes too many marital ‘sexual’ acts is masturbation, not sex.
    That does not mean there is a necessity for an ’emotional involvement.’ There is absolutely nothing wrong per se in two or more people having sex simply for the sake of having sex.
    The key is realizing that ‘sex’ — by my admittedly idiosyncratic definition — involves both respect and, most importantly, a sharing of pleasure, not merely an enjoying of one own’s pleasure.
    To put it simply — but with a bit of censorship, and expressing a male orientation — ‘The first rule of sex education is that there is a person on either end of the sexual organ, After that, all else is mere details and technicality.’

  • Frank

    I think you need to go back to school.

  • ImTim

    It seems as though the author radically misunderstood the Justices’ comments.

    Justices Kennedy and Roberts noted that every definition they could find until very recently has been between a man and a woman. They did not argue that public recognition was an essential characteristic, nor did they argue that a specific liturgical or civil setting was necessary. the form of the ceremony (or even a lack of a ceremony) is of no concern to the Court. They simply argued that the definition of the term has not been same-sex…ever.

    The justices are not trying to enforce Catholic dogma on the United States, it is simply looking at the historical reality that marriage has been understood as between people of the opposite sex, and yes, it is true, that it has been so for millennia.

  • Jim Reed

    They are not going that way because they are Catholic. They are going that way because they are Republican.

  • Meshac

    An answer would be to cite some biology text or treatise refuting my statement. You are relying on common usage, not science.

    And SCOTUS did not uphold the lower courts on the Prop 8 case; SCOTUS ducked, dismissing the case on lack of standing.

  • Fired, Aren’t I

    It;s Frank, don’t feed him. I’d also recommend flagging his irrelevant and inflammatory comments.

  • Whirlwitch

    Biologically speaking, heterosexual intercourse is not the only definition of sex. Biologists studying sexual activity include a wide range of practices under that heading. Go read about the sex lives of cetaceans or primates, to cite a couple of the better-known examples. Also consider that even “sexual reproduction” often entails no intercourse at all – fish and plants manage it, for example.

    Your definition of sex is cultural, not biological, and culture varies and changes.

  • Boswell’s book, “Same-Sex Unions” would inspire the question that we should probably have explained Roman Catholic Church’s Office of Same-Sex Unions that also date back millennia all the way until the last few hundred years.

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  • RexTIII

    Definitely the ‘Openers’ for the Catholic Justice Team – outright lying while supporting the Voice of Religiosity & their not long ago minted phrase of ‘redefining marriage.’ The History of ‘Marriage’ – is a fascinating history and has nothing to do with what is ‘believed’ to be true about marriage by those who know nothing and those who propose to know everything. Listening to this portion of the Arguments was beyond disgusting given it’s complete irrelevance to the interests of the Court on any level.

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