Marriage is a universal human institution which has formed the foundation of the family throughout history. While the traditions surrounding marriage ceremonies, the rights and obligations of marriage, the way of choosing one's marriage partner, and even who one is permitted to marry may differ from culture to culture, the essential necessity of marriage has long been recognized economically, legally, spiritually, and socially as the primary social institution for raising children. It is widely recognized that marriage provides the proper setting for cultivating love between a man and a woman, and for the fulfillment of both.
Challenges to the institution of marriage in the twentieth century, although significant and with some limited validity, nonetheless failed to provide a viable alternative. Marriage is the prerequisite for building a family, and the family is the fundamental unit of human society. The future of human society appears to depend more on efforts to understand how to build healthy marriages than on promoting alternatives.
Marriage is usually understood as a relationship of mutual emotional support, merged economics, a mutually advantageous division of labor, procreation, and successful rearing of children. As anthropologist James Q. Wilson said, "In virtually every society, the family is defined by marriage; that is, by a publicly announced contract that makes legitimate the sexual union of a man and a woman" (Wilson 1993, 158) For these reasons, marriage is predominantly seen as being between one man and one woman. Most of the world's population lives in societies where marriages are overwhelmingly heterosexual and monogamous.
Religions in general endorse heterosexual and monogamous marriages. In the Christian tradition, a "one man one woman" model for the Christian marriage was advocated by Saint Augustine with his influential letter, "The Good of Marriage." In 534 C.E.Roman Emperor Justinian I criminalized all but monogamous man/woman sex within the confines of marriage. The Justinian Code was the basis of European law for 1,000 years. Christianity has continued to insist on monogamy as essential to marriage.
Globally, most existing societies have embraced heterosexual monogamy as the norm for marriage. However, most societies have at least some history of allowing polygamy, and some still do. Polygamy has usually been limited to polygyny—multiple wives—as opposed to polyandry—multiple husbands. The prevalence of polygyny can probably be explained by the need to ensure many offspring.
The state of matrimony
In modern times, the term "marriage" is generally reserved for a union that is formally recognized by the state. The phrase "legally married" can be used to emphasize this point. In most cases, receiving state recognition of a marriage involves obtaining a marriage license and is subject to certain laws.
In many societies, official approval for marriage may be given by either a religious or civil body. Sociologists thus distinguish between a "marriage ceremony" conducted under the auspices of a religion and a state-authorized "civil marriage."
In Europe the churches were traditionally responsible for make marriages official by registering them. Hence, it was a significant step towards a clear separation of church and state, and also an intended and effective weakening of the Christian churches' role in Germany, when Chancellor Otto von Bismarck introduced the Zivilehe (civil marriage) in 1875. This law made the declaration of the marriage before an official clerk of the civil administration (both spouses affirming their will to marry) the procedure to make a marriage legally valid and effective, and it reduced the clerical marriage to a mere private ceremony.
Civil marriages may be permitted in circumstances which are not allowed by many religions, such as same-sex marriages or civil unions. Marriage may also be created by the operation of the law alone as in common-law marriage, which is a judicial recognition that two people living as domestic partners are entitled to the effects of marriage. Conversely, there are examples of people who have a religious ceremony that is not recognized by the civil authorities. Examples include widows who stand to lose a pension if they remarry and so undergo a marriage in the eyes of God, homosexual couples, some sects of Mormonism which recognize polygamy, retired couples who would lose pension benefits if legally married, Muslim men who wish to engage in polygamy that is condoned in some situations under Islam, and immigrants who do not wish to alert the immigration authorities that they are married either to a spouse they are leaving behind or because the complexity of immigration laws may make it difficult for spouses to visit on a tourist visa.
The ceremony in which a marriage is enacted and announced to the community is called a wedding. A wedding in which a couple marries in the "eyes of the law" is called a civil marriage. Religions also facilitate weddings, in the "eyes of God." In many European and some Latin American countries, when someone chooses a religious ceremony, they must hold that ceremony separate from the civil ceremony. Certain countries, like Belgium and the Netherlands even legally demand that the civil marriage has to take place before any religious marriage. In some countries, notably the United States, the United Kingdom, the Ireland, and Spain, both ceremonies can be held together; the officiant at the religious and community ceremony also serves as an agent of the state to enact the civil marriage. This does not mean that the state is "recognizing" religious marriages, just that the "civil" ceremony takes place at the same time as the religious ceremony. Often this involves simply signing a register during the religious ceremony. If that civil element of the full ceremony is left out for any reason, in the eyes of the law, no marriage took place, irrespective of the holding of the religious ceremony.
In many jurisdictions, the civil marriage ceremony may take place during the religious marriage ceremony, although they are theoretically distinct. In most American states, the marriage may be officiated by a priest, minister, or religious authority, and, in such a case, the religious authority acts simultaneously as an agent of the state. In some countries, such as France, Germany and Russia, it is necessary to be married by the state before having a religious ceremony.
Some countries, such as Australia, permit marriages to be held in private and at any location. Others, including England, require that the civil ceremony be conducted in a place specially sanctioned by law (i.e. a church or registry office), and be open to the public. An exception can be made in the case of marriage by special emergency license, which is normally granted only when one of the parties is terminally ill. Rules about where and when persons can marry vary from place to place. Some regulations require that one of the parties reside in the locality of the registry office.
The way in which a marriage ceremony is enacted has changed over time, as has the institution of marriage itself. In Europe during the Middle Ages, marriage was enacted by the couple promising verbally to each other that they would be married to each other; the presence of a priest or other witnesses was not required if circumstances prevented it. This promise was known as the "verbum." As part of the Reformation, the role of recording marriages and setting the rules for marriage passed to the state. By the 1600s, many of the Protestant European countries had heavy state involvement in marriage.
Many societies provide for the termination of marriage through divorce. Marriages can also be annulled, or cancelled, which is a legal proceeding that establishes that a marriage was invalid from its beginning.
Rights and obligations relating to marriage
Typically, marriage is the institution through which people join their lives together in emotional and economic ways through forming a household. It often confers rights and obligations with respect to raising children, holding property, sexual behavior, kinship ties, tribal membership, relationship to society, inheritance, emotional intimacy, and love.
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Traditionally, marriage has been a prerequisite for starting a family, which then serves as the building block of a community and society
Traditionally, marriage has been a prerequisite for starting a family, which then serves as the building block of a community and society. Thus, marriage not only serves the interests of the two individuals, but also the interests of their children and the society of which they are a part.
In most of the world's major religions, marriage is traditionally a prerequisite for sexual intercourse. Unmarried people are not supposed to have a sexual relationship, which is then called fornication and is socially discouraged or even criminalized. Sexual relations with a married person other than one's spouse, called adultery, is even less acceptable and has also often been considered a crime. This is especially true in the case of a person who is a representative of the government (such as a president, prime minister, political representative, school teacher, or military officer).
Marriage may also carry the following rights and obligations, although no society has all, and none are universal:
- establishing the legal father of a woman's child
- establishing the legal mother of a man's child
- giving the husband or his family control over the wife's sexual services, labor, and/or property
- giving the wife or her family control over the husband's sexual services, labor, and/or property; establishes a joint fund of property for the benefit of children
- establishing a relationship between the families of the husband and wife.
Marriage and religion
Religious views of marriage
Many religions have extensive teachings regarding marriage. In the Christian tradition, marriage is to be a union of mutual love and support. God created the institution of marriage when He gave the first woman to the first man. Marriage can only be the union of one man and one woman. The Bible states in Genesis 2:24, “Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.” Though the wife is commanded to submit to her husband, the husband is commanded to love his wife even to the point of giving up his life for her. The Apostle Paul writes in Ephesians 5:22-31:
- Wives, submit to your own husbands, as to the Lord. For the husband is the head of the wife even as Christ is the head of the church, his body, and is himself its Savior. Now as the church submits to Christ, so also wives should submit in everything to their husbands. Husbands, love your wives, as Christ loved the church and gave himself up for her, that he might sanctify her, having cleansed her by the washing of water with the word, so that he might present the church to himself in splendor, without spot or wrinkle or any such thing, that she might be holy and without blemish. In the same way husbands should love their wives as their own bodies. He who loves his wife loves himself. For no one ever hated his own flesh, but nourishes and cherishes it, just as Christ does the church, because we are members of his body. Therefore a man shall leave his father and mother and hold fast to his wife, and the two shall become one flesh. This mystery is profound, and I am saying that it refers to Christ and the church. However, let each one of you love his wife as himself, and let the wife see that she respects her husband.
Most Christian churches give some form of blessing to a marriage; the wedding ceremony typically includes some sort of pledge by the community to support the couple's relationship. In the Roman Catholic Church, "Holy Matrimony" is considered to be one of the seven sacraments and has been so since the twelfth century. The sacrament is one that the spouses bestow upon each other in front of a priest and members of the community as witnesses during a "Nuptial Mass." This is also true of other Orthodoxies, where marriage is defined as a relationship between a man and a woman. In the Eastern Orthodox church, it is one of the "Mysteries," and is seen as an ordination and a martyrdom. In marriage, Christians see a picture of the relationship between Jesus and the Church. The Protestant Reformation reformulated marriage as a life-long covenant that should not be entered into lightly.
In Judaism, marriage is viewed as a coming together of two families, therefore prolonging the religion and cultural heritage of the Jewish people. Islam also recommends marriage highly; among other things, it helps in the pursuit of spiritual perfection. The Bahá'í Faith sees marriage as a foundation of the structure of society, and considers it both a physical and spiritual bond that endures into the afterlife. Hinduism sees marriage as a sacred duty that entails both religious and social obligations. By contrast, Buddhism does not encourage or discourage marriage, although it does teach how one might live a happily married life.
Religious views of the end of marriage
It is also worth noting that different religions have different beliefs regarding the breakup of marriage. For example, the Roman Catholic Church does not permit divorce, because in its eyes, a marriage is forged by God. The Church states that what God joins together, humans cannot put asunder. As a result, people who obtain a civil divorce are still considered married in the eyes of the Catholic Church, which does not allow them to remarry in the Church, even if they participate in a civil marriage. In some special cases, however, Catholics can be permitted an annulment, which declared the marriage to be invalid.
Islam does allow divorce; however, there is a verse stated in the Qur'an describing divorce as the least desirable act allowed between people. The general rule is for a man to allow his wife to stay until the end of her menstrual period or for three months, if she so wishes, after the divorce. During this period they would be divorced in that they would simply be living under the same roof but not functioning as man and wife. The Qur'an scholars suggest that the main point is to prevent any decisions by the woman from being affected by hormonal fluctuations, as well as to allow any heated arguments or differences to be resolved in a civil manner before the marriage is completely terminated. However, there is no obligation on the woman to stay; if she so wishes she may leave. The man is also obligated to give his wife a gift or monetary sum equivalent to at least half her mahr (gift or monetary sum which is given to the wife at the commencement of the marriage). Specific conditions as to how a divorce is conducted also apply if a woman is pregnant, or has given birth just prior to the divorce.
Marriages are typically entered into with a vow that explicitly limits the duration of the marriage with the statement "till death do you part." However, the Church of Jesus Christ of Latter-day Saints (the Mormons) have a distinctive view of marriage called "Celestial marriage," wherein they believe that worthy individuals can enter into a marriage relationship that endures beyond death. The Unification Church of Reverend Sun Myung Moon also asserts that marriage is eternal.
Marriage and economics
The economics of marriage have changed over time. Historically, in many cultures the family of the bride had to provide a dowry to pay a man for marrying their daughter. In other cultures, the family of the groom had to pay a bride price to the bride's family for the right to marry the daughter. In some cultures, dowries and bride prices are still demanded today. In both cases, the financial transaction takes place between the groom (or his family) and the bride's family; the bride has no part in the transaction and often no choice in whether or not to participate in the marriage.
In most subsistence societies, children are a financial asset because they can work in the family farm or business. In modern urban industrial life, children have become viewed as an economic liability and as preventing both parents from working. As a result, adults are choosing to have less children causing families to be much smaller, and sometimes just the husband and wife.
In many modern legal systems, two people who marry have the choice between keeping their property separate or combining it. In the latter case, called community property, when the marriage ends by divorce each owns half. If one partner dies, the surviving partner owns half, and for the other half, inheritance rules apply.
In some legal systems, the partners in a marriage are "jointly liable" for the debts of the marriage. This has a basis in a traditional legal notion called the "Doctrine of Necessities" whereby a husband was responsible to provide necessary things for his wife. The respective maintenance obligations during and eventually after a marriage, such as alimony, are regulated in most jurisdictions.
Whom one may marry—exogamy and endogamy
Societies have always placed restrictions on marriage to close relatives, though the degree of prohibited relationship varies widely. In almost all societies, marriage between brothers and sisters is forbidden and termed incest. Ancient Egyptian, Hawaiian, and Inca royalty are the rare exception, with this privilege being denied commoners. Thus it may be understood as having served to concentrate wealth and power in one family. In many societies, marriage between some first cousins is preferred, while at the other extreme, the medievalCatholic church prohibited marriage even between distant cousins. The present day Catholic Church still maintains a standard of required distance (in both consanguinity and affinity) for marriage. Genetically, these practices have proven to be healthy for society.
In the IndianHindu community, especially in the Brahmincaste, marrying a person of the same Gothra is prohibited, since persons belonging to the same Gothra are said to have identical patrilineal descension. In ancient India when Gurukul was in existence, the shishyas (the pupils) were advised against marrying any of Guru's children as shishyas were considered Guru's children and it would be considered marriage among siblings.
Many societies have also adopted other restrictions on whom one can marry, such as prohibitions on marrying persons with the same family name (surname), or persons with the same sacred animal. In Uganda, people are exhorted to marry outside of their own clan. In South Korea it is generally considered taboo for a man to marry a woman if they both have the same family name. A large percentage of the total South Korean population has the surname "Kim" (an estimated 20 percent; rendering 20 percent of the Korean population ineligible for marriage to each other).
Anthropologists refer to these sorts of restrictions, limiting whom one may marry, as exogamy. It has been suggested that the incest taboo may serve to promote social solidarity.
Societies have also at times required marriage from within a certain group. Anthropologists refer to these restrictions as endogamy. An example of such restrictions would be a requirement to marry someone from the same tribe. Racist laws adopted by some societies in the past, such as Nazi-era Germany, apartheid-era South Africa and most of the southern United States and Utah prior to 1967, which prohibited marriage between persons of different races (miscegenation) could also be considered examples of endogamy.
Love and marriage
Most cultures agree that love in marriage is desirable and important. The question of when and how love enters a marriage is less agreed upon. In the Western romantic tradition, a couple meets, falls in love, and marries on the basis of their love. In many Eastern cultures, the marriage between a man and a woman is arranged by parents, elders, religious leaders, or by consensus. It is expected that if both parties live up to their obligations and practice their religion faithfully enough throughout the marriage, love will grow up between them.
Arranged marriages have been practiced in many parts of the world and continue today in some cultures, for example among Hindus and Orthodox Jews. Those who uphold arranged marriage frequently state that it is traditional, that it upholds social morals, and that it is good for the families involved, as there is widespread acceptance of the marriage and an understanding that the marriage is between two families, not only two individuals. They also have some traditional criticisms of romantic marriage, saying that it is short-term, overly based on sexual lust, or immoral. Questioned about such practices, young people participating in arranged marriages often express trust in their parents, who love them and want the best for them and who will choose a good partner for them. They also point to the high divorce rate in Western romantic marriages.
Defenders of romantic marriage would hold that it is preferable to achieve an emotional bond before entering into a lifelong commitment. They speak of the mysterious quality of love that cannot be defined, contained, forced or manufactured. Compatibility is emphasized, which may be where the idea of "trial marriages"—cohabitation undertaken to test out a couple's compatibility, including sexual compatibility—developed.
In the Americas and Europe, the prevailing view toward marriage today and for many centuries has been that it should be based on emotional attachment between the partners and entered into voluntarily. The idea of marriage being based upon emotional attachment, however, allows for divorce and remarriage to be easily undertaken when emotional attachment has changed or faded. It has led to a prevalence of what is called "serial monogamy." Serial monogamy involves entering into successive marriages over time. Serial monogamy is not looked upon with the same favor as lifelong marriage to one partner; however, it is considered morally preferable to sex outside of marriage, which is generally frowned upon, whether it is adulterous or premarital.
Those who believe in romantic marriage will often criticize arranged marriages, even expressing horror at the idea. They consider it oppressive, inhuman, or immoral. Defenders of arranged marriage disagree, often pointing to cultures where the success rate of arranged marriages is seen to be high, and holding that nearly all couples learn to love and care for each other deeply.
Studies of altruism and empathy indicate that people who have strong altruistic feelings toward others in general enjoy "very happy" marriages (University of Chicago's National Opinion Research Center (NORC) report, 2006). Those who cultivate an altruistic, even self-sacrificing, attitude toward their spouses also report "very happy" marriages. The study points out that marital love is both built upon and fosters altruistic love—an idea that is common in many religions. These findings would seem to affirm that if the partners in arranged marriages practice and uphold the tenets of their religion—most of which emphasize altruistic love—they will grow together in love for one another as well.
Given that the marriage ceremony is one of the most important rites of passage in most cultures, it is to be expected that a certain amount of preparation is involved. Traditionally, preparation for marriage has involved family, church, and community. Children learn the knowledge and skills to manage a household and support a family from their parents and extended family. When children are raised in communities where their parents and most other adults are married, such practical preparation for marriage occurs naturally.
Spiritual guidance, as well as guidance in relationship development and life skills, may be offered or even required in order to be married in a religious ceremony. The Catholic church, for example, requires couples to attend a marriage preparation workshop, often called a "Pre-Cana," as well as private meetings with the priest to prepare the wedding liturgy and ensure that all the Canon law requirements have been met.
The state also has certain requirements in order to legalize a marriage, which in most countries involves obtaining a marriage license. Requirements vary, although they typically include many or all of the following: proof of identity, age, residency, a waiting period (which may be as short as one day), parental approval if under a particular age (typically sixteen or eighteen years), a blood test for venereal disease, and payment of a fee. In some cases, the fee and waiting period may be reduced or waived if couples complete an approved marriage preparation course.
While some have argued that prior sexual experience prepares one for the conjugal relationship, in reality this has not been shown to be true. The majority of religions, and an increasing number of psychologists and marriage professionals, recognize that the sexual relationship has life changing consequences for those involved. Apart from the potential for pregnancy and sexually transmitted diseases including AIDS, sexual activity has an emotional and spiritual impact. Once a sexual relationship has been entered into, there is no return to the previously pure state of relating like brother and sister. For this reason, maintaining one's virginity prior to marriage is considered a key component of successful marriage preparation. Programs such as the Christian "True Love Waits" encourage young people to make sexual abstinence part of their marriage preparation by signing this pledge:
- Believing that true love waits, I make a commitment to God, myself, my family, my friends, my future mate, and my future children to a lifetime of purity including sexual abstinence from this day until the day I enter a biblical marriage relationship.
Building healthy marriages
With the erosion of marriage in the twentieth century, support for couples preparing for marriage, and continued support during the marriage, is no longer available naturally through their family and community. Instead, couples wishing to build a healthy marriage may participate in programs sponsored by their local church, or by professional marriage counselors.
Key issues that marriage counselors address include sexual relations, relationships with in-laws particularly between the mother-in-law and daughter-in-law, finances, and parenting styles in raising their children. Conflicts also occur when one or both of the spouses have personal problems, such as drug abuse or alcoholism.
Successful marriages take commitment and investment on the part of both spouses. To be successful, marriage partners need to have reached a level of individual maturity, such that they have clarified their own life goals and developed their talents and character sufficiently to be able to pursue them, and to have experienced harmonious relationships with others, such as their parents, extended family members, siblings, and peers. Without this type of foundation, even the most passionate feelings of love are not enough to build a healthy marriage.
Just as sexual purity is considered by many an important part of marriage preparation, fidelity between husband and wife is important in building and maintaining a healthy marriage. Adultery has been condemned by many religions, criminalized by many societies, and has led to the downfall of many great historical figures as well as the breakdown of numerous marriages. Healthy marriages are based on trust and commitment; "cheating" on one's spouse violates this relationship in an unforgettable fashion.
Marriage and family
Main article: Family
The purpose of marriage is, ultimately, not just for the sake of the man and woman who participate in the union, it is the road to the next generation, children, and the continuation of one's lineage. The conjugal relationship of husband and wife is the emotional and physical foundation for building a family, in which children, produced through the love of man and woman, are nurtured and protected until they reach maturity, and embark on their own lives, which also involve the continuation of the lineage.
The family, formed through the marriage of man and woman and resulting in children, is a universal institution in human life:
- As far back as our knowledge takes us, human beings have lived in families. We know of no period where this was not so. We know of no people who have succeeded for long in dissolving the family or displacing it.... Again and again, in spite of proposals for change and actual experiments, human societies have reaffirmed their dependence on the family as the basic unit of human living—the family of father, mother and children (Mead & Heyman 1965, 77-78).
Civilized society is built upon the family: "the family is the culture-creating institution par excellence" (Berger 1998, 43). Children naturally inherit not only their physical characteristics as well as physical and material wealth, they also receive their social heritage from their biological parents. The family, therefore, is the social structure most effective in passing on traditions, beliefs, and values from one generation to the next.
Beyond the benefit received through these different types of inheritance, children raised in a stable family by their married parents, have been found, on average, to be "physically and mentally healthier, better educated, and later in life, enjoy more career success than children in other family settings" (Waite & Gallagher 2000, 124). On the other hand, children of divorce, single-parent families, and step-families are considerably more likely to have emotional and behavioral problems—they sometimes fail to graduate high school, abuse drugs and alcohol, engage in sexual activity as teenagers, suffer unwanted pregnancies, are involved in violence and crime, avoid marriage and child-bearing, get divorced, and commit suicide at higher rates than those raised by two married parents.
Good marriages and the resulting families have been, and continue to be, essential to the social fabric of human society. Without marriage there is no stability in the family, and without stable families the next generation is at grave risk in all aspects of life.
Challenges to traditional assumptions about marriage
In the latter decades of the twentieth century many traditional assumptions about the nature, purpose, and definition of marriage and family were challenged. These challenges ran parallel to dramatic increases in divorce (from 6 percent to over 40 percent of first marriages), cohabitation without marriage, a growing unmarried population, and children born outside of marriage (from 5 percent to over 33 percent of births), as well as an increase in adultery (8 percent to over 40 percent).
Just a "piece of paper"? Cohabitation as an alternative to marriage
Cohabitation is on the rise worldwide. It has been argued that marriage may be an unnecessary legal fiction—the proverbial "piece of paper"—and that living together is just as viable an option for men and women who wish to have a sexual relationship. Studies show, however, that marriage differs considerably from cohabitation. People who live together before they marry are much more likely to divorce later on than people who did not live together before their marriage. In some countries, like Sweden, the divorce rate for women who cohabited before marriage is 80 percent higher than for women who did not cohabit before marriage (Bennett, Blanc, and Bloom 1988). These findings have been repeated in other countries. What is more, cohabitation does not bring the same benefits to children's well-being as marriage does. In England, one study showed that children who lived with cohabiting rather than married parents are twenty times more likely to become victims of child abuse (Whelan 1993). Children of cohabiting couples also experience more poverty and disruption in their future relationships.
The feminist critique
Feminists have argued that marriage was part of patriarchy and designed to oppress and abuse women. Some social scientists agreed, seeing traditional marriages and the families formed under them as dysfunctional almost by definition. Divorce was seen as a step toward liberation.
There is, no doubt, much truth to the criticism that marriage was part of the general oppression of women. In many areas of the world, when a woman was in her early teens her father arranged a marriage for her in return for a bride price, sometimes to a man twice her age who was a stranger to her. Her older husband then became her guardian and she could be cut off almost completely from her family. The woman had little or no say in the marriage negotiations, which might even have occurred without her knowledge.
Some traditions allowed a woman who failed to bear a son to be given back to her father. This reflected the importance of bearing children and extending the family to succeeding generations.
Often both parties have expected to be virgins before their marriage, but in many cultures women were more strictly held to this standard. One old tradition in Europe, which survived into the twentieth century in rural Greece, was for this to be proven by hanging the bloody bed sheet from the wedding night from the side of the house. Similarly, sexual fidelity is very often expected in marriage, but sometimes the expectations and penalties for women have been harsher than those for men.
In some traditions marriage could be a traumatic, unpleasant turn of events for a girl. "The Lot of Women" written in Athens in the mid fifth century B.C.E. laments this situation:
- Young women, in my opinion, have the sweetest existence known to mortals in their father's homes, for their innocence always keeps children safe and happy. But when we reach puberty and can understand, we are thrust out and sold away from our ancestral gods and from our parents. Some go to strange men's homes, others to foreigner's, some to joyless houses, some to hostile. And all this once the first night has yoked us to our husband we are forced to praise and say that all is well.
On the other hand, marriage has often served to assure the woman of her husband's continued support and enabled her to focus more attention on the raising of her children. This security has typically been greater when and where divorce has been more difficult to obtain.
Although in some cultures marriage has led to the abuse of women, in fact, modern women and their children are more likely to be abused in a cohabitation situation or by members of a stepfamily they have become part of after a divorce. The data pouring in, even through some former advocates of "no-fault" divorce like Judith Wallerstein, strongly show that children's well-being depends heavily upon the long-term, committed involvement of their biological parents with one another and with them. There is a growing consensus among social scientists that society cannot exist without a substantial mass of intact marriages and families built on the traditional model—that is, mutually monogamous marriage between one man and one woman who then care for and raise their children together.
Alternatives to traditional marriages
Some people have chafed under the constraints of monogamy and advocated "open marriages" or "swinging" as an alternative to traditional marriage. They have agreements with their spouses that permit other intimate relationships or sexual partners without considering this the abrogation of the marriage. However, as psychologistCarl Rogers noted and James Q. Wilson also stressed, dealing with such arrangements without jealousy, emotional pain, and severe misunderstandings is highly problematic for most people.
Gay rights advocacy groups have disagreed with the notion that marriage should be exclusively between a man and a woman. Due to their lobbying efforts, same-sex marriages are now legal in some countries such as Belgium, the Netherlands, Spain, and Canada. Same-sex unions have been recorded in the history of a number of cultures, but marriages or socially-accepted unions between same-sex partners were rare or nonexistent in other cultures. Same-sex marriage remains infrequent worldwide.
"Civil unions" are recognized in Denmark, Norway, Sweden, Finland, Greenland, Iceland, Germany, France, Portugal, New Zealand, the United Kingdom, and certain states in the United States. Also, various localities recognize domestic partnerships, which offer parity of spousal rights, to different degrees, with marriage.
Legal response to challenges to marriage
These developments have created a political backlash, most notably in Great Britain, where the Church of England has officially banned gay marriage, and in the United States, where several states have specifically outlawed same-sex marriage, often by popular referenda.
At the United States federal level, the Defense of Marriage Act (DOMA) of 1996 created a federal definition of marriage as between a man and a woman, as well as allowing states to refuse to recognize a same-sex marriage recognized by another state.
The individual and social benefits of marriage
Sociologist David Courtwright maintains that violence and crime are directly related to men remaining single. He suggests that marriage channels male aggressiveness into positive social roles—such as supporting and rearing a family—and validates masculinity in a way that negates the need for "honor killings" and other violent behavior. Married men have more reason for self-control. They avoid fights, consume less alcohol and drugs, and stay steadily employed. They are stakeholders in a community they want to be stable for their wives and children. Indeed, Courtwright relates the most violent eras and locations in United States history to a prevalence of single males. He cites the examples of the Gold Rush in the wild West, where a dearth of females in the early years meant skyrocketing homicide rates, and the modern urban ghetto where marriage is not a norm and where many single young men behave in dangerous, destructive, and self-destructive ways (Courtwright 1998).
In her seminal book, The Case for Marriage, Linda J. Waite, professor of sociology at the University of Chicago, maintains that married people are emotionally, psychologically, and physically healthier than their divorced, bereaved, or single counterparts. When illness of any sort does occur, married people recover more quickly and thoroughly than those without a supportive partner. Married couples in cross-cultural studies are also better off financially than their divorced, bereaved, or single counterparts. Social scientists in the United States have increasingly found that married-to-one-another parents provide for their biological children's well-being in ways that no other social structure has yet to attain.
Marriage has been found to contribute to social stability in other countries as well. Studies in England and Germany have shown that rising divorce rates led young men into increased criminality, drug abuse and general disorder. Crime rates in general have been shown to be directly related to the state of marriage in a community: the more divorced people, single parents and single people in communities, the higher the crime rates.
AnthropologistMargaret Mead once quipped, "The problem in any society is what to do with the men." Socially speaking, the best answer seems to be: marry them.
Although the institution of marriage came under attack in the latter part of the twentieth century, a successful alternative has not been found. In fact, the very reasons given to reject marriage, such as to end the abuse of women and children and to give freedom to achieve personal happiness, seem to have backfired. Married couples have been shown to enjoy greater personal happiness, better health, longer lives, and to suffer less abuse than those in cohabiting or uncommitted relationships. Children raised in families by their biological, married parents show higher levels of achievement in all areas of life and are at less risk for physical, psychological, and social problems than children of divorced or single-parent families.
As Auguste Comte wrote, the family is the most fundamental social unit, the prototype of all other human associations. It is out of marriages that families and communities arise. Marriage is the place to experience sexual love between man and woman, give birth to new life, and establish one's lineage for the future. As energy is invested in the maintenance of marriages, families, and the communities they both require and build, society is propelled forward in civil, nurturing, and benevolent ways.
- Bennett, Neil G., Ann Kilmas Blanc, and David E. Bloom. 1988. "Commitment and the Modern Union: Assessing the Link between Premarital Cohabitation and Subsequent Marital Stability." American Sociological Review 53: 127-138.
- Berger, Brigitte. 1998. "The Social Roots of Prosperity and Liberty." Society March-April 1998: 43.
- Blakeslee, Sandra and Judith Wallerstein. 1989. Second Chances: Men, Women, and Children a Decade after Divorce. Boston, MA: Ticknor & Fields. ISBN 0899196489
- Bohannan, Paul, and John Middleton (eds.). 1968. Marriage, Family, and Residence. Garden City, NY: Natural History Press. ASIN B000NPJBIY
- Courtwright, David. 1998. Violent Land: Single Men and Social Disorder from the Frontier to the Inner City. Cambridge, MA: Harvard University Press. ISBN 978-0674278714
- Dennis, Norman. 1997. "Europe's Rise in Crime," The World and I 12 (October 1997).
- Flewelling, Robert, et.al. 1990. "Family Structure as a Predictor of Initial Substance Abuse and Sexual Intercourse in Early Adolescence." Journal of Marriage and the Family 52 (February 1997): 17-18.
- International Educational Foundation. 2002. "Building Healthy Marriages" Volumes 8, 9, and 10 in series Searching for Life's True Purpose: Perspectives on Morality and Ethics.
- Mead, Margaret, and Kent Heyman. 1965. Family. New York, NY: Macmillan. ISBN 0025836900
- Saunders, Alan, and June Saunders. 2004. The Centrality of Marriage and Family in Creating World Peace. Tarrytown, NY: Interreligious and International Federation for World Peace.
- Seidel, Dietrich F., and Jennifer P. Tanabe. 2017. Unification Insights into Marriage and Family: The Writings of Dietrich F. Seidel. Raleigh, NC: Lulu. ISBN 1365592340
- Smith, Tom W. 2006. Altruism and Empathy in America National Opinion Research Center (NORC), University of Chicago. Retrieved February 22,2017.
- Waite, Linda J. and Maggie Gallagher. 2000. The Case for Marriage. New York, NY: Doubleday. ISBN 0767906322
- Whelan, Robert. 1993. Broken Homes and Battered Children. London: Family Education Trust. ISBN 978-0906229118
- Wilson, James Q. 1993. The Moral Sense. New York, NY: The Free Press. ISBN 0684833328
- Wilson, James Q. 2002. The Marriage Problem. New York, NY: HarperCollins. ISBN 006093526X
All links retrieved February 12, 2017.
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Should Civil Marriage Be Opened Up to Multiple Parties?
In this Essay, we argue that civil marriage should not be opened up to multiple parties. Our focus is on civil, not religious, marriage, and we address polygamy in general, rather than any particular form of it. We highlight the important distinction between opening up civil marriage to multiple parties on one hand and recognizing valid foreign polygamous marriages on the other. We contemplate how a country can coherently recognize valid foreign polygamous marriages, while at the same time decline to open up civil marriage to multiple parties.
We distinguish decriminalization of polygamy, which we advocate, from opening up civil marriage to multiple parties. We then explain why we believe the rights of children should be a non-issue in deciding whether civil marriage should be opened up to multiple parties.
We consider the state’s continuing interest in marriage in the context of changing social norms and legal developments and conclude that there is a compelling state interest in preserving and supporting civil marriage as a monogamous institution.
We formulate the symposium question as whether to open up civil marriage to multiple parties. We have three reasons to formulate the question this way. First, we intend to signal that we address only civil marriage law and not religious law in this Essay. The marriage and divorce laws of the various religions are not changed by amendments to the state’s civil laws. In our country, Canada, civil marriage has been opened up to same-sex partners, and divorce is available on the basis of separation of the spouses for one year. Nevertheless, adherents to faiths with marriage and divorce laws that differ from the civil law may refrain from entering into a same-sex marriage or seek a religious as well as a civil dissolution of their marriage. And the civil law does not affect religious law or the ability of adherents to submit themselves to that law.
The civil law does, however, prevent parties from entering into polygamous marriages, and this prohibition applies equally to adherents of faiths that permit polygamy. The marriage laws of monogamous countries such as Canada and the United States do not permit polygamy. A legally married person cannot take an additional spouse unless the existing marriage is dissolved by death or divorce. The result of a legally married person going through a form of marriage with a third party is a legal nullity. Furthermore, parties to polygamous “marriages” may be subject to criminal sanctions. Thus, opening up civil marriage to multiple parties (and presumably repealing criminal sanctions against polygamy) would enable some religious adherents to practice polygamy in accordance with what is permitted by their faith. But, as we have noted above, it would not change any religious laws.
A second reason for our particular formulation of the question is to emphasize that we do not address any particular existing forms of polygamy. Countries that permit polygamous marriages do so in accordance with particular religious or customary laws, most of which allow men to take more than one wife. Given the principle of sex equality and prohibition on sex discrimination, it is very unlikely that Canada or any other Western country would introduce any of these religious or customary forms of polygamy. Rather than considering whether any existing form of polygamy should be adopted, we discuss whether multiple parties of any sex or combination of sexes should be permitted to enter into a civil marriage.
Finally, our formulation of the symposium question avoids any reference to “recognizing” polygamous marriages. By doing so, we hope to avoid any confusion between opening up civil marriage to multiple parties on one hand and, on the other hand, recognizing valid foreign polygamous marriages. We have argued elsewhere that recognition of valid foreign polygamous marriages should be continued and indeed expanded. But this assertion should not be confused with support for opening up civil marriage to multiple parties. We elaborate on this important distinction in Part II.
I. Opening up Civil Marriage Versus Recognizing Foreign Marriages
Canada and many other monogamous countries have a long history of recognizing valid foreign polygamous marriages for various purposes. The question is not the parties’ ability to marry but instead the consequences of a marriage that has taken place elsewhere. Every country has its own marriage laws and its own rules regarding recognition of foreign marriages. The rules of recognition vary, but generally, countries apply the rule of lex loci celebrationis (the law of the place of celebration) or the “personal law of each party,” that is, the law that defines the personal status of each party. Countries that determine validity of marriage in accordance with personal law vary in approach. Some, including Canada, apply the law of each party’s ante-nuptial domicile, some apply the law of each party’s nationality, and some apply the law of each party’s habitual residence. Generally, the principle of “universality” is applied to marital status: a status validly acquired under the forum’s choice of law rule will be recognized everywhere.
An exception to the principle of universality applies when recognition of a foreign marriage would manifestly violate a country’s public policy. The public policy exception is narrowly defined. An English court, when considering whether to recognize a foreign marriage between an uncle and a niece that would have been within the prohibited degrees of consanguinity under English marriage law, said that “it would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation.” Generally, monogamous countries have not adopted a blanket rule that foreign polygamous marriages violate public policy in this narrow sense.
A foreign marriage may be recognized for some purposes but not others. It is important in this regard to distinguish between “status” and “the incidents of status.” R.H. Graveson defined status as
a special condition of a continuous and institutional nature, differing from the legal position of the normal person, which is conferred by law and not purely by the act of the parties, whenever a person occupies a position of which the creation, continuance or relinquishment and the incidents are a matter of sufficient social or public concern.
These “incidents” are the “special rights, duties, privileges or incapacities” that flow from the status of marriage. For example, a party to a valid subsisting marriage lacks the capacity to marry in monogamous countries but does have relational rights and obligations such as the right to claim and liability to pay spousal support.
Some incidents of marriage may not be extended to foreign polygamous marriages that are recognized as valid under the forum’s choice of law rules: “[A]cceptance of the principle of recognition of status does not of itself imply that all the incidents of that status will be recognised.” For example, in the well-known 1866 case, Hyde v. Hyde, an English court refused to recognize a Utah polygamous marriage for the purpose of granting a divorce, while at the same time suggesting that the marriage could be recognized for such purposes as succession law. Other examples of specific incidents of marriage that could be extended, without extending all incidents of marriage, include the recognition of spouses’ economic interests, support rights, or rights of one spouse to a share of the other’s property.
Furthermore, most monogamous countries have enacted mandatory laws that expressly prohibit immigration by those in polygamous marriages. Refusal to extend particular incidents of marriage has not required that there be a blanket refusal to recognize the validity of a foreign polygamous marriage that satisfies the forum’s choice of law rules.
How can the long history of extending recognition to foreign polygamous marriages that are valid under the forum’s choice of law rules coexist with the “cultural commitment to monogamous marriage” that is a feature of monogamous countries? Joost Blom explained the apparent anomaly between the public policy against permitting polygamy on one hand and the application of the universality of status principle to polygamous marriage on the other:
A polygamous marriage cannot be entered into in England, and the laws that say so can be described as founded on public policy in the private international law sense. However, English law has long regarded parties who were validly, albeit polygamously, married elsewhere as being legal spouses in England for the purposes of remarriage, spousal support obligations, the legitimacy of children, and succession. The fact that the marriage took place in another country is obviously part of the reason why public policy does not intervene here, but so are the very different issues presented by these cases. The question is not as to the parties’ ability to marry but as to the consequences of a marriage that has taken place. Protecting the interests of family members is a value shared by English and by the foreign law, and outweighs whatever anomaly is produced in the domestic legal system by recognizing a polygamous union as a marriage.
Thus, our continued support for expanded recognition of valid foreign polygamous marriages is not inconsistent with the argument that we will make here against opening up civil marriage to multiple parties.
II. Decriminalizing Polygamy ≠ Opening Up Civil Marriage to Multiple Parties
It is important to clarify that repealing or failing to enact criminal sanctions against polygamy does not signal support for polygamy and is distinct from the issue of opening up civil marriage to multiple parties. Canada’s criminal sanction against polygamy is not needed to bolster the country’s “cultural commitment” to monogamy or character as a monogamous country. There are many monogamous countries in the world, including Great Britain, Canada’s “mother country,” that do not criminalize polygamy.
In this context, it is important to distinguish polygamy from bigamy. As the terms are used in Canada’s Criminal Code and in this Essay, “bigamy” is defined as partaking in a form of marriage while married to someone else. “Polygamy” is the practice of living in a “conjugal relationship with more than one person at the same time.” The bigamy law is aimed at deceptive conduct. It punishes those who bigamously marry an innocent victim (and also couples who seek some advantage by entering into a bigamous marriage). The deceptive nature of bigamy was emphasized by an Ontario judge who said,
The essential gravity of the offence remains the deception which the bigamist exhibits, in some cases, where he has said nothing about the original marriage to the new partner; but, perhaps, more importantly which he exhibits in all cases by the falsification of state records in the application for the marriage licence.
While in cases of bigamy the existence of a prior marriage is kept secret from the innocent spouse, society at large, or both, polygamy involves no such secrecy or deception. There may be reasons to impose criminal sanctions against the deceptive practice of bigamy. But it is much harder to justify criminalization of the open practice of polygamy among consenting adults when behaviors such as adultery and group sex have largely been decriminalized. It is important to note, however, that some use the term “polygamy” to mean “bigamy.” For example, a reporter wrote that “polygamy” is illegal in Britain and punishable by imprisonment for up to seven years, but polygamy is not a criminal offense in Britain, and it is bigamy that is punishable by imprisonment for up to seven years. This Essay addresses polygamy specifically, not bigamy.
The state’s purposes in criminalizing certain conduct are different from the state’s purposes in supporting marriage. The general purpose of criminalization is to deter, denounce, and exact retribution for harmful behavior. It may be concluded that there is no justification for criminalizing the open practice of polygamy among consenting adults, but this does not automatically mean the state has an interest in supporting polygamous marriages. “What people do in the privacy of their own home with other consenting adults may be their own business, but when couples seek a public status, a state sanction, or state benefits, the matter becomes one of social and government concern.” To refrain from criminalizing a behavior is distinct from supporting or promoting it.
III. Marital Status of Parents Should Not Affect Rights of Children
In jurisdictions where children born outside of wedlock do not have the same rights as those born to married parents, it could be argued that civil marriage should be opened up to multiple parties so that the children born in these plural unions will be protected. For example, there may be concern that a child born to a second “wife” who is not legally married to the father will not have the same rights of support and inheritance as a child born to a first wife who is legally married to the father. Should a child suffer because of the extra legal living arrangements of the parents? We would argue that this is not a good reason to open up civil marriage to multiple parties. If the concern is protection of the rights of children, it is better to address this concern directly.
In many jurisdictions the rights of children are not directly dependent on the marital status of the parents, and we argue that this is good policy and consistent with the Convention on the Rights of the Child (CRC). Article 2(1) of the CRC provides:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
When drafting the CRC, some parties proposed including a specific provision to ensure that children born outside of wedlock would enjoy the same legal rights as those enjoyed by children born within wedlock. However, states were unable to reach agreement on such a provision. Nevertheless, the United Nations Children’s Fund (UNICEF) and the Committee on the Rights of the Child have taken the view that children are entitled to the various rights under the CRC regardless of the marital status of the parents. For example, in regard to the right of a child to maintain contact with both parents, UNICEF has said, “Countries that do not enable fathers of children born outside marriage to assume parental responsibilities risk being in breach of the Convention (bearing in mind that article 9 allows for parents and children to be separated when necessary for the child’s best interests).”
Many countries have taken steps to eliminate or at least reduce legal distinctions between children born within and those born outside of wedlock. In Canada, the provinces and territories have enacted legislation to eliminate discrimination against “illegitimate” children. For example, in the province of Ontario, the Children’s Law Reform Act provides, “Any distinction at common law between the status of children born in wedlock and born out of wedlock is abolished and the relationship of parent and child and kindred relationships flowing therefrom shall be determined for the purposes of the common law in accordance with this section.” Similarly, the United States Supreme Court has repeatedly struck down statutes that differentiate between children born in and out of wedlock, stating that “imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth.”
If the marital status of parents has no direct legal implications for their children, then disallowing polygamy (or any other form of marriage) will also have no effect on the legal rights of the parties’ children. Children born to unmarried parents will have the same rights of inheritance, support, etc., as children born within wedlock. In this legal context, opening up civil marriage to multiple parties is not required in order to protect these rights. The issue then becomes not whether to extend legal protections to the children but whether to extend marital status and spousal rights and obligations to multiple parties.
It could be argued that children are indirectly affected by the marital status of their parents, even if discrimination against “illegitimate” children is eliminated. For instance, in debates on same-sex marriage, it has been asserted that “children are better provided for in the setting of a male-female marriage.” This argument was not successful in Canada or in other states that have opened up civil marriage to same-sex couples. However, the state’s interest in providing the optimal environment for the rearing of children and whether this justifies restriction of marriage to two persons will be addressed in the next section.
IV. The State’s Interest in Marriage
The state asserts an interest in marriage that justifies both the extension of status and incidents of marital status to qualifying parties and the exclusion of non-qualifying parties. Before moving to a discussion of the state’s interest in marriage, it must be acknowledged that legal developments over the past half century have made the task more difficult.
Traditionally, marriage, and only marriage, conferred spousal status and the incidents of marriage. The rules regarding entry into and exit from marriage were relatively strict in the common law. A historic and often-quoted definition comes from the mid-nineteenth century English case, Hyde v. Hyde: “marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.” The incidents of marriage were extended only to those who were validly married. And married parties had little freedom to modify the incidents of marriage by agreement in the common law world.
Once married, couples then had a public duty to remain married. Divorce was available only if a marital fault, such as adultery, was proven, and the state was suspicious of attempts to obtain a divorce in the absence of marital fault simply because the parties no longer wished to be married. The King’s or Queen’s Proctor would investigate divorce proceedings where collusion or some other irregularity was suspected and oppose the granting of a decree absolute if the suspicion was founded.
Today, the rules regarding who may marry have been liberalized in many Western jurisdictions. In Canada, for example, restrictions on marrying one’s relatives have been significantly reduced, and civil marriage has been opened up to same-sex couples. An increasing number of states in the United States now permit same-sex marriage, with states permitting same-sex marriage now forming a majority in the country.
Exit from marriage has also been made easier. We no longer take the view that, in the absence of a matrimonial fault, couples have a duty to their children and to the state to remain married. In most Western jurisdictions, no-fault divorce is now freely available.
As well, the incidents of marriage have been “unbundled” from the status of marriage. Cohabiting couples now have many of the mutual rights and obligations enjoyed by married couples and are entitled to many of the same employment and government benefits. In Canada, most provinces and territories extend spousal support rights and obligations to unmarried couples who have cohabited for a certain period. As well, three provinces and two territories have also extended marital property rights to unmarried couples. Australia and New Zealand also extend varying degrees of marital rights and obligations to unmarried cohabitants. By contrast, in the United States, it is rare for unmarried cohabitation rights to be conferred —though some states offer registered domestic partnerships.
Parties also have more freedom to tailor the rules governing their relationship. Many jurisdictions permit parties to contract out of or modify the incidents of marriage (or for cohabiting parties to contract out of the incidents of marriage that have been extended to cohabitation).
These legal developments—easier entry into and exit from marriage and the unbundling of the incidents of marriage from the status of marriage— could make it harder for the state to credibly claim an interest in marriage. Because the door to marriage has been opened so wide, it is harder to justify barring it against advocates of polygamy. Because no-fault divorce is readily available and the incidents of marriage have been extended to unmarried couples, the legal significance of marriage has been reduced.
It is certainly possible to take from this that the state interest in marriage has diminished. Brian Bix has said,
When a state reduces the benefits that accrue from marriage (by either removing the benefits or making them available to non-married couples or individuals) or makes it easier to leave the institution of marriage, it is in effect expressing a reduced interest in people becoming and staying married, despite any contrary message conveyed through public rhetoric.
On the other hand, it may be argued that these family law reforms do not indicate diminished state interest but rather a shift in the nature of that interest. Nancy F. Cott has argued,
These divorce reforms not only intended to treat men and women equally but also addressed the state’s interest in securing adequate support after divorce for all family members. . . . The reform of custody and support arrangements reiterated that the government’s stake in marriage and divorce in the late twentieth century was economic far more than it was moral.
In this context of apparently weakened legal significance of marriage and shifting, if not diminished, state interest in marriage, can a surviving state interest be identified that justifies the current support and regulation of monogamous marriage and the continued exclusion of polygamy? Marriage has been identified as a basic civil right. “[M]arriage is a fundamental liberty right of individuals, and because it is that, it also involves an equality dimension: groups of people cannot be fenced out of that fundamental right without some overwhelming reason.” The state must show that it has an interest that justifies exclusion of multiple parties from the right to civil marriage.
Courts have often asserted that the state has a strong interest in marriage, without elucidating the nature of this interest. For example, the Supreme Court of British Columbia stated in 2001, “The legitimacy of the state’s interest in marriage is beyond question. There is no need for scientific evidence. The importance of the essential character of marriage to Canadian society is a matter of common sense understanding and observation.” In order to determine the nature of the purported state interest in marriage, it is helpful to look at the recent challenges to the restriction of marriage to couples of the opposite sex.
Many assertions regarding the state’s interest in marriage have been made in the context of same-sex marriage debates. One such assertion was that only opposite-sex “marriage advances the state’s interest in ensuring the birth of children in the setting most likely to ensure their well-being and protection.” The importance of opposite-sex marriage to procreation was addressed by the Supreme Court of Canada in 1995, prior to the opening up of civil marriage to same-sex couples, when it addressed a challenge to the exclusion of same-sex couples from a state benefit scheme available to opposite-sex couples. The Court said,
Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d’être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.
In the challenges to the exclusion of same-sex couples from civil marriage, it was again argued that “marriage remains the primary means by which humankind perpetuates itself in our society.”
In Canada and other jurisdictions that now allow same-sex marriage, the procreation argument was rejected, largely because of the fact that many same sex couples have children as a result of adoption, assisted reproductive technologies, or from previous relationships, and some opposite-sex married couples do not have children. Therefore, the procreation argument would not be successful in regard to challenges to the exclusion of multiple parties from civil marriage. Even if the multiple parties who wished to marry were of the same sex, there would be the possibility of children. And if the multiple parties were not of the same sex, procreation by the parties to a polygamous marriage would be possible.
B. Optimal Arrangement for Rearing Children
Although the procreation argument is unlikely to succeed, it would be possible to argue that the state’s interest in providing the optimal environment for rearing children justifies restriction of marriage to two persons (just as it was argued, generally unsuccessfully, in the same-sex marriage challenges that this interest justified the restriction of marriage to persons of the opposite sex, a claim we are not supporting here). A body of research shows that children born within polygamous marriages fare worse than other children. They are at greater risk of experiencing marital conflict, family violence and family disruptions, marital distress, particularly related to high levels of unhappiness of women in polygamous unions, the absence of the father, and financial stress.
C. Equality of the Parties and Mutual Support
A stronger argument would be that the state’s interest in freely chosen, committed, stable relationships of equality that provide for the mutual support of the parties justifies the exclusion of multiple parties from civil marriage. Marriages involving multiple parties may be inherently unequal and undermine the well-being of the parties.
Polygamy in its usual historical form has almost always been in the form of polygyny, one husband with multiple wives. This form of polygamy has long been associated with gender inequality by Western commentators, and this remains the case. In particular, the United Nations has consistently taken the position that polygamy contravenes women’s equality rights. The U.N. Committee on the Elimination of Discrimination Against Women, which monitors compliance of states parties to the Convention, issued a general recommendation in 1992 that included the following:
Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law.
This violates the constitutional rights of women, and breaches the provisions of article 5(a) of the Convention.
Social scientists who have closely studied the condition of women in societies that practice polygamy support the conclusions of the United Nations. In one study of Sudanese women, the researchers concluded:
Women do not like polygamy but cannot do anything about it. Divorce is the de facto right of men in the Sudan, whatever the behaviour of the husband. Only one of the respondents tried to gain a divorce from her husband and she could not make the legal system work in her favour and so gave up. Men can and do divorce women when they want too, although this was comparatively rare among our interviewees. The fact that men can take another wife or divorce their existing wife is a source of insecurity and anxiety for women and helps to ensure their adherence to conservative social norms in areas like reproduction, circumcision, work etc.
Polygamy has almost always taken the form of polygyny, in accordance with religious or customary law. Nevertheless, a new civil law could allow for multiple-party marriage that was not limited to polygyny but would allow for one wife with multiple husbands or multiple parties of one sex. Martha Nussbaum has suggested that there are no good legal arguments for opposing such marriages: “The legal arguments against polygamy, however, are extremely weak. The primary state interest that is strong enough to justify legal restriction is an interest in the equality of the sexes, which would not tell against a regime of sex-equal polygamy.”
We contend that the state’s interest in freely chosen, committed, stable relationships of equality that provide for the mutual support of the parties justifies the exclusion of multiple parties from civil marriage, even if the proposed regime is “sex-equal polygamy.” We speculate that even under a sex equal regime, most multiple party marriages would involve one man with multiple wives. This speculation is based on the fact that while there is little support or demand for polygamous marriage in monogamous countries, the extra-legal “plural unions” that do exist within them involve one man with multiple “wives.” There is some evidence that more men than women approve of polygamy. Islam, a major world religion that permits polygamy, allows only polygyny, not polyandry. It seems likely, then, that those taking up the option of “sex-equal polygamy” would largely be one man and multiple wives and that the problem of sex inequality would play out, even within a purportedly “sex-equal” regime.
But even if this were not so, the free choice of parties to enter marriage would be undermined by the opening up of civil marriage to multiple parties. This is because in cases where a couple disagrees as to whether or not to take another spouse, the party who did not want an additional spouse may be pressured to accept a new spouse or face divorce. Patrick Parkinson has suggested a possible solution to this problem: “One approach would be to require the consent of the Family Court to a polygamous marriage, after an enquiry, assisted by the Family Court Counselling Service, to ensure that the parties to the initial marriage and to the new marriage gave a full and free consent.” But this sort of arrangement would not address the problem that a choice between a new spouse or divorce is not a free choice. Many polygamous regimes around the world include the requirement that the spouses consent to the taking of a new spouse, but in the context of freely available divorce, this consent requirement does not protect against having a new spouse imposed against one party’s wishes.
The addition of a new spouse to a marriage may have the effect of reducing the share of emotional support, care and nurturing, financial support, and marital property available to the first spouse and his or her children. Even if the new spouse brings additional financial resources to the marriage, if the parties to the marriage are heterosexual and the marriage involves one man and multiple wives, the husband will be dividing his time and attention among his wives. The state’s interest in marriage as an institution that provides for the mutual support of spouses could thus be undermined by multiple-party marriage.
Polygamy, unlike same-sex marriage, strikes at the monogamous character of Western countries and undermines gender equality. While we believe that polygamy should not be a crime, the state is justified in excluding from civil marriage a fringe practice at odds with the country’s cultural norms, values, and rights.
Despite the arguably diminished legal significance of marriage, the state still has and should reaffirm its interest in marriage. The relativistic notions that the shape of marriage should be left to individual choice without reference to state interest and that “socially undesirable marriages . . . take place for many, many reasons and we cannot and do not attempt to legislate to prevent those marriages” should be abandoned. We oppose the opening up of civil marriage to multiple parties because to do so would compromise the state’s interest in providing an optimal environment for the rearing of children and in supporting freely chosen, committed, stable relationships of equality that provide for the mutual support of the parties.